Appeal from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, denying the application of petitioner, a state prisoner, for a writ of habeas corpus. Reversed and remanded on the ground that appellate counsel's omission to pursue colorable claims on appeal in the state court deprived petitioner of the effective assistance of counsel under Anders v. United States, 386 U.S. 738 (1967).
Before Oakes and Meskill, Circuit Judges and Blumenfeld, District Judge.*fn*
This appeal involves the extent of an indigent criminal defendant's right to competent counsel on appeal from a New York State criminal conviction and the extent of his appellate counsel's duty to raise and argue particular issues at the defendant's request. The case arises out of the denial of a habeas petition by the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, in connection with appellant Barnes's conviction of robbery in the second degree and assault in the second degree in the New York Supreme Court, Kings County, where he received a sentence of two concurrent terms of seven and one-half to fifteen years and three and one-half to seven years, respectively. Because we find that the defendant had successfully exhausted state remedies and we think that appellate counsel owed a duty to his client to pursue colorable claims on appeal in the state court, we reverse the judgment below.
A. The State Court Proceedings.
1. Trial. David Barnes was charged with first and second degree robbery, second degree assault, and third degree larceny in connection with the robbery and stabbing of Richard Butts. The State's case relied primarily on the testimony of Butts who claimed that Barnes, whom he had known in the past as "Froggy," had been one of his four assailants. After testifying falsely about where he had been immediately preceding the robbery, the complainant Butts recollected that it was Barnes who had grabbed him from behind, though he conceded that Barnes was not the one who took his watch and that he did not know which of the four actually took his money. This identification, which was held to rest on the independent basis of Butts's previous familiarity with Barnes, was critical to the prosecution's case because the court found Butts's subsequent bedside identification of Barnes to have been "the worst possible way of having a showing made." On cross-examination defense counsel sought to impeach Butts's credibility by introducing a psychiatric medical report which suggested that Butts had a history of "blacking out." When counsel asked Butts whether he had ever undergone psychiatric treatment, however, the trial court sua sponte directed Butts not to answer. Trial counsel did not at that time provide the court with an offer of proof to establish the relevancy of the "blacking out" to Butts's ability to identify Barnes.
Barnes testified on his own behalf and presented the alibi that he was home with his father during the time Butts claimed the robbery occurred. Counsel did not, however, call Barnes's father as a witness, nor did he allude to Barnes's alibi testimony in summation. At the close of the evidence, defense counsel did request the court to charge the jury on accessorial liability-that a defendant cannot be held criminally liable for the acts of another unless he knew of the acts and intended the result-but the court declined to do so.
2. The Appeal to the Appellate Division. Barnes's application for leave to appeal in forma pauperis was granted by the Appellate Division, Second Department, on March 4, 1977, and new counsel, Michael Melinger, Esq., was appointed to prosecute Barnes's appeal. Barnes and his appellate counsel communicated in writing and on November 7, 1977, Barnes wrote to Mr. Melinger advising him of the arguments that he wanted made on appeal, including specifically that identification testimony should have been suppressed because it was a product of an unconstitutional pretrial show-up, that the Assistant District Attorney's cross-examination of Barnes exceeded permissible legal limits, that the trial court improperly excluded the psychiatric evidence, and that Barnes had been denied effective assistance of trial counsel. Barnes accompanied his letter with a supplementary brief.
In a letter dated November 9, Mr. Melinger replied that he would not argue that trial counsel ineffectively represented Barnes, explaining that "(n)ew facts, or new factual arguments, that existed and were readily determinable at trial, are not of assistance to us at this time," apparently under the mistaken belief that the ineffectiveness claim was not cognizable on appeal.*fn1 He also declined to argue that the show-up was unconstitutional, but indicated that he would argue that the facts adduced at the Wade hearing relative to Butts's prior acquaintance did not substantiate the court's determination of an independent identification. Finally, counsel identified six other claims worth raising on appeal including that the court improperly barred introduction of medical or psychiatric testimony concerning the complaining witness, that the prosecution's summation was improper, and that the court erred in examining Barnes and in denying the defense's requested charge. Counsel also agreed to submit Barnes's own supplementary pro se brief, while stating that he did not necessarily agree with the points made. He then sent Barnes a draft brief that raised only three of the seven points endorsed by his letter of November 9, 1977, and Barnes filed a subsequent second pro se brief. Mr. Melinger did not send Barnes a copy of the State's brief replying to his pro se briefs until after the oral argument. At oral argument Mr. Melinger argued the questions raised in his own brief, but asserted none of the arguments raised in the pro se briefs. By summary order without opinion the Appellate Division affirmed the conviction on both counts and leave to appeal to the Court of Appeals was denied on July 20, 1978.
