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EHINGER v. MILLER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 3, 1996

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

The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

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

  By Report and Recommendation dated April 18, 1996, I recommended that the Court deny Herbert Ehinger's petition for a writ of habeas corpus because it was a "mixed" petition containing both exhausted and unexhausted claims. On April 24, 1996, Ehinger filed a document styled "Objections to Magistrate's Report and Recommendation" that contained no objection but rather withdrew his unexhausted claims. By Order dated May 22, 1996, Judge Mukasey affirmed and adopted my Report and Recommendation and re-referred the case to me to consider the exhausted claims on the merits.

 This Report and Recommendation, therefore, considers the merits of Ehinger's exhausted habeas claims that his appellate counsel was ineffective for failing to (1) raise trial counsel's ineffectiveness in failing to challenge the alleged constitutional vagueness of the term "abduct" in New York's kidnapping statute, and (2) argue that Ehinger was convicted on a standard of proof less than guilt beyond a reasonable doubt. (See Petition PP 12.) For the reasons set forth below, I recommend that Ehinger's petition for a writ of habeas corpus be denied.

 FACTS

 The Victim, Murai's, Testimony at Trial

 In June 1987, the victim in the case, Hirokai Murai, placed an ad for a roommate in the "Village Voice" newspaper. (Trial Transcript ["Tr."] at 188.) Shortly thereafter, Ehinger and his girlfriend Suzanne Marel moved in with Murai; they slept in the living room, while Murai slept in the bedroom. (Id.) Murai confronted Ehinger when Ehinger's July rent check bounced. (Tr. 189-90, 193-95.) Ehinger punched Murai in the head so sharply that Murai started to bleed. (Tr. 196.) Because of the blood on the floor, Murai slipped and fell, and Ehinger put Murai in a headlock and subdued him. (Tr. 196-97.) Ehinger called Marel into the room, and she tied Murai's legs with electrical cord and handcuffed Murai's hands behind his back. (Tr. 200-01.)

 Ehinger and Marel repeatedly kicked and beat Murai and demanded money. (Tr. 204-07.) Ehinger and Marel took Murai's Citibank bankcard from his wallet and demanded to know Murai's personal bankcard code. (Tr. 207.) Murai gave Ehinger a false code three times; each time Ehinger returned from the bank, Murai was threatened and beaten. (Tr. 207.) Ehinger and Marel "tortured" Murai to get the real code number. (Tr. 207-09.) Ehinger threatened to puncture Murai's eardrum with a match stick. (Tr. 208.) Ehinger and Marel threatened Murai with a knife, first by holding it against Murai's neck, then Ehinger attempted to thrust the knife into Murai's rectum. (Tr. 207, 210.) They also burned his hair. (Tr. 211.) Murai finally yielded to the torture and gave them the correct bankcard code. (Tr. 207-08, 210-11.) Murai only had two hundred dollars in his checking account (Tr. 190), and Ehinger made him sign a withdrawal slip so that Ehinger could withdraw money from Murai's money market account. (Tr. 232.) From July 17 to July 22, 1987, several thousand dollars were withdrawn from Murai's bank accounts with the bankcard. (Tr. 386-88.)

 For the next five days, Ehinger and Marel kept Murai tied up in his bedroom. (Tr. 214-15.) One of them always watched over Murai. (Tr. 215.) The first time Murai yelled for help, Ehinger and Marel strangled, beat and gagged Murai. (Tr. 217-19.) His captors did not feed Murai much during the five days. (Tr. 215-16.) On Sunday, after he had been held for three days, Murai was left alone and he managed to loosen his bonds. (Tr. 219-20.) He tried to get assistance from his neighbor, but when that failed, he went back into the apartment to find the key to the handcuffs. (Tr. 220.) Ehinger returned to the apartment and Ehinger and Marel subdued and beat Murai, removed the handcuffs, "hog-tied" Murai, blindfolded him, stuffed him head-first into a sleeping bag and tethered his body to a table, using a cord as a leash. (Tr. at 220-27.) The police came to the apartment in response to the neighbor's complaint of a distraught Asian male, but Ehinger successfully turned the police away. (Tr. 590-91, 693.)

