Opinion
00-CV-6529 (JBW), 03-MISC-0066 (JBW)
June 11, 2003
JUDGMENT ORDER
Petitioner's April 16, 2003 motion to stay the proceedings to allow him to exhaust a new claim in state court is denied. As discussed below, petitioner's "new claim" is not new and is, at any rate, without merit. It does not warrant a delay in the disposition of the instant petition.
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Testimony at trial established that on a day in January 1995, petitioner went to the apartment of his in-laws carrying two rolls of tape, two knives and a bottle of cognac. Petitioner, a native of Belorussia, claimed at trial that he went to their apartment intending to commit suicide. lie also asserted that he blacked out after his mother-in-law told him that his wife, who was separated from petitioner, would not return to him and that she had not come to America to live with him. When petitioner regained his senses, he claims, he found his in-law stabbed to death . . .
Petitioner's son and his wife had been living in the apartment of petitioner's in-laws since the separation. When his son returned to the apartment from school, petitioner bound him with tape in a bedroom and ordered him to stay on the bed until morning. When the boy told petitioner that he needed to do his homework, petitioner told him, "Don't worry about your homework, you're not going to be here soon." Petitioner then told his son that he had killed the boy's grandparents.
When petitioner's estranged wife returned to the apartment several hours later, petitioner punched her in the face and continued to assault her. As she was being beaten, she realized that towel-draped piles on the floor were her murdered parents. She testified that petitioner then sodomized and attempted to rape her. Petitioner told his wife to make him some coffee, moaning as she did so that he would now have to die, either by suicide or electric chair. When the phone rang, petitioner ordered his wife to answer it and to tell the caller — her brother — that everything was all right. His wife did so, but her tone aroused suspicions in her brother. After several probing questions, he asked whether she needed the police to arrive, and she answered that she did.
When the police arrived they knocked at the door to the apartment. Petitioner's wife opened the door and told the police in broken English that her parents had been killed and that petitioner's was threatening to kill her and her son with a knife. Petitioner, who spoke only Russian, did not understand. The officers decided to call for a supervisor and for Emergency Services. They knocked again and, petitioner being in the kitchen, the officers took the opportunity to remove petitioner's wife from the apartment. The officers entered the apartment, finding petitioner, all bloodied, holding a knife to his son's chest. Petitioner told the police to leave or else he would kill the boy. A stand-off ensued for some time. At one point petitioner yelled at the officers to just shoot him. Eventually petitioner threw down his knife and was subdued.
Petitioner waived a jury trial. He put on an insanity defense, eliciting testimony from a psychiatrist who opined that petitioner suffered from disassociative disorder at the time of the killings and that he lost awareness of his surroundings and voluntary control of his actions. Petitioner later abandoned this defense, against counsel's advice. See Trial Tr. at 301-10. The prosecution rebutted this testimony with an expert of its own, as well as a videotaped statement of petitioner speaking with police that arguably demonstrated that petitioner had been aware of his actions. He was convicted of two counts of second degree murder, first degree sodomy, first degree attempted rape, first degree sexual abuse, fourth degree criminal possession of a weapon, and first degree unlawful imprisonment. In total, petitioner was sentenced to 50 years to life in prison.
Through counsel petitioner appealed his conviction, claiming (1) that a videotape statement to police taken in violation of his right to counsel was improperly admitted as evidence rebutting his insanity claims; and (2) that his sentence was excessive. He also sought to file a supplemental pro se brief on appeal raising a number of issues — including a number of claims that evidence was falsified — but that motion was denied. Petitioner's appeal was largely unsuccessful. Two of the trial court's sentencing determinations — for unlawful imprisonment and attempted sexual abuse — were reduced, but the overall sentence remained the same. The Appellate Division also agreed with petitioner that the videotaped statement should not have been admitted, but found the error to be harmless. Leave to appeal to the New York Court of Appeals was denied.
