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BROWN v. COSTELLO

United States District Court, Southern District of New York


January 13, 2003

EDDIE BROWN, PETITIONER
v.
JOSEPH J. COSTELLO, ET AT., RESPONDENT.

The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge

OPINION & ORDER

Eddie Brown ("petitioner"), an inmate at Mid-State Correctional Facility, brings this habeas proceeding pursuant to 28 U.S.C. § 2254 to challenge the lawfulness of his incarceration. Petitioner alleges that the judgment of the Supreme Court, New York county, entered by Judge A.K. Bradley on May 16, 1984, following a jury trial, convicting him of robbery in the first degree (penal law section 160.15) and robbery in the second degree (penal law section 160.10), was unlawful. Although Brown's petition was referred to Magistrate Judge Ellis on October 18, 2000 and the petition became sub judice on February 27, 2001, I withdrew the referral on April 29, 2002.

Specifically, petitioner maintains that (1) he was denied due process rights to a fair trial and confrontation because the court refused to allow counsel to introduce the sentencing minutes to impeach complainant Darrell Blake's false testimony, even though the defense was that he was untruthful; (2) the verdict was inconsistent because petitioner was found guilty of robbery in the first degree and not guilty of criminal possession of a weapon; (3) the adverse inference charge was insufficient to cure the prejudicial effects caused by the destruction of evidence, thereby denying petitioner due process of law; and (4) he was denied the right to effective assistance of appellate counsel on his direct appeal because counsel failed to argue a Rosario/Brady error; the sentence was obtained in violation of petitioner's constitutional rights; and appellate counsel filed an inadequate and improper application to the New York State Court of Appeals.

For the reasons detailed in full below, petitioner's section 2254 habeas petition is denied in its entirety.

I. FACTUAL BACKGROUND

On August 12, 1993, Darrell Blake ("Blake") was selling merchandise on St. in Manhattan across the street from a gas station. (Id. 25). Blake was being assisted by two homeless men, one of whom he knew as Tony. (Id. 27). At or about 9:30 PM, Tony called Blake over towards a car and asked him if he had change for a $100 bill because somebody wanted to purchase merchandise. (Id.).

Blake walked towards Tony's apparent customers, who were in a small white car parked in the gas station, with some of his items and $200. Petitioner, the driver of the car, engaged Blake in a conversation about a large purchase. While conversing with Blake, Warren Johnson ("Johnson"), a passenger in the car, got out of the car and approached Blake. (Id. 31). Johnson tugged at Blake's shirt and pointed a .357 magnum at his side and cocked the hammer. Petitioner began to put Blake's merchandise into the car and demanded that Blake, as well as Tony, also put the merchandise into the car. Petitioner also took Blake's $200 and a pouch that Blake was wearing. (Id. 35-36).

Blake contacted the police after petitioner drove away and provided them with a license plate number. Police Officer Thomas Pryor ("Pryor") and his partner, Eric Hendricks, were in civilian clothes at the time and patrolling in unmarked vehicles. Pryor ran a search of the license plate number and was informed that the registered address for the plate was 1515 McCombs Road in Bronx County. (Id. 77-78). Pryor also received a description of the robbers as two Jamaican males. (Id.). However, these tapes from the police containing the description of the robbers were erased prior to trial and the Police Department was unable to locate the Sprint report. (Id. 204-05).

The officers went to the address and waited for an hour before the vehicle meeting the broadcast description stopped nearby at approximately 11:00 PM. (Id.). Three individuals were in the vehicle, two males that met the description and one female. Pryor ordered the individuals out of the car and found a loaded .357 in the backseat along with a variety of inflatable toys and a small pouch. (Id. 80-81). Pryor took petitioner and Johnson to the precinct. At the precinct, Pryor spoke with Blake and showed him the revolver, which Blake recognized as the weapon used by the robbers. In addition, Blake also recognized the car driven by petitioner during the robbery. Further, while walking to the car, Blake recognized his merchandise and his pouch, which were still in the car. (Id. 45). Petitioner and Johnson were charged with first-degree robbery, second-degree robbery, and related offenses. On April 22, 1994, petitioner proceeded to jury trial presided over by Justice Bradley.

