Does the trial court have any constitutional error or error in failing to instruct the jury on third-party culpability?

According to petitioner, his trial was rendered fundamentally unfair when the trial court failed to notice and then remove a juror who had fallen asleep during trial. This claim, however, is impossible to evaluate because, as petitioner concedes, his counsel intentionally decided not to raise the issue with the judge.³ Thus, no record was ever made regarding the issue. Absent a record, there is no basis upon which to conclude that the trial court committed constitutional error. See e.g. United States v. Springfield, 829 F.2d 860 (1987). Though, as respondent notes, this claim was not exhausted in state court, the claim should nonetheless be denied because it is clearly meritless. See 28 U.S.C. 2254(b)(2).

Petitioner asserts that the trial court erred by failing to sua sponte instruct the jury on third-party culpability. The court finds that there could have been no error because third-party culpability was not an issue in the case. Petitioner's defense at trial was that he was not guilty of criminal activity because he lacked criminal intent. Specifically, he argued that he was acting legally as a confidential informant in a sting set-up operation. Thus, the jury could have believed either that petitioner was acting legally as an informant, or that he was not an informant and was in fact acting illegally. Petitioner's defense in no way pointed to an absent third-party. Because there was no evidence adduced at trial which would have suggested a plausible third-party culpability defense, petitioner was not deprived his right to present the defense of his choice when the trial court failed to sua sponte instruct on such a defense. See Matthews v. United States, 485 U.S. 58, 63 (1988) (holding that a defendant is entitled to an instruction on an entrapment defense where there was sufficient evidence from which a reasonable jury could find entrapment). Though, as respondent notes, this claim was not exhausted in state court, the claim

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should nonetheless be denied because it is clearly meritless. See 28 U.S.C. 2254(b)(2).