of the proceeding would have been different." Id. at 694. See Mayo v. Henderson, 13 F.3d at 533. A determination on the merits of a claim of ineffective assistance of appellate counsel thus can depend, in turn, on a determination on the merits of claims that a petitioner alleges should have been presented to the appellate court by counsel. To establish ineffective assistance of appellate counsel for failing to present a claim of ineffective assistance of trial counsel, a petitioner must demonstrate a reasonable probability that the appellate court would have found that the performance of trial counsel itself failed the two-part Strickland test by establishing that the trial attorney unreasonably erred and that the result of the trial probably would have been different if trial counsel had provided effective assistance. See, e.g., Richburg v. Hood, 794 F. Supp. 75, 78 (E.D.N.Y. 1992); Johnson v. Hoke, No. 91 Civ. 2714 (MGC), 1992 U.S. Dist. LEXIS 6745 at *9-11, 1992 WL 110750 at *3-4 (S.D.N.Y. May 11, 1992).
Under New York law claims of ineffective assistance of trial counsel ordinarily must be addressed to the trial court in a § 440.10 motion rather than to the Appellate Division on direct appeal because they ordinarily relate to matters of which only the trial court is aware, require knowledge and/or review of the entire proceedings at the trial level and/or of which no record was ever made at the trial level and, thus, would require the making of an additional record before the Appellate Division would be able to review what occurred. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Mercado v. Senkowski, 736 F. Supp. 28, 29 (E.D.N.Y. 1989); Walker v. Dalsheim, 669 F. Supp. 68, 70-72 (S.D.N.Y. 1987); United States ex rel. LaSalle v. Smith, 632 F. Supp. 602, 603, 605-06 (E.D.N.Y. 1986); People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692 (1984); People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978). When particular claimed instances of trial counsel error are matters as to which the record is already clear, however, the claim can be reviewed by the appellate court and should be raised on direct appeal. See, e.g., People ex rel. Barrett v. Scully, 203 A.D.2d 311, 612 N.Y.S.2d 895 (2d Dep't 1994); People v. Pachay, 185 A.D.2d 287, 587 N.Y.S.2d 212 (2d Dep't 1992), appeal denied, 82 N.Y.2d 757, 603 N.Y.S.2d 999 (1993); People v. Gonzalez, 158 A.D.2d 615, 551 N.Y.S.2d 586 (2d Dep't), appeal denied, 76 N.Y.2d 735, 558 N.Y.S.2d 897 (1990); see generally Walker v. Dalsheim, 669 F. Supp. at 71-72.
Justice Rubin's decision shows that this case falls into the latter category. She, as the trial judge, found that the particular instances of attorney error being claimed were reviewable on the trial record and could have been raised on direct appeal. (Indeed, as discussed above, petitioner himself, both in his coram nobis application and in his motion to Justice Rubin, contended that appellate counsel rendered ineffective assistance because of that counsel's failure to raise a claim on direct appeal of the alleged ineffectiveness of trial counsel based on instances which were "founded on the face of the trial record so that appellate counsel...should have briefed and presented [them]...on direct appeal" (coram nobis application, p. 3; see also § 440.10 motion, p. 5). One could wonder, however, why petitioner then himself did not raise these issues he claims to have urged appellate counsel to raise in his own supplemental pro se brief.)
The issue of whether appellate counsel was ineffective, as Justice Rubin correctly ruled pursuant to New York law, is an issue the trial court cannot decide and must be presented to the Appellate Division. The only procedure in New York for doing so is an application for a writ of error coram nobis to the Appellate Division department that affirmed the conviction. People v. Bachert, 69 N.Y.2d at 600, 516 N.Y.S.2d at 627-28; see also Caballero v. Keane, 42 F.3d at 741; Mathis v. Hood, 851 F.2d 612, 614 (2d Cir. 1988). When the Appellate Division denied leave to appeal Justice Rubin's ruling on petitioner's § 440.10 trial counsel claims, the issue of appellate counsel's assistance became ripe for presentation and decision on the merits in the Appellate Division, but petitioner has not since presented it to that court.
Since there has not yet been any determination by the state courts on the merits of the claim of ineffective assistance of appellate counsel and petitioner has not yet "fairly presented" those courts with an opportunity to make such a determination, he must again apply to the Appellate Division for a writ of error coram nobis in order to exhaust state remedies and enable us to review such a claim should he not be afforded relief by the Appellate Division.
Given the presence in the petition of both exhausted and unexhausted claims, it must be dismissed without prejudice pursuant to Rose v. Lundy and its progeny. Petitioner has the option of (a) exhausting his state remedies with respect to the unexhausted claim and then, should he not have obtained relief from the state courts, refiling his petition here, or (b) refiling his current petition omitting the unexhausted claim. He is hereby cautioned, however, that, in the event he chooses the second course, any subsequent petition he may seek to file thereafter asserting that claim may be dismissed as an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 489-496, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); Rose v. Lundy, 455 U.S. at 520-21.
Accordingly, the petition should be dismissed at this time without prejudice to refiling after petitioner has either exhausted his unexhausted claim or submitted a new petition dropping it.
Copies of this Report and Recommendation were mailed this date to:
Mr. Humberto Garcia