United States District Court, W.D. New York
February 3, 2004.
TIMOTHY MULDROW, Petitioner, -vs- VICTOR HERBERT, Superintendent, Attica Correctional Facility, Respondent
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Petitioner Timothy Muldrow ("Muldrow"), filed this petition pro
se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in Monroe County Court of two counts of second
degree murder. For the reasons set forth below, Muldrow's § 2254
petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 28, 1993, Muldrow participated in the execution-style
murder of two people in their home. There was a third victim who survived
after being shot in the face. The motivation for the killings was to
silence witnesses to previous murders committed by a drug-dealing
associate of Muldrow named Jerold Usher ("Usher").
Two days after the shootings, the police seized five guns and other
contraband from Muldrow's apartment. Testing revealed that two of these
guns fired the bullets that killed one of the victims, and bullets
test-fired from a third gun were consistent with those used to shoot the
other two victims.
Muldrow was indicted jointly with two of the three co-defendants,
Raymond Stubbs ("Stubbs") and Anthony McGee ("McGee"), on two counts of
murder in the second degree (New York Penal Law ("P.L.") §§ 125.25(1)
and 20.00); two counts of felony murder (P.L. §§ 125.25(3) and 20.00);
one count of attempted murder in the second degree (P.L. §§ 125.25,
110.00, and 20.00); and one count of assault (P.L. §§ 120.10 and
Muldrow, Stubbs and Anthony were tried jointly. The fourth perpetrator,
Thearthur Grimes ("Grimes"), was tried separately because he confessed to
the police that he was present when the murders were committed and
implicated Muldrow and McGee as the gunmen. After a jury trial in Monroe
County Court, Muldrow was found guilty of two counts of felony murder and
sentenced to indeterminate consecutive terms of imprisonment of 25 years
to life on each count.
Muldrow appealed to the Appellate Division, Fourth Department, which
unanimously affirmed his conviction on June 16, 2000. The Court of
Appeals denied leave to appeal on September 20, 2000. This federal habeas
corpus petition followed.
Muldrow asserts two grounds for entitlement to habeas relief, both of
which stem from his appellate counsel's alleged incompetence.*fn1 First,
Muldrow faults counsel for failing to challenge on direct appeal the
purported inconsistencies in the verdicts at his trial: McGee was
acquitted of all counts of the indictment, Stubbs was convicted on all
counts of the indictment, and Muldrow was convicted on the felony murder
counts only. Muldrow claims that each co-defendant was required
to be acquitted or convicted of the same counts of the indictment
in order for the verdicts to be consistent.
A claim for ineffective assistance of appellate counsel is evaluated by
the same standard as is a claim of ineffective assistance of trial
counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.),
cert. denied, 513 U.S. 820 (1994) (citing Claudio v.
Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied,
508 U.S. 912 (1993)). A petitioner alleging ineffective assistance of
appellate counsel must prove both that appellate counsel was objectively
unreasonable in failing to raise a particular issue on appeal, and that
absent counsel's deficient performance, there was a reasonable
probability that defendant's appeal would have been successful.
Mayo, 13 F.3d at 533-34; see also Smith v. Robbins,
528 U.S. 259, 285 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d
Appellate counsel "need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to maximize the
likelihood of success on appeal." Smith v. Robbins, 528 U.S. at
288 (citing Jones v. Barnes, 463 U.S. 745, 750-54 (1983));
accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process
of' winnowing out weaker arguments on appeal and focusing on' those more
likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.") (citations omitted). The
habeas court should not second-guess the reasonable professional
judgments of appellate counsel as to the most promising appeal issues.
Jones, 463 U.S. at 754; see also Jackson v. Leonardo,
162 F.3d 81, 85 (2d Cir. 1998). Thus, a petitioner may establish
constitutionally inadequate performance only by showing that appellate
counsel "omitted significant and obvious issues while pursuing issues
that were clearly and significantly weaker." Mayo, 13 F.3d at
Muldrow's appellate counsel raised three important issues in a thorough
appellate brief to the Fourth Department, Grafting persuasive arguments
as to why the consent to search Muldrow's apartment given by his brother
was invalid and why the trial court abused its discretion in allowing
David Crutcher ("Crutcher"), who suffered from schizophrenia, to testify
at trial. These two issues in particular were of the utmost importance to
Muldrow's case, since the ballistics evidence from the guns seized from
his apartment, together with Crutcher's testimony, strongly linked him to
the murder. In contrast, the repugnant verdict issue urged by Muldrow in
this habeas petition was neither significant nor promising on appeal, and
it was entirely reasonable for Muldrow's appellate counsel to omit it.
Because Muldrow has failed to demonstrate that his appellate counsel's
performance was unreasonable, he cannot meet the first prong of the
standard by which ineffective assistance claims are judged.
However, even if he could establish that his appellate counsel's
lawyering was deficient, Muldrow has not demonstrated that he was
prejudiced by the deficiency. Because Muldrow and his co-defendants were
indicted and charged individually for the crimes of murder, as well as in
accordance with accomplice liability pursuant to P.L. § 20.00,*fn2
it is clear that there were, in fact, no inconsistencies in the verdicts.
