Nevertheless, on October 21, 1987, the United States District Court,
Eastern District dismissed, without prejudice, petitioner's application
for a writ of habeas corpus. (Constantino, J.) The court held that
petitioner had failed to exhaust his state remedies because he had not
challenged his appellate counsel's effectiveness by moving for a writ of
error coram nobis proceeding as required by People v. Bachert,
69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987).
On December 10, 1987, petitioner moved in state court for a writ of
error coram nobis on the ground that his appellate attorney's conduct
constituted ineffective assistance of counsel and denied him due process
of law. On October 27, 1988, the Appellate Division, Second Department,
denied petitioner's petition for a writ of error coram nobis. The court
held that petitioner's appellate counsel had satisfied clearly the
constitutional standard of effective assistance of appellate counsel set
forth in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987
By pro se application dated March 30, 1989, petitioner brings this
petition pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus in
the United States District Court, Eastern District of New York.
Petitioner alleges identical claims to those he asserted in his petition
that was dismissed without prejudice on October 21, 1987. Specifically,
petitioner claims: 1) that he received ineffective assistance of appellate
counsel because counsel filed a brief deficient in setting forth the
facts, identifying the issues and arguing the law; 2) that appellate
counsel's assistance was also ineffective because counsel failed to raise
any federal constitutional arguments, thereby barring petitioner from
obtaining any relief on these grounds by federal writ of habeas corpus;
and 3) that the evidence at trial was insufficient to support his
conviction. Counsel was appointed to represent petitioner on his habeas
corpus petition on June 16, 1989.
Statement of Facts
A. Underlying Crime
On the night of April 19, 1980, Michael Grey, Kenneth Moss, Lloyd Grey
("Lloyd"), Randolph Gatson, Kevin Harris and Allen Taylor, along with
approximately two hundred others attended a party at the Shulman-Cohen
Jewish War Veteran's Post (the "Post") in celebration of Harris'
birthday. Working at the Post in the coat room that night were Morris
Panzer, the caretaker of the Post, and his grandson. Panzer and his
grandson were charging fifty cents per coat.
At approximately 3:00 a.m., the party ended. After the party ended,
Grey, Moss, Lloyd, Gatson, Harris and Taylor each helped at different
times to pack up various pieces of stereo equipment and carry them to a
station wagon for eventual transport. The station wagon was positioned in
front of the Post and parked so that the opened hatch of the wagon faced
the front door of the Post. On one of the last loading trips to the
station wagon, both Moss and Lloyd carried a large speaker out of the
Post. The whole group lifted it up and attempted to secure it to the
Gatson testified that while loading the speaker onto the car, he
observed in the car's open hatch "a polished piece of wood sticking out
of a paper plastic bag." (Tr. 152) About the time when Moss was carrying
the speaker to the car, Moss told Lloyd that "he needed money" and
"wanted to stick somebody up." (Tr.92) At which point, Lloyd responded
that "it was not worth it." After this conversation, Lloyd and Taylor
returned to the Post to remove more equipment. Gatson and Harris remained
outside the Post. Grey was not present during this conversation.
It was during this time, that Harris overheard heard Moss say to Grey
"[s]hould we do it?" (Tr.260) Grey did not respond. Both Moss and Grey
were standing outside near the car when this conversation took place.
Just after the speaker was placed on the roof, Grey asked Gatson, who
was sitting in the car, if Panzer, the caretaker, had any contract with
their names and addresses. (Tr.146, 206, 261) After which Grey walked to
the back of the station wagon.
(Tr.148) Gatson then saw Moss walk to door of the Post and ask Grey, who
was standing at the back of the station wagon, "[d]o you have it."
(Tr.148, 150, 198) Harris then heard the sound of rumpled paper and saw
Grey carrying a plastic bag with the barrel of a gun sticking out.
(Tr.263)*fn1 Grey returned from the door of the Post with plastic balled
After both Taylor and Lloyd got into the car, they heard two
explosions. At the time of the explosion, Gatson, Taylor, Harris, and
Lloyd Were seated in the car and Grey stood at the back of the car near
the hatch. Moss then proceeded to leave the Post. Harris testified that
when Moss left the Post he walked to the back of the station wagon where
Grey was standing. (Tr.271)*fn2
The next morning, the bodies of Panzer and his grandson were found in
the Post's bathroom. Both were pronounced dead as a result of gunshot
B. Appellate Representation
Grey was represented by the same retained counsel both at the trial and
appellate level. This petition alleging ineffective assistance of counsel
stems from Grey's dissatisfaction with the way counsel proceeded on
appeal.*fn3 Grey states that after receiving a copy of his appellate
brief, he wrote appellate counsel a letter dated April 24, 1984,
commenting on how he believed the brief to be deficient. Letter, at 1-3.
Grey al1eges that counsel never responded to him and that counsel
proceeded to sutmit the unsatisfactory brief to the Appellate Division and
to apply for leave to appeal to the New York State Court of Appeals
without first consulting with him. Grey asserts that he found out that he
lost his appeal and that he was denied leave to appeal when counsel
eventually spoke with his family. At that time, Grey's right to submit a
pro se brief had expired.
Grey's appellate counsel, in an affidavit, dated May 7, 1991, responded
to Grey's allegations. In his affidavit, counsel states that he no longer
has any of the files concerning Grey's case. Anthony v. Loinbardino's
Affidavit, dated May 7, 1991, p. 1. Nevertheless, certain crucial facts
can be ascertained regarding appellate counsel's communication with
petitioner from an analysis of the District Attorney's records, Grey's
letter to counsel of April 23, 1984 and counsel's normal office
Appellate counsel's affidavit indicates that his brief was served on
the Kings County District Attorney's Office on September 22, 1983.