Prior to trial, a Wade & Mapp hearing was conducted. Petitioner moved to suppress the use of evidence against him, certain physical evidence and identification evidence. (Wade/Mapp 69). The judge found that the police had probable cause for arresting petitioner and Johnson and that the line-up was properly conducted. (Id. at 72). Also prior to trial, the prosecutor had informed the defense of Blake's criminal history, including a prior Staten Island conviction for selling narcotics, and had given the defense the sentencing transcript in that case. (Wade/Mapp 6). The Staten Island transcript showed that when Blake was sentenced, Blake's attorney advised the Staten Island judge that Blake had sold drugs to "raise money." (Prieto Aff. Ex. B). Neither Blake nor his attorney had told the judge what Blake had done with the money, nor did they state whether or not Blake had a drug habit. Id. The Staten Island judge observed that according to the pre-sentence report Blake "denies that he doesn't [sic] use crack for about 6 months," and that the proceeds from the drug sales had been used "to buy some things that he needed for the house which also includes food," and the Staten Island prosecutor had observed that Blake never claimed to be a drug addict. Id.

During his testimony at petitioner's trial, Blake admitted the conviction and the underlying criminal conduct, stating that he had sold drugs to support his drug habit. On cross-examination, counsel asked Blake if he told the Staten Island judge that he sold drugs because he needed the money and if he had specifically claimed that he "did not have a drug problem." (Tr. 61-62). Blake responded that he did not remember. (Id. 62). Defense counsel requested the judge to exercise his discretion and admit the Staten Island transcript into evidence. However, Justice Bradley denied this request. (Colloquy 133-37).

On summation and without objection, the prosecutor, in responding to a defense argument that Blake should not be believed because he was a "convicted drug dealer," asked the jury to credit Blake by stating the following:

I submit to you he was up front with you about his past. About his sale conviction and about the time he spent in prison. And in telling you about that past, Ladies and Gentlemen, I submit to you he didn't paint himself as someone who was innocent of the charges. These things evidence [sic] about what he did tell you and about himself and I suggest to you that gives him credibility here and believability as to what he tells you happened. (Summation 175).
On appeal, petitioner claimed that (1) his due process rights to a fair trial and confrontation were violated because the prosecutor failed to correct knowingly false testimony by Blake and argued in summation that Blake had testified honestly; and (2) the court improperly precluded petitioner's counsel from impeaching Blake about the false testimony with a prior inconsistent statement.

On February 5, 1998 the Appellate Division, First Department, unanimously affirmed petitioner's conviction. People v. Brown, 247 A.D.2d 221 (1st Dep't 1998). Specifically, the Appellate Division held that the trial court had properly precluded petitioner from introducing extrinsic evidence of an alleged prior inconsistent statement made by Blake with respect to a purely collateral matter. The court noted that Blake's alleged inconsistent statement was disclosed to petitioner in a timely fashion and that there was no prosecutorial misconduct. Petitioner's remaining claims were unpreserved and the court declined to review them. However, the court indicated that the remaining claims, if reviewed, would be without merit. (Prieto Aff. Ex. C). Petitioner's application for leave to appeal to the Court of Appeals was, denied on May 7, 1998. People v. Brown, 91 N.Y.2d 1005 (1998).

By motion dated January 22, 1999, petitioner, pro se, moved pursuant to N.Y. Crim. Proc. Law section 440.10 to vacate his conviction raising the following claims: (1) the judgment was obtained in violation of petitioner's rights under the New York State and United States Constitutions because his substantial due process and equal protection rights were violated when the trial court failed to correct an inherently inconsistent and repugnant verdict; (2) the sentence was invalid as a matter of law because petitioner was not guilty of the essential element, criminal possession of a weapon, of robbery in the first degree and the sentence imposed on this count must be modified to robbery in the second degree; (3) material evidence adduced by the prosecution at trial resulting in the judgment was procured in violation of petitioner's rights under the state and federal constitutions because the adverse inference charge did not cure the prejudicial effect caused by the prosecution's destruction of evidence that was timely requested by the defense.

