in order to assist the court in providing a proper charge to the jury. See Fed.R.Cr.P. 30. A charging conference is, however, not required of state courts by the federal Constitution, nor is it required by federal constitutional law to be transcribed if held.
According to the petition "no one" - by definition including petitioner - "could recall who the missing witness was." If a witness was of insufficient importance for the defendant to recall who that witness was - and still cannot even in the habeas petition provide an explanation of the importance if not the name of the witness, it is difficult to imagine that a missing witness instruction was appropriate, much less that its absence would justify reversal. Moreover, a missing witness instruction is merely a more formal articulation of an inference which a jury may draw or not draw on the basis of their ordinary experience. See generally United States v. Nichols, 912 F.2d 598, 601 (2d Cir. 1990); People v. Gonzalez, 68 N.Y.2d 424, 502 N.E.2d 583, 509 N.Y.S.2d 796 (1986); Stier, "Revisiting the Missing Witness Inference," 44 Md L Rev 137 (1985). Petitioner's argument relates at most to possible failure to give instructions which merely reinforce the availability of commonsense inferences a jury may or may not choose to draw. See Solis v. Walker, 799 F. Supp. 23 (SDNY 1992).
A lesser included offense instruction is neither a federal constitutional requirement nor a matter that could not be argued without a transcript of the charging conference. All that would be necessary would be a concession that no such instruction was given, together with a description of the nature of the evidence against petitioner, not claimed to be absent here. These elements would permit an argument to be presented as to whether or not a lesser offense charge should have been given, and if so whether failure to do so would warrant reversal of petitioner's conviction.
Petitioner asserts that failure of his appellate counsel to take further steps to obtain a potential substitute transcript constituted ineffective assistance justifying habeas relief. No case has been cited where ineffective appellate counsel was a basis for vacating an otherwise valid state conviction. In this instance, petitioner was obviously aware of the absence of the transcript because of the holding of the reconstruction hearing prior to completion of his appeals in the state courts. Petitioner could have asked his attorney to make such further efforts. He could also have sought, instead, to seek to take advantage of the absence of the transcript.
In any event, there is no indication that the alleged ineffective assistance was raised in any state court application as required by 28 U.S.C. 2254(b).
The petition is denied. Because of its absence of merit, any appeal filed would be frivolous and not brought in good faith; consequently a certificate of probable cause or in forma pauperis relief under Fed.R.App.P. 24 or 28 U.S.C. 1915 respectively would be inappropriate.
Dated: White Plains, New York
December 13, 1993
/s/ John S. Martin, USDJ
VINCENT L. BRODERICK, U.S.D.J.
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