The opinion of the court was delivered by: Trager, District Judge.
Following a jury trial in New York Supreme Court, County of
Queens, petitioner was convicted of a number of crimes arising
out of the fatal shooting of one man and the wounding of two
others on the boardwalk at Rockaway Beach in Queens. This
petition involves only the two most serious crimes of which
petitioner was convicted — murder in the second degree, so-called
"depraved mind murder," see N.Y. Penal Law § 125.25(2), and
manslaughter in the first degree, a lesser included count of
intentional murder. See N.Y. Penal Law § 125.20. Defendant was
sentenced to a term of twenty-five years to life in prison for
his second degree murder conviction, a concurrent term of eight
and one-third to twenty-five years for the first degree
manslaughter conviction, and additional shorter terms, running
concurrently, for the remaining convictions.
On October 3, 1988, the Appellate Division, Second Department,
unanimously affirmed petitioner's judgment of conviction. See
People v. Sellan, 143 A.D.2d 690, 533 N.Y.S.2d 109 (2d Dept.
1988). On December 20, 1988, the Court of Appeals denied leave to
appeal. See People v. Sellan, 73 N.Y.2d 860, 537 N.Y.S.2d 506,
534 N.E.2d 344 (1988). Nine months later, on August 22, 1989,
petitioner, pro se, filed an application for a writ of error
coram nobis with the Appellate Division, Second Department.
In that coram nobis application, petitioner argued that his
appellate counsel was ineffective for failing to cite the then
recent New York Court of Appeals decision People v. Gallagher,
69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909 (1987).
Petitioner argued, on the basis of that precedent, that the trial
court's refusal to charge intentional and depraved mind murder in
the alternative mandated a reversal of petitioner's conviction.
The Second Department summarily denied petitioner's application.
See People v. Sellan, No. 9152 (2d Dept. Jan. 25, 1990). On
March 16, 1990, the New York Court of Appeals again denied leave
to appeal. See People v. Sellan, 75 N.Y.2d 924, 555 N.Y.S.2d 43,
554 N.E.2d 80 (1990).
On April 16, 1990, petitioner, represented by the same counsel
that represented him at trial, filed with the Appellate Division,
Second Department, a motion for reargument of his direct appeal
or reconsideration of his application for a writ of error coram
nobis. The Second Department again summarily denied petitioner's
motion on July 20, 1990. See People v. Sellan, No. 3778 (2d
Dept. July 20, 1990). On October 5, 1990, the New York Court of
Appeals dismissed petitioner's application because the Second
Department's order was not appealable under New York Criminal
Procedure law. See People v. Sellan, 76 N.Y.2d 944,
563 N.Y.S.2d 73, 564 N.E.2d 683 (1990).
Petitioner, now acting again pro se, next filed in the Supreme
Court, County of Queens, a motion to vacate his judgment of
conviction pursuant to N.Y. Criminal Procedure Law § 440.10. The
Supreme Court, on March 26, 1993, issued a decision denying
petitioner's motion as procedurally barred and, in the
alternative, finding his claims to be meritless. On October 4,
1993, the Supreme Court granted petitioner's motion to reargue
but, upon reargument, denied his motion to vacate his judgment of
Petitioner filed this application for a writ of habeas corpus
on April 15, 1997, claiming that appellate counsel's failure on
the direct appeal of his New York State conviction to raise an
issue of state law violated petitioner's right to counsel as
applied to the States under the Fourteenth Amendment of the
United States Constitution. Specifically, petitioner contests
appellate counsel's failure to argue that, under New York law,
the jury could not properly have found petitioner guilty beyond a
reasonable doubt of both depraved mind murder and intentional
manslaughter because "the two crimes have inconsistent and
repugnant elements." Pet. Mem. of Law, p.2. Petitioner's argument
was that the manslaughter charge required the jury to find that
defendant intended to cause serious physical injury to his
intended victim, while the murder charge depended upon a finding
that he acted with an extreme state of recklessness in causing
the death of that same victim. The alleged error was properly
preserved for appeal by trial counsel, but appellate counsel
chose not to raise the issue on petitioner's direct appeal.
Petitioner contends that had this issue been raised on appeal,
New York courts would "almost certainly" have ordered a new trial
on the homicide charges. Id. The District Attorney argues that
appellate counsel's failure to raise the state law claim did not
render counsel's assistance inadequate.
At issue on this application for a writ of habeas corpus is the
scope of the
federal right to adequate representation by counsel. That a right
to adequate representation by counsel exists has been clearly
established by the Supreme Court of the United States. See
McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441,
1449 n. 14, 25 L.Ed.2d 763 (1970) ("It has long been recognized
that the right to counsel is the right to the effective
assistance of counsel.") (citations omitted). The federal right
to adequate representation by counsel encompasses appeals of a
state criminal conviction where a defendant has an appeal as of
right under state law. See Evitts v. Lucey, 469 U.S. 387, 396,
105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985) (right to effective
assistance of appellate counsel on direct appeal as of right is a
federally guaranteed and protected right; failure that caused
petitioner to waive right to direct appeal on the merits was akin
to situation in which a petitioner has "no counsel at all").
These principles having been established, two questions must be
answered in the affirmative before a writ of habeas corpus may
issue in this case: whether appellate counsel's performance here
was prejudicially inadequate, and if so, whether federal habeas
law recognizes that appellate counsel's failure to raise issues
of state law on direct appeal of a state conviction may provide a
basis for granting a writ of habeas corpus.
On the issue of the adequacy of petitioner's appellate counsel,
this case presents a close question. The Appellate Division,
Second Department, concluded on January 25, 1990, that
petitioner's representation was adequate under State law. See
People v. Sellan, No. 9152 (2d Dept. Jan. 25, 1990) (denying
motion for writ of error coram nobis "on ground of ineffective
assistance of appellate counsel"). In order to prevail in a
habeas proceeding on a claim of ineffective assistance of
counsel, a petitioner must show both that his counsel acted
"outside the wide range of professionally competent assistance"
and that the inadequacies in his counsel's performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 690,
691-92, 104 S.Ct. 2052, 2065, 2066-67, 80 L.Ed.2d 674 (1984). In
other words, a petitioner must show that absent the inadequate
performance of counsel, the ultimate result of the criminal
proceeding would have been different.
Prior to the passage of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), a habeas court reviewing a claim
of ineffective assistance of counsel was required to "judge the
reasonableness of counsel's challenged conduct on the facts of
the particular case, viewed as of the time of counsel's
conduct." Jameson v. Coughlin, 22 F.3d 427 (2d Cir. 1994)
(emphasis added) (quotations and citations omitted). Under the
new standard enunciated in AEDPA, a habeas court, when reviewing
the decision of a state appellate court denying a claim of
ineffective assistance of counsel, must deny an application for a
writ of habeas corpus unless the adjudication of the state law
claim "involved an unreasonable application of  clearly
established Federal law, as determined by the Supreme ...