 On Wednesday, July 22, 1987, after being imprisoned for five days, Murai was able to free his arms. (Tr. 240-41.) Murai waited until Ehinger was sleeping (he snored), and freed his legs. (Tr. 241-42.) Murai left the apartment and asked a neighbor for help. (Tr. 242.) The police came and arrested Ehinger and Marel. (Tr. 172-74, 244-45, 355-57.) The police recovered over $ 4,000 in cash and several thousand dollars worth of Murai's belongings from a hotel room that Ehinger and Marel had rented. (Tr. 173, 261, 358-64, 368-74.)

 Ehinger's Trial Testimony

 Ehinger testified in his defense. (Tr. 504.) Ehinger testified that when his check for the July rent bounced, Murai forced him to engage in homosexual sex acts. (Tr. 511-13.) On July 17, 1987, Ehinger came home and saw Murai hitting and sexually assaulting Marel, and so Ehinger hit Murai over the head with a jar. (Tr. 514-15.) Ehinger threatened to call the police, and tied Murai up. (Tr. 516.) Murai said that if Ehinger did not call the police, Ehinger could have $ 5,000 and certain property. (Tr. 517.) Murai gave Ehinger his bankcard to get money from the bank. (Tr. 518.) Ehinger then let Murai go. (Tr. 519.) On Sunday, July 19, Murai came into Ehinger's room with a knife and demanded his money and bankcard back. (Tr. 522.) Ehinger disarmed Murai, tied him up to talk to him, and then released him. (Tr. 524-26.) On Monday, Ehinger withdrew $ 1,000 from Murai's account and took some of Murai's property as "security" for Murai to pay him the balance of the promised $ 5,000. (Tr. 526-27.) On Wednesday, July 22, while Ehinger and Marel were moving out of the apartment, Murai returned with the police, who arrested them. (Tr. 527-29.) Ehinger directly denied Murai's testimony that he was "tied up for five straight days from July 17 to July 22." (Tr. 529-30.) *fn1"

 The Court's Charge to the Jury

 At the charge conference outside the jury's presence, the trial judge stated that he planned to "instruct [the jury] with respect to the nine elements involved in kidnapping in the first degree, all of which are taken from criminal jury instructions." (Tr. 614.) Defense counsel made no objection. (See Tr. 614-20.) The judge also noted that defense counsel requested a charge on "kidnapping in the second degree as a lesser included offense." (Tr. 615.)

 The trial judge charged the jury as to kidnapping the first degree, as follows:

 

That section of the Penal Law [§ 135.25] insofar as it is applicable to this case reads as follows:

 

"A person is guilty of kidnapping in the first degree when he abducts another person and when he restrains the person abducted for a period of more than 12 hours with intent to accomplish or advance the commission of the felony."

 

The crime of kidnapping among other things requires proof of abduction. Abduction as defined by out law consists of a certain kind of restraint plus specified additional factors. According to the law a person restrains another person when he intentionally and unlawfully restricts such person's movements in such a manner as to interfere substantially with his liberty.

 

By moving him from one place to another or by confining him either in the place where the restriction commenced or at a place to which he has been moved without consent and with knowledge that the restriction is unlawful.

 

According to the law a person abducts another person when he restrains a person with intent to prevent his liberation by either secreting or holding him in the place where he is not likely to be found or using or threatening to use deadly physical force.

 

Kidnapping requires proof of abduction and abduction requires proof of restraint plus the additional factors have just specified. In order for you to find a defendant guilty of this crime, the People are required to prove from all of the evidence in the case beyond a reasonable doubt each of the following nine elements:

 

One, that from on or about July 17, 1987 to on or about July 22, 1987 in the County of New York, the Defendant tied up Hiroaki Murai thus restricting his movements in such manner as to interfere substantially with his liberty.

 

. . . .

