The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Petitioner pro se Joseph Bullard ("Bullard" or "Petitioner"), currently incarcerated at Sing Sing Correctional Facility, Ossining, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for Attempted Aggravated Assault Upon a Police Officer (New York Penal Law § 110/120.11), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02). The respondent Brian S. Fischer, Superintendent (the "State") has opposed the Petitioner's application which is denied for the reasons set forth below.
Bullard, pro se, filed his petition for a writ of habeas corpus on November 21, 2002, alleging that his appellate counsel was ineffective for failing to raise an issue as to the absence of Bullard at a sidebar conference during his trial and that the evidence at his trial was insufficient.
The State filed its opposition on January 15, 2003, and no further submission has been made by Bullard. The matter was marked fully submitted on January 15, 2003.
On June 4, 1996, prior to the commencement of the trial, the court conducted voir dire of prospective jurors. During voir dire, the court asked the Petitioner:
THE COURT: What I would like to suggest to defense
counsel and his client that he and his client keep in
mind what appears to be a rare incident for a juror
asking for some reason or another some additional
measure of privacy, if your client would be willing to
in effect waive his presence or not hear what is said
by the juror. What I would do is hear the juror at the
bench over there, sidebar with the lawyers on the
record and it would appear that would be something
that would not embarrass anyone. We could then go back
and tell the defendant such and such occurred, and if
there is any reason to excuse the juror we will read
back the statement of what the juror said to us.
Obviously the law allows you to consent to that. But
in any event, it's up to you gentlemen, you and your
(Whereupon defense counsel confers with Petitioner)
DEFENSE COUNSEL: Judge, I have spoken with Mr. Bullard
and for those rare incidents where it is clear that a
juror would be more comfortable at the sidebar he has
agreed to waive his right to be present for that
purpose. With the conditions as set forth by the court
that would be read back he has consented.
On June 11, 1996, during voir dire, in the presence of the defense attorney, the prosecutor, and the court, a prospective juror was questioned regarding prior arrests (T1.522). The discussion was as follows:
PROSECUTOR: Do you have any type of experience with
JUROR: Yes. They thought that I was like selling drugs
or something like that outside the laundromat.
PROSECUTOR: Were you arrested for that?
PROSECUTOR: They just let you go?
JUROR: They just thought I was suspicious, selling
drugs like that.
PROSECUTOR: They came over and spoke with you?
PROSECUTOR: Now, that wasn't a pleasant experience?
PROSECUTOR: Was there anything, sir, about that
experience that would make you feel you have a
predisposition toward police officers?
JUROR: No. They were just doing their job.
PROSECUTOR: When they come here you are not going to
be thinking about that?
JUROR: No, totally separate.
PROSECUTOR: You can assure me of that, sir?
Then, the attorneys, the court, and the juror returned to open court (T1. 527). The juror was not dismissed (T1.524). Later, the court excused the rest of the prospective jurors from the courtroom, and in Petitioner's presence (T1.417), further questioned the prospective juror:
THE COURT: [Juror], you said during the questioning
that you had been arrested, we did not want to
embarrass you by asking additional questions about
that in the presence of the other jurors. So we
thought that we would wait until they left to ask you
just kindly explain what that was about.
JUROR: Well, this was about twelve years ago, the
charge was possession of ...