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SELLAN v. KUHLMAN

September 14, 1999

ANGEL SELLAN, PETITIONER,
v.
ROBERT KUHLMAN, SUPERINTENDENT OF SULLIVAN CORRECTIONAL FACILITY, AND DENNIS VACCO, NEW YORK STATE ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Trager, District Judge.

MEMORANDUM AND ORDER

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 conviction.

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.

Discussion

(1)

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.

(2)

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 ...


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