Petitioner filed a pro se motion to vacate his judgment of conviction, claiming that his trial counsel was ineffective for failing to advise him about what was going on in the courtroom. The motion was denied. It is unclear whether petitioner sought to appeal that decision to the Appellate Division.
Petitioner also filed an application for a writ of error coram nobis before the Appellate Division, claiming that his appellate counsel was ineffective for failing to raise on appeal a number of claims. The application was denied.
Petitioner then filed another motion to vacate judgment, claiming inter alia that his trial counsel was ineffective, that evidence had been falsified, and that prosecution witnesses had committed perjury. The motion was denied and petitioner did not seek to appeal that decision to the Appellate Division.
In the present application for a writ of habeas corpus, petitioner first claims that his trial counsel was ineffective because counsel (1) failed to agree to and implement petitioner's trial strategy; (2) failed to do an adequate investigation; (3) failed to "test" prosecution witnesses; (4) failed to object to the falsification of evidence; (5) pursued an insanity defense over petitioner's objection; (6) "did nothing about" allegedly inaccurate interpretations from English into Russian during the proceedings; and (7) refused to ask petitioner the scripted questions petitioner had prepared prior to testifying in his own behalf Petitioner's second claim is that the prosecutor committed misconduct by (1) falsifying evidence; (2) stating falsely to the jury that petitioner is an anti-Semite; and (3) portraying petitioner as a sadist based on a purposeful misrepresentation made by petitioners's wife. His third claim is that a police witness lied when he testified that petitioner was bloody when arrested, because petitioner was in fact bloodied as a result of police officers kicking him in the face. His fourth claim is that he was denied a fair trial due to faulty translations of the proceedings. His fifth claim is that the trial court erroneously determined that petitioner had acquiesced in an insanity defense. His sixth and final claim repeats in substance his fourth claim, that he was denied due process of law and the ability to aid in his own defense as a result of inadequate translations of the proceedings.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit.
III. Exhaustion
Formerly, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
if a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "uses language such as "the defendant's remaining contentions are either unpreserved for appellate review or without merit," the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
Ineffective assistance of trial counsel may be cause for a procedural default, but this claim must be presented to a state court before it can be heard on habeas. In turn, a procedurally defaulted ineffective assistance of trial counsel claim may be excused by a showing ineffective assistance of appellate counsel, but such a claim must itself be presented to the state courts before it receives federal habeas review. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Claims of ineffective assistance of appellate counsel are themselves subject to procedural default. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). But see id. at 458 (Breyer, J., concurring in the judgment) (" Why should a prisoner, who may well be proceeding pro se, lose his basic claim because he runs afoul of state procedural rules governing the presentation to state courts of the `cause' for his not having followed state procedural rules for the presentation of his basic federal claim?").
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and 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. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "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." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at * 18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 2003).
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). Any claims for which a certificate of appealability is granted will be reviewed de novo by the Court of Appeals.
VII. Instant Claims
As an initial matter, respondent concedes that all of petitioner's claims have been exhausted and were decided in state court on the merits, except for petitioner's claim that translations during the proceedings were inadequate. See Aff. in Opposition to Pet'n for a Writ of Habeas Corpus, at 12-13. With respect to the faulty translations claim, petitioner first attempted to raise it in his pro se motion to supplement his appellate brief. The motion was denied and leave to appeal to the New York Court of Appeals was dismissed because an appeal does not lie from an Appellate Division denial of a motion to supplement. Petitioner also obliquely raised the claim as part of his coram nobis application alleging ineffective assistance of appellate counsel. That application was also denied. Contrary to respondent's contention, petitioner exhausted the claim in his motion to supplement his appellate brief, having presented it to the state court for determination, with no further right of appeal. That said, the claim was barred by an independent and adequate procedural rule. This court may thus address the claim as exhausted but procedurally barred. At any rate, as noted below, the claim is without merit.
