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July 3, 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:

 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.


 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.)

 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 [ยง 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.
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 ...

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