BERMEJO v. Girdich , 178 F. Supp. 2d 275 ( 2001 )

178 F. Supp. 2d 275 (2001)

Ignacio BERMEJO, Petitioner,
v.
Roy GIRDICH, Respondent.

No. CV01-2578.

United States District Court, E.D. New York.

November 8, 2001.

Ignacio Bermejo, Franklin Correctional Facility, Malone, NY, pro se.

Victor Barall, District Attorney of Kings County, Brooklyn, NY, for respondent.

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 Batson 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 certificate of appealability is denied because the claims are entirely without merit.

SO ORDERED.