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Francolino v. Kuhlman

Citation: 33 ELR 20039
No. No. 01 Civ. 3882(AGS), 224 F. Supp. 2d 615/(S.D.N.Y., 09/03/2002)

The court denies a petition for habeas corpus relief submitted by an individual who was convicted for a variety of charges stemming from his involvement in a private waste disposal cartel. The individual argued that he was denied his due process rights by the prosecutor's alleged selection of the judge who presided over his case. The individual claimed that the prosecutor selected the judge because of her allegedly pro-prosecution bias. The practice of judicial assignment at the time of the individual's case permitted prosecutors to engage in judge-shopping. The court first holds that although prosecutorial judge-shopping gives the appearance of partiality, the appearance of partiality alone is not grounds for habeas corpus relief. Rather, a showing of actual prejudice is required. Numerous court decisions that have examined a judicial assignment scheme similar to the one in question here have held that a petitioner must show actual prejudice in order to warrant relief. The court next holds that here, the individual did not suffer actual prejudice. He was not stripped of his right to a bench trial, he was not prejudiced during arraignment, and he was not prejudiced by the judge's pretrial rulings. Nor was he prejudiced by the judge's sentencing. The individual also argued that a jury instruction given by the judge diluted the standard of proof beyond a reasonable doubt. The court holds, however, that the judge's instruction was not improper. The court, therefore, denies the individual's petition.

[Counsel not available.]