Petitioner's section 440 motion was denied on March 11, 1999. However, on July 26, 1999 petitioner sought a writ of error coram nobis on the ground that he was denied effective assistance of appellate counsel. Specifically, petitioner claimed that his counsel should have raised Rosario, repugnancy, and illegal sentence claims on his appeal to the Appellate Division, and that his counsel prepared an insufficient leave application for the Court of Appeals. On April 4, 2000, petitioner's application for a writ of coram nobis was denied, and this petition followed on or about May 3, 2000.

As noted supra, petitioner raises the following claims in his section 2254 habeas petition: (1) he was denied due process rights to a fair trial and confrontation because the court refused to allow counsel to introduce the sentencing minutes to impeach complainant Blake's false testimony, even though the defense was that Blake was untruthful; (2) the verdict was inconsistent because petitioner was found guilty of robbery in the first degree and not guilty of criminal possession of a weapon; (3) the adverse inference charge was insufficient to cure the prejudicial effects caused by the destruction of evidence, thereby denying petitioner due process of law; and (4) he was denied the right to effective assistance of appellate counsel on his direct appeal because counsel failed to argue a Rosario/Brady error, the sentence was obtained in violation of petitioner's constitutional rights, and appellate counsel filed an inadequate and improper application to the New York State Court of Appeals. (Pet. at 5-6).

II. DISCUSSION

A. Inconsistent Verdict and Adverse Inference Claims (grounds two and three) Are Procedurally Barred

In ground two of his petition, petitioner claims that the verdict was inconsistent because he was found guilty of robbery in the first degree notwithstanding the fact that he was found not guilty for criminal possession of a weapon. In ground three, petitioner claims that the trial court's adverse inference charge was insufficient to cure prejudice that was caused by the state's failure to produce the tape recordings containing the description of the suspects that Officer Pryor received from the radio transmission. Respondent asserts that both claims should be dismissed because petitioner has failed to exhaust his state court remedies and is thus procedurally barred from doing so here, and I agree.

A state prisoner must exhaust all available state remedies before filing a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) ("[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."). For a claim to be exhausted, the petitioner must have presented the same claim or, claims raised in the habeas petition to each level of the state courts to which the right of appeal lies. Priester v. Senkowski, 2002 WL 1448303, at *3 (S.D.N.Y. July 3, 2002). If the petitioner fails to present each claim or claims to each level of the state courts but is foreclosed from so doing by a state procedural rule, the petitioner's claim is "deemed exhausted" for the purposes of federal habeas review. Id. (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)).

The Second Circuit determines whether a claim is exhausted by applying a two-step analysis: First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim he now brings in federal court. Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state appellate review of the denial of that claim. See Harris v. Artuz, 2000 WL 358377, at *2 (S.D.N.Y. Apr. 7, 2000); Ramos v. Keane, 2000 WL 12142, at * 4 (S.D.N.Y. Jan 6, 2000) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). Where a petitioner fails to exhaust his claim through direct appeal to the highest state court, he must "utilize available state remedies for collateral attack of his conviction in order to satisfy the exhaustion requirement." Klein, 667 F.2d at 282. Exceptions to the exhaustion requirement lie only when the petitioner has no opportunity for relief in state court, or when pursuing available remedies would be futile.

However, the exhaustion requirement of section 2254(b) "refers only to remedies still available at the time of the federal petition." Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982). In other words, a "federal habeas court need not require that a federal claim be presented to a state court [i.e., for exhaustion purposes] if it is clear that the state court would hold the claim procedurally barred." Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989). The procedural bar which gives rise to exhaustion constitutes an "independent and adequate" state law ground for the default of a claim or claims. Absent a showing of cause for the procedural default and prejudice resulting therefrom, claims constructively exhausted through procedural default are considered waived. One state procedural rule relevant to this case is that, under New York law, a criminal defendant is permitted only one direct appeal of a conviction to the Appellate Division. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Although a petitioner may exhaust his federal claim in state court by raising it in a state court collateral attack on his conviction under N.Y. CPL section 440.10, such review is unavailable if the claim was not raised on direct appeal. See N.Y. CPL section 440.10(2)(c) (stating that a court must deny a motion to vacate under section 440.10 "if no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal").