Affidavit, at 2. On information and belief, Mr. Lombardino states in his
affidavit that based on his normal practice, he files his brief with the
Appellate Division about the same day that he serves the District Attorney
and that he sends a completed brief to his client on the same day it is
filed with the court. Id. Thus, based on these practices Grey should have
received his copy of the brief sometime in late September or early
Further, Grey's letter to counsel establishes that Grey was aware that
Mr. Loinbardino had filed his brief with the District Attorney.
Specifically, Grey states in his letter that "I would like you to submit a
supplemental brief before the district attorney replys [to] the one you
have already submitted." Letter, at 3. Accordingly, Grey appears to have
been in receipt of his brief for a maximum of approximately six
or seven months before objecting to its contents.*fn5
In conclusion, Mr. Lombardino states that he has no recollection of
receiving Grey's letter. Counsel notes that
[w]hen I send clients briefs that have already been
filed, my usual practice is to tell them to let me
know if they have other issues they wish to raise and
that we will then discuss the possibility of
addressing those issues in a supplemental brief or in
a pro se brief. Given Mr. Grey's instructions to me to
let him know whether I would file a supplemental
brief, and his indication of his willingness to file a
pro se supplemental brief if I chose not to raise the
additional issues, I assume that I must have followed
my usual practice, although I cannot be absolutely
certain. That is, it would seem that I sent Mr. Grey
the completed brief, told him to contact me if he
wanted to raise any additional issues, and told him
that we would discuss how best to raise any further
issues he wished to raise.
Affidavit, at 4. Mr. Lombardino concludes stating that he "can only
surmise at this point that I either did not receive Mr. Grey's letter or
if I did receive it, I answered it and my response did not reach Mr.
Grey. Alternatively, it is also possible that I inadvertently failed to
respond to Mr. Grey's letter." Affidavit, at 4.
Grey contends that he was deprived of effective assistance of appellate
counsel. Petitioner asserts that after he analyzed the appellate brief
defense counsel prepared, counsel then ignored a letter apprising him of
certain deficiencies in the brief. Specifically, Grey alleges that
defense counsel ignored his request to include certain issues in his
direct appeal, included issues which were not likely to succeed and
failed to properly brief other issues.*fn6
I. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
An appeal as of right does not accord with due process unless the
petitioner has the effective assistance of counsel. Evitts v. Lucey,
469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). A petitioner
challenging his conviction based on a claim of inadequate representation
bears the burden of showing that his attorney's performance "fell below
an objective standard of reasonableness," and that but for this error,
there is a "reasonable probability" the outcome would have been
different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct.
2052, 2064, 2068, 80 L.Ed.2d 674 (1984). The court defined a reasonable
probability as "a probability sufficient to undermine confidence in the
outcome of the proceeding." Id. at 694, 104 S.Ct. at 2068. The Strickland
v. Washington analysis, which is usually applied to ineffective trial
representation, is also applicable to appellate representation.*fn7
Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir. 1990); Pendleton v.
Scully, 664 F. Supp. 100, 104 (S.D.N.Y. 1987).
A claim of ineffective assistance of counsel requires a particularized
showing of an identifiable lapse in performance of the attorney which
when viewed under a "highly deferential" standard nevertheless falls
"outside the wide range of professionally competent assistance."
Strickland v. Washington, 466 U.S. at 669, 690, 104 S.Ct. at 2055, 2066.
This "requires showing that counsel was not functioning as the `counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 685, 104 S.Ct.
Superimposed on the two-part Strickland test is the Supreme Court's
ruling in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983). In Jones, the Supreme Court set out a framework for determining
whether there has been ineffective assistance by appellate counsel. The
court established in Jones
that defense counsel on an appeal does not have a constitutional
duty to raise every nonfrivilous issue requested by the defendant.
While the Supreme Court in Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.2d 493 reh'g denied,
388 U.S. 924, 2094, 18 L.Ed.2d 1377 (1967), recognized that the pole of
the advocate requires that he or she support the client's appeal to the
best of his ability, the Jones Court ruled that it is a matter of
professional judgment whether to present those points advanced by the
defendant. See Jones, 463 U.S. at 754, 103 S.Ct. at 3314.
Emphasizing the importance of having the appellate advocate-select what
in the exercise of best professional judgment are the most promising
issues for review, the Supreme Court ruled that appointed, counsel has no
obligation "to raise every colorable claim suggested by a client."
Jones, 463 U.S. at 754, 103 S.Ct. at 3314. The court concluded that
judges should not "second guess reasonable professional judgments." Id.
Counsel's decision to raise some issues but not others is a strategy
decision which does not automatically warrant a finding defendant was
inadequately or ineffectively represented. See Jones, 463 U.S. at 753,
103 S.Ct. at 3314.
Although Anders is not directly applicable herein, it is instructive
that petitioner did not have the benefit of voicing his own theories as
would have been possible under the procedures formulated in Anders. In
Anders, the Supreme Court formulated a procedure whereby an attorney
could withdraw from the case where no meritorious appellate issues
exist. This procedure requires that once an appellate attorney after a
conscientious examination of the record finds that the appeal is wholly
frivolous, counsel should advise the Court of such and request permission
to withdraw. Such a request should be accompanied by a brief reciting the
underlying facts and highlighting anything in the record that might
arguably support the appeal. Petitioner should be furnished with a copy
of the brief and given an opportunity to raise any points he chooses. The
Court would then examine all of the proceedings to determine whether the
appeal is wholly frivolous. If such a finding is made, the Court would
grant counsel's request to withdraw and affirm the judgment.