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EHINGER v. MILLER

April 18, 1996

HERBERT EHINGER, Petitioner, against DAVID MILLER, Superintendent of Eastern Correctional Facility, Respondent.


The opinion of the court was delivered by: PECK

 TO THE HONORABLE MICHAEL B. MUKASEY, United States District Judge:

 Petitioner Herbert Ehinger seeks a writ of habeas corpus, alleging that he was denied his right to effective assistance of trial and appellate counsel and denied due process of law in violation of the sixth and fourteenth amendments of the Constitution. (Petition, 10/4/95, PP 12(A) & 12(B).) For the reasons set forth below, because Ehinger's petition is a "mixed" petition containing both exhausted and unexhausted claims, I recommend that Ehinger's habeas petition be denied.

 PROCEDURAL BACKGROUND

 On May 24, 1988, petitioner Herbert Ehinger was convicted of kidnapping in the first degree, robbery in the first and second degrees, and grand larceny in the third degree, and was sentenced to concurrent prison terms of 20 years to life on the kidnapping count, 7 to 21 years on the first degree robbery count, 4 to 12 years on the second degree robbery count, and 1 to 3 years on the grand larceny count. (Affidavit of Assistant Attorney General Dian Kerr McCullough in Opposition to the Petition, dated 3/13/96, at P 2; see Petition, PP 2-4.) The crimes for which Ehinger was convicted arose from a dispute he had with his roommate, Hirokai Murai, in which Ehinger beat and kicked Murai, tied him up and handcuffed him, and locked him in their apartment for about a week. See People v. Ehinger, 152 A.D.2d 97, 98, 547 N.Y.S.2d 302, 303 (1st Dep't 1989).

 Ehinger directly appealed his conviction to the Appellate Division, First Department, claiming that: (1) the term "abduct" in the New York kidnapping statute is unconstitutionally void for vagueness, (2) the trial court erred by refusing to permit certain evidence of an offer by the complainant, Murai, to drop the charges for a price, (3) the trial court erred by refusing to allow Ehinger to confer with counsel during cross-examination, (4) Ehinger was denied a fair trial by the prosecutor's improper summation, (5) Ehinger was denied a fair trial and his right to confront a witness, Murai, due to an unqualified interpreter, (6) denial of his Clayton motion was an abuse of discretion by the court, and (7) he was improperly sentenced. (McCullough Aff. Ex. A: Ehinger's App. Div. Brief at 1.) By an Opinion and Order dated November 21, 1989, the First Department unanimously affirmed Ehinger's conviction. People v. Ehinger, 152 A.D.2d 97, 547 N.Y.S.2d 302 (1st Dep't 1989). The Court of Appeals denied leave to appeal on January 24, 1990. People v. Ehinger, 75 N.Y.2d 812, 552 N.Y.S.2d 562, 551 N.E.2d 1240 (1990).

 Ehinger also moved, pursuant to NY CPL 440.10, *fn1" to set aside his conviction on the grounds that material evidence brought out at trial was false and that the prosecution knew it to be false. (McCullough Aff. P 3.) The Supreme Court, New York County denied the motion on December 6, 1990, and the Appellate Division denied leave to appeal on June 11, 1991. (Id.)

 On May 17, 1995, Ehinger filed a motion for a writ of error coram nobis to the Appellate Division, First Department, claiming that he was denied effective assistance of appellate counsel. (McCullough Aff. P 8 & Exs. F-G.) Ehinger claimed that appellate counsel was ineffective for failing to include, in his direct appeal, a claim for ineffective assistance of trial counsel. On August 31, 1995, the First Department denied the motion. (McCullough Aff. P 8 & Ex. H.)

 Ehinger's present habeas petition appears to raise three grounds: (1) that trial counsel was ineffective for failing to challenge the alleged constitutional vagueness of the term "abduct" in the kidnapping statute, (2) that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness, and (3) that appellate counsel was ineffective for failing to argue that Ehinger was convicted on a standard of proof less than guilt beyond a reasonable doubt. (See Petition PP 12 (A) and 12(B).) *fn2"

 ANALYSIS

 EHINGER'S HABEAS PETITION MUST BE DISMISSED BECAUSE HE HAS FAILED TO EXHAUST HIS STATE COURT REMEDIES

 Because Ehinger has failed to exhaust his state court remedies with respect to his federal habeas petition claim for ineffective assistance of trial counsel, the Court must dismiss his entire petition.

 A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the prisoner first exhausts his available state remedies. 28 U.S.C. ยง 2254(b). *fn3" While Section 2254 does not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of total exhaustion in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The Supreme Court held:

 
Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting ...

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