 

Seven, that the restraint constituted what the law calls abduction.

 

That is to say that a Defendant so restrained Mr. Murai with intent to prevent his liberation by secreting or holding him in a place where he was not likely to be found.

 (Tr. 767-70, emphasis added.) *fn2" The trial judge's charge is verbatim from the approved pattern jury instruction. See N.Y. Crim. Jury Instructions, PL § 135.25(1). Neither Ehinger's nor Marel's counsel objected to the kidnapping charge. (Tr. 796.)

 The jury found Ehinger guilty of kidnapping in the first degree, robbery in the first and second degrees, and grand larceny in the third degree. (Tr. 856-57.) Ehinger was sentenced to 20 years to life on the kidnapping count, and lesser concurrent sentences on the other counts. See People v. Ehinger, 152 A.D.2d 97, 101, 547 N.Y.S.2d 302, 305 (1st Dep't 1989). Ehinger's direct appeal and state court collateral attacks on his conviction are described in the Court's April 18, 1996 Report and Recommendation (at pages 2-4).

 ANALYSIS

 EHINGER'S HABEAS CORPUS PETITION SHOULD BE DISMISSED BECAUSE HE HAS FAILED TO PROVE THAT HIS APPELLATE COUNSEL WAS INEFFECTIVE *fn3"

 Ehinger claims that his appellate counsel was ineffective because counsel failed to raise two objections to his conviction for kidnapping: first, that trial counsel was ineffective or not challenging the kidnapping statute as unconstitutionally vague, and second, that Ehinger was convicted of kidnapping on a standard of proof less than guilt beyond a reasonable doubt. (Petition P 12.)

 A. Strickland V. Washington's Two-Part Test To Determine Ineffective Assistance Claims

 The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064.

 

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

 Id. at 689, 104 S. Ct. at 2065.

 Second, the defendant must show that he was prejudiced by counsel's performance. Id. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

 

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated or trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

 Id. at 695-96, 104 S. Ct. at 2069 (emphasis added).

 The Supreme Court has counseled that these principles "do not establish mechanical rules." Id. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697, 104 S. Ct. at 2069.

 The Strickland test applies to appellate as well as trial counsel. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Peck, M.J.).

 On appeal, counsel is not required to raise every colorable claim urged by the client, but is entitled to focus on key issues while "winnowing out weaker arguments." E.g., Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987 (1983); Mayo v. Henderson, 13 F.3d at 533; Benn v. Stinson, 917 F. Supp. at 206. Further, reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. E.g., Jones v. Barnes, 463 U.S. at 754, 103 S. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 216, 83 L. Ed. 2d 146 (1984); Benn v. Stinson, 917 F. Supp. at 206. Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker " Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Benn v. Stinson, 917 F. Supp. at 206.

 Ehinger's appellate counsel chose eight relevant and promising issues for appeal, and presented those issues in a well reasoned brief. (See McCullough Aff. Ex. A: Brief for Defendant-Appellant to the First Department at 12-26.). *fn4" The due process rights implicated in several of the appeal points are standard and frequently successful appeal points in many criminal trials See, e.g., Benn v. Stinson, 917 F. Supp. at 207. Further, counsel properly appealed the length of Ehinger's sentence, since Ehinger was given close to the maximum sentence. *fn5" Defense counsel's lack of success on appeal provides no reason to second-guess his judgment in raising these issues. See, e.g., Benn v. Stinson, 917 F. Supp. at 207; Curzi v. United States, 773 F. Supp. 535, 542 (E.D.N.Y. 1991), aff'd sub nom. Laaman v. United States, 973 F.2d 107, 113-14 (2d Cir. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993). Ehinger does not claim that he urged his appellate counsel to not raise these issues and instead to raise trial counsel's ineffectiveness. *fn6"

 Thus, the issues raised by Ehinger's appellate counsel on his direct appeal were appropriate, and the Court will not second guess counsel's professional judgment. Nevertheless, the Court also must examine whether appellate counsel's failure to raise the two claims related to the "abduct" element of the kidnapping statute constitutes ineffective assistance under the Strickland test. There is no need for the Court to further address Strickland's first prong, however, because Ehinger cannot satisfy the second Strickland prong, that there was a "reasonable probability" that raising those issues on appeal would have lead to a different result.

