BERMEJO v. Girdich

E.D. New York

BERMEJO v. Girdich

178 F. Supp. 2d 275, 2001 U.S. Dist. LEXIS 19091, 2001 WL 1464225

CourtDistrict Court, E.D. New York

DecidedNovember 8, 2001

DocketCV01-2578

StatusPublished

This text of 178 F. Supp. 2d 275 (BERMEJO v. Girdich) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

BERMEJO v. Girdich, 178 F. Supp. 2d 275, 2001 U.S. Dist. LEXIS 19091, 2001 WL 1464225 (E.D.N.Y. 2001).

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Opinion

MEMORANDUM, ORDER, JUDGMENT DENIAL OF CERTIFICATE OF APPEALABILITY

WEINSTEIN, Senior District Judge.

This petition for a writ of habeas corpus is based upon two contentions: (A) a Bat- *276 son and Counter Batson hearing by the state court resulted in prejudice to defendant and (B) a pretrial ruling that if defendant testified he could be asked about a prior weapons conviction prevented him from taking the stand in his own defense. The evidence of guilt was overwhelming with many eyewitnesses positively identifying petitioner as the executioner.

The record reveals a thoroughgoing and meticulous attempt by the court to obtain an unbiased jury. Defense counsel was treated with more than deference, allowing a jury to be empaneled that seemed dominated by minority female jurors — a result that was obviously defense counsel’s goal. No overreaching by the prosecutor was demonstrated.

There was no contemporaneous objection to the trial court’s ruling that evidence of a prior crime of possession of a weapon by defendant would be admissible if petitioner took the stand. The Appellate Division on direct appeal found this contention “unpreserved for appellate review, and, in any event, without merit.” People v. Bermejo, 276 A.D.2d 560, 714 N.Y.S.2d 689 (2d Dept.2000), lv. to app. den., 96 N.Y.2d 732, 722 N.Y.S.2d 798, 745 N.E.2d 1021 (2001). The claim is also unavailable on federal grounds because the defendant did not testify. See Luce v. United, States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Carroll v. Hoke, 695 F.Supp. 1435, 1439-40 (E.D.N.Y.1988) Aff'd, 880 F.2d 1318 (2d Cir.1989).

The petition is dismissed. A certifícate of appealability is denied because the clajjns are entirely without merit.

SO ORDERED.

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MEMORANDUM, ORDER, JUDGMENT DENIAL OF CERTIFICATE OF APPEALABILITY

WEINSTEIN, Senior District Judge.

This petition for a writ of habeas corpus is based upon two contentions: (A) a Bat- *276 son and Counter Batson hearing by the state court resulted in prejudice to defendant and (B) a pretrial ruling that if defendant testified he could be asked about a prior weapons conviction prevented him from taking the stand in his own defense. The evidence of guilt was overwhelming with many eyewitnesses positively identifying petitioner as the executioner.

The record reveals a thoroughgoing and meticulous attempt by the court to obtain an unbiased jury. Defense counsel was treated with more than deference, allowing a jury to be empaneled that seemed dominated by minority female jurors — a result that was obviously defense counsel’s goal. No overreaching by the prosecutor was demonstrated.

There was no contemporaneous objection to the trial court’s ruling that evidence of a prior crime of possession of a weapon by defendant would be admissible if petitioner took the stand. The Appellate Division on direct appeal found this contention “unpreserved for appellate review, and, in any event, without merit.” People v. Bermejo, 276 A.D.2d 560, 714 N.Y.S.2d 689 (2d Dept.2000), lv. to app. den., 96 N.Y.2d 732, 722 N.Y.S.2d 798, 745 N.E.2d 1021 (2001). The claim is also unavailable on federal grounds because the defendant did not testify. See Luce v. United, States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Carroll v. Hoke, 695 F.Supp. 1435, 1439-40 (E.D.N.Y.1988) Aff'd, 880 F.2d 1318 (2d Cir.1989).

The petition is dismissed. A certifícate of appealability is denied because the clajjns are entirely without merit.

SO ORDERED.

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178 F. Supp. 2d 275, 2001 U.S. Dist. LEXIS 19091, 2001 WL 1464225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bermejo-v-girdich-nyed-2001.

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