Before turning to the merits of the petition, the court notes that respondent, instead of addressing petitioner's arguments in its affidavit in opposition to the petition, merely refers this court to four separate state court documents that addressed in one way or another various of petitioner's claims. Respondent summarily states,
For a full response to defendant's claims, see the Affirmations of Diane R. Eisner opposing defendant's 1996 motion to vacate his judgment of conviction, opposing his 1999 coram nobis application, opposing his June 2000 motion to vacate his judgment of conviction, and the letter of Diane R. Eisner to Judge Bellacosa opposing defendant's request for leave to appeal to the New York Court of Appeals from the decision of the Appellate Division on his direct appeal (Respondent's Exhibits B, F, G and H).Id. at 12-13. Because this matter has been pending for several years, this court will refrain from further delay and will not order respondent to gather its argument into one document in the form of an acceptable brief
Petitioner first claims that his trial counsel was ineffective because counsel (1) failed to agree to and implement petitioner's trial strategy; (2) failed to do an adequate investigation; (3) failed to "test" prosecution witnesses; (4) failed to object to the falsification of evidence; (5) pursued an insanity defense over petitioner's objection; (6) "did nothing about" allegedly inaccurate interpretations from English into Russian during the proceedings; and (7) refused to ask petitioner the scripted questions petitioner had prepared prior to testifying in his own behalf None of these grounds has any merit and each requires only brief discussion.
In her affirmation opposing petitioner's first motion to vacate judgment, the assistant district attorney recounts under oath a discussion with petitioner's trial counsel in which counsel stated, in essence, that he conferred repeatedly with petitioner throughout the proceedings, procured a psychiatrist to assist in an insanity defense, discussed with petitioner the strategic value of waiving a jury trial and of presenting an insanity defense, arranged for an investigator to track down witnesses identified by petitioner who might help his case, had numerous documents translated from English to Russian for petitioner, and assured himself that petitioner understood what was transpiring through the proceedings. Petitioner has not objected to the hearsay nature of the assistant district attorney's affirmation.
Even if this information is not properly before the court, petitioner has provided no evidence of his own, aside from his allegations, in support of his claims that trial counsel was ineffective. Petitioner has supplied this court with no affidavit from his trial counsel and he has not contended that he sought such an affidavit. At any rate, evidence in the trial transcript refutes a number of petitioner's allegations. Contrary to petitioner's claims (which are not credited for lack of veracity) there is no compelling evidence that anyone involved in this matter — from the police to the prosecution to the trial court to petitioner's own counsel — falsified evidence or falsified the trial record. Trial counsel was not ineffective for failing to protect his client from any alleged misconduct on this score.
Trial counsel's cross examination of state witnesses was vigorous and competent, see, e.g., Trial Tr. at 27, 50, 52, 124, 178-79, 189, 212, 223-24, 230; that counsel was authorized by petitioner to pursue an insanity defense, see id. at 302; and that there was no need for intervention based on translation problems because petitioner understood what was transpiring during the proceedings, see, e.g., id. at 98-99, 108, 237-38. Petitioner's distaste for some of the strategic decisions made by counsel cannot support a claim of ineffective assistance. Petitioner's claim that counsel pursued an insanity defense over petitioner's objection is belied by the record. Midway through the trial, petitioner acknowledged having acquiesced to an insanity defense but informed the court that he wanted to forgo the defense over counsel's objection. The court urged petitioner to reconsider his decision over lunch, after which petitioner by his further silence acquiesced to the presentation of the defense. Id. at 301-13. Counsel performed effectively with regard to this issue at all times.
Evidence of petitioner's guilt was overwhelming. Evidence in support of the insanity defense was, all told, weak, but worth making as a tactical matter. None of petitioner's allegations of ineffective assistance of counsel has any merit, and the state court's resolution of this issue has insufficient merit to warrant granting of the writ under the review standards of AEDPA.