3. Subsequent State and Federal Proceedings. Barnes then brought in the United States District Court for the Eastern District of New York a pro se petition for a writ of habeas corpus, which raised the four substantive issues originally presented in Barnes's first pro se brief to the Appellate Division. Barnes challenged the exclusion of the psychiatric report, the show-up procedure, and the allegedly improper examinations of Barnes by the prosecutor*fn2 and the trial court.*fn3 He also claimed that trial counsel was ineffective, particularly in his failure to call Barnes's father as a witness to substantiate the alibi. The district court denied the writ after judging Barnes's ineffectiveness claim under the "farce and mockery" standard enunciated by the Court of Appeals for the Second Circuit in United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S. Ct. 478, 94 L. Ed. 586 (1950).*fn4
Thereafter Barnes petitioned the New York State Court of Appeals for reconsideration of its denial of leave to appeal and also filed a motion under N.Y.Crim.Proc. Law § 440.20 challenging his sentence. Both applications were denied; leave to appeal those rulings was similarly denied. He then filed in the Eastern District the petition for a writ of habeas corpus underlying this appeal, in which he makes a constitutional challenge principally on the basis of the ineffective assistance of his state appellate counsel. The district court found that Barnes had exhausted his state remedies by alleging ineffective assistance of appellate counsel in his petition for reconsideration of the New York State Court of Appeals' denial of leave to appeal, but dismissed the petition for the writ in an opinion below. Although relying upon United States v. Wight as reenforced by Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S. Ct. 103, 54 L. Ed. 2d 85 (1977), the court found appellate counsel's performance adequate even under the more lenient "reasonable competence" standard adopted by other circuits and proposed by some of the judges in this circuit, see note 4 supra. As to Mr. Melinger's failure to argue all of the points petitioner wanted raised, Judge Nickerson stated that "it is not required that an attorney argue every conceivable issue on appeal, especially when some may be without merit. Indeed, it is his professional duty to choose among potential issues, according to his judgment as to their merit and his tactical approach." This appeal ensued.
A. Exhaustion of State-Court Remedies.
The State, relying upon Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971), argues that Barnes's claim that he was denied effective assistance of appellate counsel cannot serve as a basis for federal habeas relief because he was required by 28 U.S.C. § 2254(b), (c) (1976) to present this issue to the Appellate Division of the Supreme Court of New York. But on March 21, 1980 Barnes did request that the New York Court of Appeals reconsider its denial of leave to appeal the Appellate Division's affirmance of his conviction. At that time Barnes urged the Court of Appeals to consider whether he had been denied the effective assistance of counsel by appointed counsel's failure to raise and argue colorable issues at Barnes's request. A claim based on the ineffective assistance of counsel in prosecuting an appeal to the New York Appellate Division may be properly raised for the first time on direct appeal to the Court of Appeals. People v. Gonzalez, 47 N.Y.2d 606, 393 N.E.2d 987, 419 N.Y.S.2d 913 (1979) (remanding to the Appellate Division for de novo consideration of the appeal following High v. Rhay, 519 F.2d 109, 113 (9th Cir. 1975)).
The State points to section 670.5 of the Appellate Division Court Rules, which permits reargument of a cause or amendment of a decision for good cause shown at any time. See also N.Y.Crim.Proc. Law § 470.50. But Picard v. Connor, 404 U.S. at 275-77, 92 S. Ct. at 512-13, requires only that a claim raised in a federal petition have been previously presented in proper form to a state court. See also United States ex rel. Ross v. LaVallee, 448 F.2d 552, 553-54 (2d Cir. 1971) (citing Brown v. Allen, 344 U.S. 443, 448 n.3, 73 S. Ct. 397, 403 n.3, 97 L. Ed. 469 (1953)); United States ex rel. Leeson v. Damon, 496 F.2d 718, 721 (2d Cir.), cert. denied, 419 U.S. 954, 95 S. Ct. 215, 42 L. Ed. 2d 172 (1974). The claim must have been properly presented to the state courts "at least once, on direct or collateral review." Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977). See also United States ex rel. Irons v. Montanye, 520 F.2d 646, 648-49 (2d Cir. 1975). That collateral relief may be available under N.Y.Crim.Proc. Law § 440.20 is therefore immaterial, see United States ex rel. Cardaio v. Casscles, 446 F.2d 632, 634 (2d Cir. 1971), and indeed the availability of any such collateral relief for Barnes's claim is in doubt, see People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 409 N.E.2d 990, 431 N.Y.S.2d 518 (1980) (Meyer, J., dissenting). The cases upon which the State relies, United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2d Cir. 1974); United States ex rel. ...