 B. The New York Kidnapping Statute is Not Unconstitutionally Vague

 Ehinger's first claim of ineffective appellate counsel is that counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness for failing to challenge the kidnapping statute as unconstitutionally vague. The underpinning of this argument is that the kidnapping statute is void for vagueness. Had appellate counsel raised the ineffective assistance claim on appeal, the result would not have differed, because the Appellate Division ruled on the merits of Ehinger's vagueness attack on New York's kidnapping statute. Thus, Ehinger fails to satisfy Strickland's second prong.

 While the Appellate Division held that Ehinger had waived his objection to the vagueness of the kidnapping statute by failing to preserve it for appeal, People v. Ehinger, 152 A.D.2d at 101, 547 N.Y.S.2d at 304, the Appellate Division also considered and rejected Ehinger's "void for vagueness" challenge on its merits. Id. The likelihood that Murai would not be found if restrained in the apartment he shared with Ehinger for over 12 hours (in fact, for 5 days), was a question of fact for the jury, and this Court agrees with the Appellate Division that on the facts adduced at trial, Ehinger constitutionally could be convicted of kidnapping as matter of law. Accordingly, Ehinger's first claim of ineffective assistance of appellate counsel should be dismissed.

 The "void for vagueness" doctrine holds that "criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law." Jordan v. De George, 341 U.S. 223, 230, 71 S. Ct. 703, 707, 95 L. Ed. 886 (1951). The test is "whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Id., 341 U.S. at 231-32, 71 S. Ct. at 708. The "essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct." Id., 341 U.S. at 230, 71 S. Ct. at 707.

 In applying the "void for vagueness" test to the New York kidnapping statute, the Court must assess whether the statute is sufficiently determinate. If the general class of offenses to which the statute is directed is clearly within its terms, the statute will not be struck down as vague, even though there may be some questionable marginal cases. See, e.g., United States v. Harriss, 347 U.S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954).

 Ehinger's conviction of kidnapping in the first degree was based on a violation of New York Penal Law § 135.25, which provides that:

 

A person is guilty of kidnapping in the first degree when he abducts another person and when:

 

. . .

 

2. he restrains the person abducted for a period of more than twelve hours with intent to:

 

. . .

 

(b) accomplish or advance the commission of a felony . . .

 N.Y. Penal Law § 135.25(2)(b) (McKinney 1987). "Abduct" is statutorily defined to mean "to restrain a person with intent to prevent his liberation by . . . (a) secreting or holding him in a place where he is not likely to be found, . . . . " N.Y. Penal Law § 135.00(2) (McKinney 1987).

 Facially, the statute is sufficiently determinate because it criminalizes a general class of conduct, namely restraining a person against their will for an extended period of time. The only issue that Ehinger raises is a claim that the legislature did not intend the statute to criminalize the detention of a person in their own residence. (See Petition at 5, 5b.) However, the Jordan test does not rely on the legislative intent behind a statute, but rather on whether the statute provides a sufficiently definite warning of criminal conduct based on common understanding. See Jordan, 341 U.S. at 231-32, 71 S. Ct. at 708. Restraining someone in a jointly shared apartment is encompassed by the definition of abduct, as "secreting or holding him in a place where he is not likely to be found." Indeed, Murai was not found for five days, and the effectiveness of holding him in their shared apartment was demonstrated when the police first came and Ehinger convinced them that nothing was wrong. (Tr. 590-91, 693.)

 Because the Court agrees with the Appellate Division that the kidnapping statute is not unconstitutionally vague, Ehinger's appeal would not have been decided differently if appellate counsel raised trial counsel's alleged ineffectiveness for failure to challenge the statute. Ehinger's first ineffective assistance claim falls under Strickland's second prong.