Petitioner's second claim is that the prosecutor committed misconduct by (1) falsifying evidence; (2) stating falsely to the jury that petitioner is an anti-Semite; and (3) portraying petitioner as a sadist based on a purposeful misrepresentation made by petitioner's wife. Petitioner claims that the prosecution replaced one of the three knives that were taken from the crime scene with "a kitchen knife that was similar with the one actually . . . found at the crime scene." Petitioner does not explain why the prosecution would have engaged in such evidence tampering. This accusation is unsupported by any evidence. Petitioner suggests that some impropriety has been proven because (1) an officer who testified at trial stated that one of the knives was vouchered by someone besides him, see Trial Tr. at 59, and (2) that another officer testified that he had not seen that knife before. id. at 277. The officers' lack of recall does not establish either that the knife was not recovered from the scene or that it was replaced with another knife. Petitioner now claims to have "new evidence" — apparently the property invoice for the vouchered knife, obtained via a state Freedom of Information Law request — that supports his claim that evidence was tampered with. Petitioner does not state how this property invoice supports his claim that the prosecution tampered with the evidence. Instead, he seems merely to suggest that because a knife was vouchered but unrecognized by police officers who testified at trial, he has a fortiorari established that evidence was tampered with. The claim is patently frivolous.
Petitioner's claim that the prosecution committed misconduct by alleging during argument that he is anti-Semitic is likewise without merit. There was evidence in the record that petitioner had made insulting remarks about his wife's (and her parents') religion. See, e.g., Trial Tr. at 214. It was not a constitutional error, on the evidence in the record, to suggest that petitioner may have been partly motivated to commit the crime based on his alleged antipathy to his in-laws' religion. At any rate, such comments were harmless in light of the overwhelming evidence of petitioner's guilt.
Also frivolous is petitioner's claim that the prosecutor improperly characterized petitioner as a sadist based upon testimony from petitioner's wife that petitioner had poured a beer over her head in order to humiliate her. There was no prosecutorial misconduct.
Petitioner's third claim is that a police witness lied when he testified that petitioner was bloody when arrested, because petitioner was in fact bloodied as a result of police officers kicking him in the face. Petitioner offers no evidence in support of his claim. Even if the accusation were true, it is not even a remote possibility that the officer's "false" testimony could possibly have had an effect on the verdict. No habeas relief is merited on this claim.
Petitioner's fourth claim is that he was denied a fair trial due to faulty translations of the proceedings. Review of the trial transcript belies this contention. See, e.g., id. at 98-99, 108, 237-38. The claim too is without merit.
Petitioner's fifth claim is that the trial court erroneously determined that petitioner had acquiesced in an insanity defense. As noted above, the trial court urged petitioner to reconsider his mid-trial request to abandon an insanity defense and to instead simply state that he was "not guilty." Petitioner was told to ponder his decision over lunch. When the trial resumed, petitioner did not object to the presentation of evidence in support of an insanity defense. The trial court committed no error. At any rate, petitioner can demonstrate no way in which he was harmed by the presentation of an insanity defense, since the defense was not inconsistent with any of his averments at trial or with any of the other evidence he wished to present in his defense. There is no merit to this claim.
Petitioner's sixth and final claim repeats in substance his fourth claim, that he was denied due process of law and the ability to aid in his own defense as a result of inadequate translations of the proceedings. For the reasons discussed above, this claim is without merit.
In a "Supplemental Reply" to the respondent's affidavit in opposition to his petition, petitioner raises new claims, arguing (1) that his waiver of a jury trial was involuntary; (2) that at no time was he informed what "sodomy" is; and (3) that proof of his guilt was not proven beyond a reasonable doubt. His habeas petition is deemed amended to include these claims. They are without merit.
The trial court engaged in a lengthy discussion with petitioner, informing him of the rights he was waiving and ascertaining that his waiver of a jury trial was voluntary. See Tr. Huntley Hr'g at 49-56. Petitioner's claim that the charges against him were never explained to him by counsel are not credible. The record and evidence, viewed in the light most favorable to the prosecution, requires a finding that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). He has not met that burden.
VIII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, because petitioner has made no substantial showing of the denial of a constitutional fight warranting an appeal warranting an appeal.
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).