a tempting one, it is contrary to harmless error principles and to the "necessary and proper" principle which permits any reasonable means to achieve an end.
Petitioner makes the common error of assuming that every procedural irregularity constitutes a constitutional violation. Acceptance of this assumption would mean that if a missed beat can be detected anywhere in the intricacies of criminal procedure, the proceedings will be negated even if no objection was made at the time and the missed beat (or technical lapse) had no adverse effects. Per se prejudice justifying vacatur of a guilty plea, of a conviction, or of a sentence is not called for by anything in the Constitution of the United States in regard to any events occurring in this case as set forth in the petition in light of the transcript of petitioner's plea of guilty.
Any violations of state law in connection with the interpretation of petitioner's plea would be matters for the state courts, which found no basis for vacating the plea. Federal procedures for interpreters as set forth in 28 USC 1827 - 1828, discussed in 1988 US Code Cong & Admin News 5982, 6018 are applicable to federal proceedings but they are neither constitutional in nature nor required to be followed in state courts. See generally Astiz, "A Comment on Judicial Interpretation of the Federal Courts Interpreters Act," 14 Just Sys J No 1 at 103 (1990); 28 CFR 24.1; Fed.R.Evid. 604; in another context, see Shipley, "The Deaf Witness," 14 Litigation No 1 at 35 (ABA Fall 1987).
The presence of certain specific means to secure fairness in adjudication, such as availability of counsel for defendants in criminal cases, have been determined under the Constitution to be required, and the absence of such means is deemed to be so inherently prejudicial that no harmless error analysis is appropriate. No such constitutional violation has been claimed or is consistent with the transcript of plea.
The petition is denied. The clerk is directed to close this case.
I decline to issue a certificate of probable cause pursuant to Fed.R.App.Proc. 22; any appeal from this decision would not be taken in good faith as required by 28 USC 1915(a).
I reached the merits in this case without separate examination of exhaustion of state remedies. If even a cursory examination of the petition had suggested the possibility of substantive merit I would, of course, have had to consider whether state remedies had in fact been exhausted (28 USC 2254 (b)). I have applied the criteria set forth in Washington v. James, 996 F.2d 1442, (2d Cir. 1993). By determining this issue now, I further the interests of federalism by avoiding further litigation on a nonmeritorious contention.
Dated: White Plains, New York
September 13, 1993
VINCENT L. BRODERICK, U.S.D.J.