With respect to the "cause" prong, the petitioner must show that "some objective factor external to the defense impeded counsel's efforts to raise the claim" in the prior petition. For example, "`a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard.'" Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). With respect to the prejudice prong, the petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982).

The final exception that will allow federal habeas review of a procedurally defaulted claim is if refusal by a court to consider the merits of the claim would result in a fundamental miscarriage of justice, which has been found to "occur only in those `extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.'" Rodriquez v. Mitchell, 252 F.3d 191, 204 (2d Cir. 2001) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (petitioner must show a "sufficient probability that [the] failure to review his federal claim will result in a fundamental miscarriage of justice"); Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must make a "colorable showing" that "it is more likely than not that no reasonable juror would have convicted" petitioner); Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (the fundamental miscarriage of justice exception is "concerned with actual as compared to legal innocence"). In Schlup, the Supreme Court stated that a court should grant such an exception only in the "extraordinary case." To establish "actual" innocence, a habeas petitioner must come forward with "new reliable evidence that was not presented at trial and show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup, 513 U.S. at 299 (emphasis added), see also id. at 324 ("To be credible, [a fundamental miscarriage of justice claim] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. For instance, new statements of alleged eyewitnesses are sufficiently persuasive to determine that failure to hear the federal claim could result in a `fundamental miscarriage of justice'"). Id. at 331. This is a very narrow exception that is "explicitly t[ied]" to innocence, and requires a showing that petitioner "probably" did not commit the crime. Id. at 322.

In this case, the state procedural default with respect to grounds two and three of petitioner's habeas petition constitutes an independent and adequate state ground precluding federal review. Specifically, petitioner failed to raise either of these claims on his direct appeal to the First Department. Although petitioner raised these claims in his section 440.10 motion, the Supreme Court denied that motion on the ground that petitioner failed to raise these claims on direct appeal, a requirement under N.Y. CPL section 440.10(2)(c). Accordingly, absent a showing of cause for the procedural default and prejudice resulting therefrom, petitioner's claims are procedurally defaulted and considered waived.

I do not find that petitioner has demonstrated cause and prejudice for the procedural default, or a fundamental miscarriage of justice resulting therefrom, so as to overcome the state procedural bar. Petitioner asserts "cause" for his failure to raise these claims in his direct appeal to the First Department insofar as his appellate counsel was ineffective. However, for reasons detailed infra at II.B(3), petitioner's claim that his appellate counsel was ineffective lacks merit. In any event, even if petitioner's counsel were ineffective, which it was not, petitioner has nevertheless failed to establish prejudice because he has failed to demonstrate that these alleged "errors" at this trial "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. First, with respect to the allegedly inconsistent verdict, a finding of guilty on a charge of criminal possession of a weapon is not necessary to find a defendant guilty of robbery in the first degree under New York law. Specifically, New York Penal Law section 160.15 states that

[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a perticipant in the crime; or (2) Is armed with a deadly weapon; or (3) Uses or threatens the immediate use of a dangerous instrument; or (4) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime. N.Y. Penal Law section 160.15.
Therefore, under New York law, petitioner need not be found guilty of criminal possession of a weapon to be found guilty of robbery in the first degree; rather, it is sufficient if another participant in the crime displays a gun. See N.Y. Penal Law section 160.15(4). Here, petitioner's accomplice, Johnson, held the gun to Blake's side during the commission of the robbery; further, Blake testified at trial that Johnson held a gun to his side and cocked its hammer. (Tr. 35-36). Finally, the gun was produced as evidence during the trial. Because I find that petitioner's claim with respect to the allegedly inconsistent verdicts to be without merit, I cannot find that petitioner has demonstrated the requisite cause and prejudice to overcome his procedural default.