 C. The Evidence Adduced at Trial is Sufficient to Support Ehinger's Conviction of Kidnapping in the First Degree

 Ehinger's second claim of ineffective assistance of appellate counsel is based on counsel's failure to argue that Ehinger was convicted of kidnapping on a standard of proof less than guilt beyond a reasonable doubt. (See Petition at 5, 5b.) The underpinning of this claim is also that the kidnapping statute may not be applied to restraining a person in their own residence. (Id.) Ehinger claims that element seven of the judge's charge to the jury on the kidnapping count was not proven beyond a reasonable doubt. Here, also, the Appellate Division decided this claim on the merits, and decided it adversely to Ehinger. See People v. Ehinger, 152 A.D.2d at 101, 547 N.Y.S.2d at 304-05.

 "The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 -- if the settled procedural prerequisites for such a claim have otherwise been satisfied -- the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.

 Petitioner Ehinger bears a "very heavy burden":

 

The standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

 United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 2457 (1983). Accord, e.g., United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant is "'very heavy'" an all inferences must be drawn in the government's favor). "This inquiry does not require a court to 'ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2789 (citations omitted); see also, e.g., Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

 The "jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1026 (1989)). The role of this Court is clear: "federal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution." Anderson v. Senkowski, 1992 U.S. Dist. LEXIS 13483, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992) (citations omitted), aff'd, 992 F.2d 320 (2d Cir. 1993); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony.").

 Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [Ehinger's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses, despite the inconsistencies in the evidence. . . . We cannot say that no reasonable jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981).

 Ehinger's claim is based on his view that abduct "requires a showing that some type of carrying away or substantial removal occurs so as to demonstrate a fact pattern usually associated with genuine kidnapping. No such fact pattern was proven in petitioner's case . . ." (Petition at 56.) While "traditional" kidnapping may involve such a carrying away, the New York statute is not so limited. The kidnapping statute prohibits confining the victim "either in the place where the restriction commences or at a place to which he has been moved without consent." (Tr. 767 see also N.Y. Crim. Jury Instructions, PL § 135.25(1).) In addition, the victim must be abducted, by "secreting or holding him in a place where he is not likely to be found." (Tr. 767-68; see also N.Y. Crim. Jury Instructions, PL § 135.25(1).) As the Appellate Division held, a reasonable jury could have found Ehinger guilty of kidnapping for confining Murai in the place where the restriction commenced, and by secreting or holding Murai in the apartment he shared with Ehinger, which could be a place where he was not likely to be found. As the Appellate Division stated:

 

The degree of likelihood or unlikelihood of discovery of the victim's hiding place simply presented a factual question for the jury to resolve in light of all the circumstances of the abduction and restraint, and is not susceptible to disposition as a matter of law on this record. As noted long ago by Edgar Allan Poe's great detective, C. Auguste Dupin, in the case of "The Purloined Letter," sometimes the most effective way to conceal something may be to leave it in plain view. Surely this jury was free to find that the isolation of a Japanese music student, with few local friends or acquaintances, could be most effectively accomplished by imprisonment in his own home in the very manner carried out by defendants. Indeed, defendants were successful in fobbing off the police on their first visit to the door of the apartment when the officers were summoned to the premises by an alarmed neighbor.

 People v. Ehinger, 152 A.D.2d at 101, 547 N.Y.S.2d at 304-05. This Court agrees with the Appellate Division, which found that the likelihood of Murai's discovery in these circumstances was a factual question for the jury to resolve, and which it did resolve against Ehinger

 Accordingly, Ehinger's second claim of ineffective assistance of appellate counsel for failure to challenge the sufficiency of the evidence should be dismissed because the evidence was sufficient, and thus the petition does not satisfy Strickland's second prong.

 CONCLUSION

 For the reasons set forth above, I recommend that the Court dismiss Ehinger's habeas corpus petition on the merits.

 FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. Failure to file objections may result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

 DATED: New York, New York

 July 3, 1996

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge


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