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EHINGER v. MILLER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


October 9, 1996

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

The opinion of the court was delivered by: MUKASEY

ORDER AND OPINION

 MICHAEL B. MUKASEY, U.S.D.J.

 Herbert Ehinger petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction of kidnapping in the first degree. After withdrawing several unexhausted claims, petitioner asserts two grounds for relief, both based on ineffective assistance of appellate counsel for neglecting to raise on appeal alleged deficiencies in trial counsel's performance. Those deficiencies are: (1) failing to challenge the alleged constitutional vagueness of the term "abduct" as defined in New York's kidnapping statute, New York Penal Law § 135.25; and (2) failing to argue that a kidnapping victim's apartment cannot, as a matter of law, be considered "a place not likely to be found" as required by New York's kidnapping statute. (Petition PP 12) This case was referred to Magistrate Judge Andrew J. Peck who, after careful consideration and analysis of the record, issued a Report and Recommendation (the "Report") on July 3, 1996 recommending dismissal of the petition. For the reasons set forth below and in the Report, the writ is denied, and the petition is dismissed.

 I.

 The relevant facts and testimony, as set forth in the Report, are as follows: In June 1987, the victim in this case, Hirokai Murai, was beaten and subdued by his roommates Herbert Ehinger and Suzanne Marel after a quarrel over a bounced rent check. Murai was bound and gagged and over the next five days was held hostage in his own apartment.

 During the five days, Murai was repeatedly kicked and beaten. Ehinger and Marel tortured Murai until he gave them the personal access code to his bank account and signed withdrawal slips from his money market account. While holding Murai captive, Ehinger and Marel proceeded to empty the victim's bank accounts and remove certain of his personal possessions from the apartment.

 On the fifth day of captivity, Murai was able to escape while Ehinger and Marel were sleeping. Murai summoned the police who arrested both Ehinger and Marel and recovered over $ 4000 of the victim's money and several of his personal items from a hotel room the two had rented.

 Ehinger was tried in the Supreme Court, New York County on a charge of kidnapping in the first degree. The trial court instructed the jury as to the nine elements involved in kidnapping, all of which were taken verbatim from the state's approved jury instructions. See N.Y. Crim. Jury Instructions, PL § 135.25(1). The charge stated in part that, "the crime of kidnapping among other things requires proof of abduction" and that "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 a place where he is not likely to be found or using or threatening to use deadly physical force." The charge also instructed the jury that the restraint used must constitute 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." Neither, Ehinger's nor Marel's counsel objected to the kidnapping charge.

 The jury convicted Ehinger of kidnapping in the first degree, robbery in the first and second degrees, and grand larceny in the third degree. 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).

 II.

 Ehinger appealed his conviction to the Appellate Division, First Department, claiming, inter alia that the term "abduct" in the New York kidnapping statute is unconstitutionally vague. (McCullough Aff., Ex. A; Ehinger's App. Div. Brief at 1) By Opinion and Order dated November 21, 1989, the Appellate Division unanimously affirmed Ehinger's conviction. People v. Ehinger, 152 A.D.2d 97, 547 N.Y.S.2d 302 (1st Dep't 1989). On January 24, 1990, the Court of Appeals denied leave to appeal. People v. Ehinger, 75 N.Y.2d 812, 552 N.Y.S.2d 562, 551 N.E.2d 1240 (1990).

 Ehinger then moved, pursuant to NY CPLR § 440.10, to set aside his conviction on the ground that material evidence presented by the state at trial was untrue 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 neglecting to include, in his direct appeal, a claim of ineffective assistance of trial counsel. On August 31, 1995, the First Department denied the motion. (McCullough Aff. P 8 & Ex. H)

 On October 12, 1995, Ehinger filed this petition pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus, alleging he was denied his right to effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments to the Constitution.

 The petition was referred to Magistrate Judge Peck pursuant to Fed. R. Civ. P. 72(b). On July 3, 1996, Magistrate Judge Peck issued his characteristically thorough Report analyzing petitioner's claims for relief. He found no constitutional violation that might warrant post-trial relief. On July 15, 1996, petitioner submitted his two nearly identical objections to the Report. First, petitioner argues that Magistrate Judge Peck used the Appellate Division's reasoning to determine that the statute was not unconstitutionally vague. This, petitioner concludes, is the wrong test to determine whether the statute is void for vagueness, and therefore the wrong test to determine whether counsel was ineffective. Similarly, petitioner objects to the Magistrate Judge's use of the same reasoning as the Appellate Division to determine that the phrase "a place not likely to be found," as used in the New York kidnapping statute, presents a comprehensible fact issue for determination by a jury. *fn1"

 III.

 Under Fed. R. Civ. P. 72(b) a district judge may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 149, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985). The court is required to make a de novo determination regarding those parts of the report to which any party objects, but a de novo hearing is not required. United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980)

 Petitioner objects first to the factors used by the Magistrate Judge to determine that Ehinger was not prejudiced by his counsel's failure to argue that the New York kidnapping statute is unconstitutionally vague. Petitioner argues that this court must make a separate finding as to whether the statute is void for unconstitutional vagueness and not rely on the reasoning of the Appellate Division. However, the void-for-vagueness issue is not directly before this court. Rather, the question raised by this petition is whether Ehinger's appellate counsel was ineffective for not raising, as an issue on appeal, trial counsel's ineffectiveness in not arguing that the New York kidnapping statute is unconstitutionally vague.

 To prevail on his claim of ineffective assistance of counsel, petitioner must establish that his lawyer's conduct fell below "an objective standard of reasonableness" defined by "prevailing professional norms". Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1994). Additionally, petitioner must "affirmatively prove prejudice." Id. This creates a two-prong test requiring petitioner to show that: appellate counsel made unreasonable errors, and "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Strickland test applies to both trial and appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994). The Supreme Court has also held 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. Strickland, 466 U.S. at 697.

 On appeal, the Appellate Division held that although the issue of whether the New York kidnapping statute was unconstitutionally vague was not preserved for appellate review, "the statutory reference here to a place where a victim is not likely to be found passes constitutional muster. . . ." People v. Ehinger, 152 A.D.2d 97, 100, 547 N.Y.S.2d 302, 304 (1st Dep't 1989). Thus, the Appellate Division addressed the merits of petitioner's claim. Had petitioner's appellate counsel argued that trial counsel was ineffective for failing to raise this issue, petitioner still would have lost; the appellate court found that the statute is not unconstitutionally vague. Petitioner's appellate counsel cannot be considered ineffective because petitioner could not have been prejudiced by that counsel's failure to contend that trial counsel was ineffective for failing to make a losing argument -- that the statute was unconstitutionally vague -- an argument considered in any event as if it had been raised. Therefore, his objection to the Report is without merit.

 Petitioner's second objection to the Report fails for similar reasons. Again, although the Appellate Division held that the issue as to the clarity of the statute for determining a "place not likely to be found" was not saved for appeal, the court stated that even "in the interest of justice we would find it unpersuasive." Id. The Appellate Division reached this result because "the degree of likelihood or unlikelihood of discovery of the victim's hiding place simply presented a factual question for the jury to resolve" and that it was "not susceptible to disposition as a matter of law on the record." Id., 152 A.D.2d at 100-101, 547 N.Y.S.2d at 304-305. Once again, petitioner was not prejudiced by his appellate counsel's decision not to raise trial counsel's failure to argue a losing issue. This objection to the Report is also without merit.

 * * *

 For the reasons stated above, the writ is denied and the petition dismissed.

 Dated: New York, New York

 October 9, 1996

 SO ORDERED:

 Michael B. Mukasey

 U.S. District Judge


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