and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.'
United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 680, 690-91 (emphasis added)).
In this case, it is readily apparent that all three aspects of the petitioner's claim of ineffective assistance of appellate counsel are without merit. First, the petitioner argues that his attorney was incompetent insofar as she raised on appeal an issue that had not been preserved for review by trial counsel. The petitioner argues not that his attorney erred in failing "to raise a specific issue," but that "counsel lacked the basic skills to properly present the issue on direct appeal." Memorandum of Petitioner at 15. However, the appellate brief submitted by the petitioner's attorney on appeal demonstrates manifest awareness that the issue raised had not been preserved by trial counsel; indeed, appellate counsel, with reference to appropriate New York case law, requested that the appellate court "use its discretionary jurisdiction to reverse in the interest of justice" notwithstanding that the issue had not been preserved. As such, the petitioner's characterization of his appellate attorney as lacking the "basic skills to properly present the issue on direct appeal" is entirely misguided. This court cannot conclude that the decision by appellate counsel to raise an unpreserved issue on appeal and to address this issue to the "interest-of-justice" jurisdiction of the appellate court constituted "representation . . . below an objective standard of reasonableness." Further, even if the decision of appellate counsel to raise an unpreserved issue were an unprofessional error, the petitioner has not even endeavored to establish that the result of his appeal "would have been different" had appellate counsel not raised that claim.
The petitioner next argues that his appellate counsel committed error in that she failed to raise a claim of ineffective assistance of trial counsel (a claim that the petitioner himself asked her to raise). The petitioner argues that his attorney on appeal should have argued that his trial counsel committed an unprofessional error when he "did not lodge a protest to the [jury] charge" on the defense of justification. Memorandum of Petitioner at 16. But even on the assumption that the failure of appellate counsel to raise a claim of ineffective assistance of trial counsel was an error, the petitioner would be unable to establish that the result of his appeal would have been different if his appellate attorney had raised the matter. That is, in order to show that the result of his appeal would have been affected by such a claim, the petitioner would have to demonstrate that the appellate court would have found that the performance of trial counsel failed the two-part Strickland test. But in order to establish that, the petitioner would have to establish that the result of his trial would have been different if his trial counsel had objected to the justification charge. The opinion of the appellate court, however, upheld the adequacy of the justification charge; accordingly, any claim on appeal that the petitioner's trial counsel did not provide the effective assistance of counsel by failing to object to the justification charge would have fallen short of the second part of the Strickland test. In other words, the opinion of the Appellate Division that the jury charge on justification was adequate establishes that any ineffective assistance of trial counsel claim on appeal would have failed; it follows necessarily that any claim of ineffective assistance of appellate counsel for failure to raise such a claim of ineffective assistance of trial counsel must also fail. For this reason, the petitioner's chain of ineffective assistance claims must be rejected.
Finally, the petitioner argues that his appellate counsel provided ineffective assistance of counsel in that she did not raise a claim that his guilt had not been proven beyond a reasonable doubt. On this part of the petitioner's argument, the court simply notes that the decision of appellate counsel to choose among plausible options of appellate issues is preeminently a strategic choice and is "virtually unchallengeable." The petitioner has not even undertaken to demonstrate that the decision of his attorney not to raise this issue constituted an "unprofessional error" or that such error prejudiced his appeal.
For the reasons set forth above, the application of the petitioner for a writ of habeas corpus is denied.
Dated: Brooklyn, New York
July 7, 1992
I. Leo Glasser, U.S. D. J.
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