Second, I also do not find that petitioner has demonstrated prejudice with respect to the adverse inference charge. Specifically, petitioner maintains that he was denied a fair trial because the adverse inference charge did not remove the prejudicial effects of the destruction of the tapes from the police which contained the description of the robbers. During the jury charge, the judge stated:

you have heard testimony that the police made various radio transmissions, that these transmissions were recorded, that a print report was generated and that the tapes were to be kept for 90 days and then destroyed. The Police Department erased the tapes place [sic] and are unable to locate the sprint report. Because of the failure of the People and the Police Department to produce the tapes and the sprint report, you may but are not required to, draw an inference averse to the People. You may if you deem appropriate, infer either there were no tapes and no radio transmission or that there were transmissions but their contents was [sic] different than has been testified to in court, so that their production in Court would somehow not support the People's case. (Tr. 204-05).
I agree with respondent that this claim lacks merit. Indeed, the court adequately instructed the jury that it was within its discretion to draw an inference adverse to the People if it believed that the tapes were destroyed because the information on the tapes would have differed from the testimony at trial. In other words, "[t]he adverse inference charge was to petitioner's advantage because it allowed the jury to draw an inference against the State for failing to produce evidence." (Resp.'s brief at 13, emphasis added). Accordingly, I do not find that petitioner has demonstrated the requisite "prejudice" to overcome the state procedural bar with respect to the trial court's adverse inference charge.

Finally, because petitioner has failed to tome forward with "new reliable evidence that was not presented at trial and show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt" with respect to either claim, Schlup, 513 U.S. at 299, I find that he has failed to demonstrate that the very "narrow" exception of a fundamental miscarriage of justice applies here.

B. Petitioner's Remaining Claims

1. Standard of Review

The applicable standard of review of a habeas petition challenging a state court decision is governed by whether the petition presents a question of law, a question of fact, or a mixed question of law and fact. Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not be granted unless the federal court finds that the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).
State court factual determinations must be presumed correct unless the petitioner is able to rebut them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), state judicial determinations of law and mixed questions of law and fact are afforded more deference than had previously been required. While federal courts may no longer exercise de novo review over questions of law, the habeas court may grant relief if the state court decision was "contrary to" clearly established law, as determined by the Supreme Court. However, the federal court must defer to the judgment of the state court unless the state court determination constitutes an "unreasonable application" of clearly established federal law as determined by the Supreme Court. I agree with respondent that petitioner has failed to demonstrate that the state court adjudication was contrary to clearly established federal law, or that it involved an "unreasonable application" of clearly established federal law.

2. Petitioner's Right to a Fair Trial

In the first ground of his petition, petitioner claims that the trial court inappropriately refused to allow counsel to introduce the sentencing minutes of Blake's conviction for selling drugs in order to impeach Blake's testimony.

Collateral matters are those that bear exclusively on the witness' credibility. United States v. Calvente, 722 F.2d 1019, 1024 (2d Cir. 1983), cert. denied, 471 U.S. 1021 (1985). Further, a prior inconsistent statement related to a collateral matter does not violate a constitutional right. Castro v. Sullivan, 662 F. Supp. 745 (S.D.N.Y. 1987) (holding that the trial judge's decision to preclude petitioner's further exploration of this collateral issue does not constitute an abuse of discretion, much less constitutional error requiring reversal of petitioner's conviction). In Rosario v. Kuhlman, the Second Circuit outlined the test that courts should use when determining whether extrinsic evidence is admissible to impeach a witness, stating that

