The opinion of the court was delivered by: MUKASEY
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.
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.
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).
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 ...