and commented throughout on each witness." (Appellant's Br. at 11, 30-31, Attach. to Pet.)
The other examples given by petitioner also do not demonstrate deficient performance of counsel. While petitioner complains that his trial counsel did not achieve the desired "impact" when cross-examining two witnesses, Randy Smalls and Police Officer Tennant, the record demonstrates that counsel vigorously attacked their credibility. (Tr. at 141-71, 171-87, 281-90.) The claims that counsel did not properly emphasize one witness's statement and that counsel made a spurious legal argument do not demonstrate inadequate performance. The claims that trial counsel failed to object to inflammatory remarks and failed to preserve many appealable issues are not expanded upon by petitioner and are not supported by a review of the record.
Petitioner appears to recognize that none of the above-mentioned "errors" rises to the level of a constitutional violation. He admits that the trial record "presents no single glaring error of commission or omission by the defense." (Appellant's Br. at 3, Attach. to Pet.) Instead of relying on a single act or omission of counsel, petitioner argues that the attorney's performance "taken as a whole" was ineffective. It is in this context that petitioner emphasizes the trial counsel's "unprofessional conduct before the jury" in addition to the other acts listed above. (Appellant's Br. at 3, Attach. to Pet.) It is true that petitioner's lawyer engaged in certain improper behavior. He called the prosecutor a "jerk" in front of the jury. (Tr. 209.) The judge admonished him more than once for making faces and repeating answers of witnesses in a mocking tone. (Tr. 184-87, 242.) But these actions, while unprofessional, did not deprive petitioner of meaningful and effective representation. The record demonstrates that throughout the case, the trial counsel vigorously represented petitioner. The representation may have been overzealous at times. But ultimately, the tactics chosen by the trial counsel succeeded in obtaining for petitioner an acquittal on the most serious charge of murder in the second degree.
Furthermore, under the Strickland standard, petitioner must show not only that his trial counsel's performance was deficient, but also that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. Petitioner has not made such a showing. Consideration of the record as a whole demonstrates that petitioner received a fundamentally fair trial. Petitioner admitted that he was present at the street fight and fired a gun into the air. (Tr. 411-12.) Three witnesses testified that they saw petitioner shoot two men, including Ralph Smalls. (Tr. 132-34, 196-99, 224-25, 336-37.) There was testimony that petitioner then began chasing Michael Brandy, after which two witnesses heard additional gunshots. (Tr. 134, 200-01.) There was clearly sufficient evidence for the jury to find petitioner guilty. None of the items listed above was sufficiently prejudicial to affect the probable outcome of the trial.
3. Ineffective Assistance of Appellate Counsel
The Strickland standard applies to claims of ineffective assistance of appellate counsel as well as to claims of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), cert. denied, 513 U.S. 820, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994). Accordingly, Loving must demonstrate both: (1) that his attorney's representation on appeal was unreasonable under prevailing professional norms; and (2) that there is a reasonable probability that, but for his attorney's errors, the result of the appeal would have been different.
Loving's only description of his appellate attorney's ineffectiveness is the following: "A lot of issues were not presented in any court for failure of trial counsel to adequately represent the appellant, this also goes as far as dealing with counsel on appeal as well." (Pet. at 6.) Conclusory allegations without specific factual allegations supporting the conclusions are insufficient for habeas corpus relief. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994); Cowan v. Artuz, 1996 WL 631726 (S.D.N.Y. 1996). In any case, a review of the appellate brief filed on petitioner's behalf shows no inadequacies. In the brief, the appellate counsel presented a clear and cogent argument detailing specific instances which he argued demonstrated trial counsel's ineffectiveness. The appellate counsel also emphasized the prejudicial atmosphere of the trial as a whole. Petitioner has not shown that his appellate counsel omitted any nonfrivolous issues from his brief, let alone any "significant and obvious issues." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), cert. denied, 513 U.S. 820, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994). Nothing in the record suggests that the appellate counsel's representation was in any way deficient. Furthermore, Loving has not pointed to anything suggesting a reasonable probability that the Appellate Division's holding with respect to the effectiveness of trial counsel would have been different had his appellate counsel raised different issues.
For the foregoing reasons, the petition is denied. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.
Dated: New York, New York
March 21, 1997
MIRIAM GOLDMAN CEDARBAUM
United States District Judge