language relating to the nature and extent of inferences that can be drawn based on state law evidentiary rules does not purport to be, nor is there any indication that it would, present a federal constitutional issue.
The jury found petitioner guilty on all of the evidence. Significantly the jury was told that possession under the circumstances of that case "will" -- but not that it must -- "justify" (not compel) an inference of guilt. Where as here the jury instructions are permissive, not mandatory, there is no constitutional violation. See Sullivan v. Louisiana, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182 (1993) or Sandstrom v. Montana, 442 U.S. 510, 514, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
Jurors can and are expected to apply common sense in evaluating evidence and unless the instructions are egregiously wrong, the outcome is unlikely to be poisoned. See Victor v. Nebraska, Dkt. Nos. 92-8894 & 92-9049, 127 L. Ed. 2d 583, 1994 U.S. LEXIS 2490, 62 U.S.L.W. 4179, 114 S. Ct. 1239 (U.S. 1994), 1994 WL 87447 (jury instructions did not create reasonable possibility that jury applied unconstitutional standard in violation of Due Process Clause of the Fourteenth Amendment).
This case is distinguishable from United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), in that in Tucker, the prior conviction had been conclusively determined to have been unconstitutional, not merely subject to reversal on procedural grounds or disapproved instructions. In contrast there is no basis to find that petitioner's prior state conviction was unconstitutional in any way.
Tucker also ordered relief much less difficult to arrive at, a remand within the federal court system for resentencing, not a finding of violation of the Fourteenth Amendment. Here, petitioner, a state prisoner, must establish that the sentence offends the Fourteenth Amendment and bears the burden of showing that his sentence was egregious in relation to the facts before the sentencing judge.
There is no basis here for finding that petitioner was sentenced on "materially untrue" assumptions or "misinformation" in violation of due process. United States v. Pugliese, 805 F.2d 1117, 1123 (2d Cir. 1986) (quoting Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948)).
The sentence was within statutory limits and found by the judge reviewing petitioner's C.P.L. § 440.20 application to be "within the discretion of [the] Court and based upon sound reasoning and judgment." County Court Opinion at 22. See Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948); Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir. 1979).
The Court finds no federal constitutional violation with respect to petitioner's claim that the sentence of twenty-five (25) years to life, or the recommendation to the Parole Board that he be kept "for as long a period as is possible under the law," Sentencing Minutes at 22, is excessive in comparison to those imposed under plea bargains on his co-defendants. Having gone to trial, petitioner necessarily placed the full details of the crime squarely before the sentencing judge, who acted on the facts before him.
Petitioner cannot sustain his claim that due process rights were violated when he failed to testify allegedly on the basis of the trial court ruling that his then-valid prior conviction was admissible for impeachment purposes. To preserve such a claim for review, a defendant must testify, Luce v. United States, 469 U.S. 38, 41, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). In the absence of actual testimony in the context of the trial, "any possible harm flowing from" a trial court's ruling permitting impeachment by a prior conviction is "wholly speculative." Id. at 41, 43; Carroll v. Hoke, 695 F. Supp. 1435, 1439-40 (E.D.N.Y. 1988), aff'd 880 F.2d 1318 (2d Cir. 1989).
There is in any event no basis for inferring that impeachment of the petitioner by reference to the prior conviction even though later reversed would have been unconstitutional. Petitioner could, of course, have pointed out during his testimony that the conviction was pending on appeal. However, the 1973 conviction was based on a jury finding after hearing all the evidence that the defendant was guilty of murder beyond a reasonable doubt; the only difficulty seems to have been that the trial judge gave an instruction about an optional (nonbinding) inference in a way subsequently disapproved by the Appellate Division.
Petitioner's complaint of prejudicial publicity relates to media coverage during the trial which, unlike pretrial publicity, cannot be dealt with by a change of venue - but is susceptible to judicial control through appealing to the jury to exercise the majesty and dignity of their function as the factfinders rather than abdicating that function and turning it over to the media to select the evidence. There is no indication that the jury considered media versions of the facts rather than the trial evidence or that any protective instructions were requested and refused.
Petitioner's newly-raised (not exhausted) claim to have been incompetent at the time of trial is not supported by any specific facts. Petitioner relies on vague claims that he received psychiatric treatments at unspecified times after his conviction. Although this claim cannot be the basis for granting relief because it is unexhausted under 28 U.S.C. § 2254(b), it is in the interest of federalism to deal with the merits now because of the total lack of factual basis for the argument. Washington v. James, 996 F.2d 1442, 1451 (2d Cir. 1993), cert. denied 114 S. Ct. 895, 127 L. Ed. 2d 87 (1994).
In all respects the petition is lacking in merit.
The application for a writ of habeas corpus is denied. The clerk shall enter judgment.
For the reasons set forth above, there is no merit to this petition, and any appeal taken would not be taken in good faith; accordingly no certificate of probable cause will issue under Fed.R.App.P. 22(b).
Dated: White Plains, New York
March 30, 1994
CHARLES L. BRIEANT, U.S.D.J.