[t]he determinative question in deciding whether extrinsic evidence contradicting a witness's testimony is admissible is not whether the contradicting extrinsic evidence is material or collateral, but rather whether the assertions that the impeaching party seeks to contradict are themselves material or collateral. In determining whether the testimony to be contradicted is material or collateral New York courts have adopted a test proposed in Attorney-General v. Hitchcock, 1 Exch. 91, 99 (1847), and put forth by 3A J. Wigmore, Evidence § 1003 (Chadbourne rev. 1970); People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied, 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96 (1969). The Schwartzman court held that "a fact is not a collateral matter if it could be shown in evidence for any purpose independent of the contradiction." 24 N.Y.2d at 246, 299 N.Y.S.2d at 821, 247 N.E.2d at 645. Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988).
Here, applying the test outlined in Kuhlman, Blake's alleged drug habit was a purely collateral matter dealing with Blake's credibility and had no bearing whatsoever on establishing petitioner's guilt beyond a reasonable doubt. Indeed, I do not find that Blake's alleged drug use could have been "shown in evidence for any purpose independent of the contradiction." Schwartzman, 24 N.Y.2d at 246, 299 N.Y.S.2d at 821, 247 N.E.2d at 645. In addition, during trial petitioner was able to cross-examine Blake and, in fact, questioned him about his drug conviction. More precisely, defense counsel asked Blake if he told the sentencing judge that he did not have a drug problem when he was being sentenced for the drug conviction, and Blake responded that he did not remember saying that to the judge — not necessarily a prior inconsistent statement. (Tr. 61). Accordingly, I find that petitioner has failed to establish that the state court adjudication was contrary to clearly established federal law, or that it involved an unreasonable application of clearly established federal law, with respect to this claim.

3. Ineffective Assistance of Appellate Counsel

Petitioner alleges that he was denied effective assistance of counsel on his direct appeal on the grounds that his appellate counsel failed to argue that a Rosario/Brady error had been committed, the sentence was obtained in violation of petitioner's constitutional rights, and that he made an improper application to the New York State Court of Appeals.

The Supreme Court has devised a two-part test to determine whether a petitioner received effective assistance of counsel. First, the petitioner must show that counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness" as measured under "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, the petitioner must affirmatively demonstrate prejudice by showing that "there is a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Id. at 694. In other words, in demonstrating prejudice, the petitioner "must shoulder the burden of showing, not merely that the errors at [his] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." U.S. v. Frady, 456 U.S. 152, 170 (1982) (emphasis added). While there is no precise definition of prejudice, courts have offered several suggestions. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) ("To satisfy the second, prejudice prong, the defendant must show that there is a `reasonable probability' that, but for the deficiency, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal" (quoting Strickland, 466 U.S. at 694). With respect to a challenge to appellate counsel specifically, the Second Circuit has stated that "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), cert. denied, 513 U.S. 820 (1994). Rather, the petitioner must demonstrate that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id.

Here, petitioner fails to demonstrate that his appellate counsel's efforts fell below an objective standard of reasonableness as measured under standard professional norms. As respondent points out, petitioner's appellate counsel submitted a detailed brief arguing that petitioner was deprived of his due process right to a fair trial and confrontation with respect to Blake's testimony concerning his drug history. Further, petitioner's counsel also maintained that the trial judge improperly precluded defense counsel from impeaching Blake about his testimony with extrinsic evidence of a prior inconsistent statement — i.e., the transcript from Blake's sentencing. Finally, petitioner's appellate counsel provided him entirely reasonable explanations for his decision not to raise other arguments on appeal, namely, petitioner's belief that the verdict was inconsistent and should therefore be dismissed and the fact that, in petitioner's view, the adverse inference charge that the trial judge gave the jury failed to cure the prejudicial effect caused by the lost 911 tapes and spring report. Indeed, in his letter to petitioner, appellate counsel stated that "[t]here is no issue involving the lost 911 tapes and spring report since the court gave the jury an adverse inference charge. The case law is clear that this is an acceptable remedy" and "[t]he verdicts were not inconsistent. The jury could have concluded that you participated in the robbery but that you did not own the gun." (Prieto Aff. Ex. N). I have already ruled that the verdict was not inconsistent and that the adverse inference charge was anything but prejudicial in section II.A. Accordingly, because I do not find that petitioner's appellate counsel omitted "significant and obvious issues" in refusing to raise these claims on appeal, petitioner's section 2254 habeas cannot be granted on the ground of ineffective assistance of appellate counsel.

III. CONCLUSION

For the foregoing reasons, petitioner's section 2254 haveas petition is denied, and the clerk of the court is instructed to remove this case from my active docket.

IT IS SO ORDERED.

20030113

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