Appeal from a judgment of the United States District Court for the Southern District of New York (Conner, J.) denying appellant's petition for a writ of habeas corpus. The district court determined that appellant was not deprived of his sixth amendment right to the effective assistance of appellate counsel. Reversed.
Before: CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge.*fn*
Alexander Jenkins appeals from a judgment of the United States District Court for the Southern District of New York (Conner, J.) denying his petition for a writ of habeas corpus.
On December 3, 1979, Jenkins was sentenced to an indeterminate term of imprisonment of six and one-half to thirteen years, following his conviction upon a jury verdict for robbery in the second degree in the Supreme Court, Bronx County. The Appellate Division affirmed the conviction in a memorandum opinion, People v. Jenkins, 91 A.D.2d 557, 457 N.Y.S.2d 36 (1st Dep't 1982) (mem.), and the New York Court of Appeals denied leave to appeal, People v. Jenkins, 58 N.Y.2d 975, 460 N.Y.S.2d 1034, 447 N.E.2d 94 (1983).
Jenkins thereafter filed the instant petition for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. The writ was denied and the petition was dismissed by Judge Conner in an Opinion and Order, which included a certificate of probable cause, issued on October 24, 1986. Because we conclude that Jenkins was denied the effective assistance of counsel in connection with the prosecution of his appeal to the Appellate Division, we reverse and grant the writ conditionally.
The indictment against Jenkins and Ronald Johnson, his co-defendant, charged various crimes arising from the armed robbery of a Food City Supermarket in the Bronx and a subsequent exchange of gunfire with pursuing police officers. Specifically, each of the alleged participants was accused of attempted murder in the first degree, robbery in the first degree, and criminal possession of a weapon in the second degree. Both were convicted only of robbery in the second degree, and the sentences they received were identical -- six and one-half to thirteen years.
Represented by assigned counsel on his appeal to the Appellate Division, Ronald Johnson asserted that there were three errors in his trial: (1) denial of a challenge for cause of a juror whose son was a police officer; (2) an erroneous jury instruction requiring him to bear the burden of proof as to his alibi defense; and (3) refusal of an evidentiary offer of two photographs of a person who purportedly had confessed to the crimes subject of the indictment. In directing a new trial for Johnson, the Appellate Division concluded that "while perhaps no one of the afore-mentioned possible errors would warrant a reversal, the cumulative effect requires a new trial." People v. Johnson, 89 A.D.2d 506, 506, 452 N.Y.S.2d 53, 54 (1st Dep't 1982). Concurring in the opinion, the Presiding Justice of the Appellate Division found it sufficient ground for the reversal "that the charge on the alibi defense improperly shifted the burden of proof to the defendant." Id.
The attorney originally assigned to represent Jenkins on appeal was relieved as counsel because of a conflict of interest arising from his representation of Johnson. The Court appointed another attorney to represent Jenkins, and that attorney moved to be relieved as appellate counsel approximately six months after his assignment to the case. The motion was denied, and the attorney thereafter filed what was described by the District Court as "a clearly inadequate five-page brief." App. at 8. The brief contained but one Point, wherein it was argued that the evidence did not establish guilt beyond a reasonable doubt. The Point consisted of three paragraphs attacking the testimony identifying Johnson as a perpetrator.
After the brief was filed, Jenkins lodged a complaint against his attorney with a bar association grievance committee, whereupon the attorney moved to be relieved from the assignment representation. The application was granted, but the Appellate Division failed to appoint substitute counsel to pursue the appeal. Jenkins then filed a 51-page supplemental pro se brief, in which he advanced the same three arguments that had proved successful for his co-defendant plus two others: employment of suggestive identification procedures and deprivation of effective assistance of appellate counsel.
In affirming Jenkins' conviction, the Appellate Division wrote the following:
In the instant case, the burden-shifting alibi charge, the most serious of the trial flaws and the sole ground upon which one member of this court thought reversal of the codefendant's conviction was warranted, did not apply to appellant herein, and could not have affected his conviction. The cumulative effect of possible errors which required a new trial in People v. Johnson, supra. is thus absent in the present case. We have examined the remaining contentions raised by appellant and find them to be without merit.
Jenkins, 91 A.D.2d at 557, 457 N.Y.S.2d at 36-37. The motion for leave to appeal to the Court of Appeals was denied without opinion. Jenkins, 58 N.Y.2d ...