Respondent correctly notes that the jury had to assess the evidence
against each of three defendants and make a separate determination of
guilt as to each. The fact that the jury convicted two defendants and
acquitted a third is of no legal significance. The jury may simply have
believed that the evidence was stronger against the two defendants it
found guilty, and not convincing as to the defendant (McGee) who was
acquitted. Thus, the issue now raised by
Muldrow is not persuasive, and he cannot establish prejudice from
his appellate counsel's neglect in pursuing the issue because there was
no "reasonable probability" that the admitted issue would have succeeded
even had it been argued on appeal. See Torres v. Irvin,
33 F. Supp.2d 257, 267 (S.D.N. Y. 1998) (even if petitioner could establish
that appellate counsel's advocacy was deficient, he suffered no prejudice
because no "reasonable probability" that the omitted claims would have
succeeded) (citing Mayo, 13 F.3d at 534)); Angel v.
Garvin, 2001 WL 327150 at *10 (S.D.N.Y. Apr. 3, 2001) (finding that
petitioner could not establish prejudice as a result of appellate
counsel's failure to raise non-meritorious claim based on insufficiency
of the evidence).
Moreover, an allegedly inconsistent verdict does not present a
constitutional violation. Therefore, such a claim is not even cognizable
on habeas review. The Supreme Court explained in United States v.
where truly inconsistent verdicts have been
reached, the most that can be said . . . is that
the verdict shows that either in the acquittal or
the conviction the jury did not speak their real
conclusions, but that does not show that they were
not convinced of the defendant's guilt. . . . It
is equally possible that the jury, convinced of
guilt, properly reached its conclusion . . . then
through mistake, compromise, or lenity, arrived at
an inconsistent conclusion on the [other] offense.
469 U.S. 57
, 58, 64-65 (1984) (internal quotations and citation
omitted); see also Harris v. Rivera, 454 U.S. 339
, 345 (1981)
("Inconsistency in a verdict is not a sufficient reason for setting it
aside."); United States v. Acosta, 17 F.3d 538
, 544-45 (2d Cir.
1994) ("Even assuming that the verdict against Acosta was inconsistent
with the verdicts as to his codefendants, we find no basis for relief,
for it has long been established that inconsistency injury verdicts of
guilty on some counts and not guilty on others is not a ground for
reversal of the verdicts of guilty."); Savage v. Berbary, 1991
WL 147371 at *2 (W.D.N.Y. July 22, 1991) ("Alleged inconsistencies in
state court verdicts are not a
proper ground for federal habeas corpus intervention. . . .");
Billups v. Costello, 1992 WL 170650 at *4 (S.D.N.Y. July 6,
1992) ("As long as a conviction is the result of a fair trial at which
legally sufficient evidence has been adduced, its inconsistency with
another verdict does not create a constitutional defect.").
As his second ground for habeas relief, Muldrow claims that his
appellate counsel was ineffective in failing to argue that he was
improperly convicted of felony murder in light of the prosecution's
alleged failure to prove a necessary element of burglary, the underlying
felony charged in this case. Petitioner's Habeas Brief, Dkt. #2 at 11. I
find that this argument lacks merit and that counsel was justified in not
raising it. Under New York law, all degrees of burglary require proof
that the defendant "knowingly enter[ed] or remain[ed] unlawfully in a
building with intent to commit a crime therein." See, e.g., P.L.
§ 140.25. Muldrow complains that "the trial proof was absent as to
that intended crime," leaving "the jury to speculate as to the intended
crime." Dkt. #2 at 12. As respondent points out, the prosecution need not
establish what particular crime the intruder intended to commit in order
to satisfy the elements of burglary under New York law. Respondent's
Habeas Brief, Dkt. #5 at 8 (citing People v. Mackey, 49 N.Y.2d 274,
279 (1980) (the New York Penal Law "definition of burglary is
satisfied if the intruder's intent, existing at the time of the unlawful
entry or remaining, is to commit any crime"); accord People v.
Grimes, 74 N.Y.2d 358, 362 n.1 (1989).
Moreover, it is not necessary for the intended crime to be committed.
Rather, "the intent necessary can be inferred from the circumstances of
the entry itself." Mackey, 49 N.Y.2d at 279. Muldrow contends
that the prosecution never proved that he entered the house. Dkt. #2 at
12. Although the gunmen were wearing black hats and their faces were
partially concealed by their clothing, there was more than adequate
circumstantial evidence at trial placing Muldrow at the scene
of the crime. Crutcher, who lived in an apartment commandeered by
Stubbs, McGee and Muldrow to sell cocaine, see Tr. at 1265-73,
1301, overheard Muldrow and his associates planning to kidnap the
witnesses to the murder committed by Usher, see id. at 1280-87.
Crutcher paid a friend to steal a car for him which he in turn provided
to the defendants.*fn3 Id. at 1293-1300. On the night of the
murder, Stubbs showed Crutcher four guns in a bedroom at the apartment
and said, "`[T]his is what we're going to use tonight.'" Id. at
1302-03. Later that evening, when the defendants left in search of the
witnesses, Crutcher observed Muldrow armed with one of the guns Stubbs
had shown him earlier. About 45 minutes later, Crutcher testified that
Stubbs returned to the apartment acting in an extremely emotional manner
and demanded to know whether Muldrow, McGee or Grimes had called.
Id. at 1316-19.
The ballistics evidence provided further corroboration linking Muldrow
to the shootings. Testing of the bullets recovered at the scene
established that two of the guns found in Muldrow's apartment fired the
bullets that killed one of the victims. The bullets fired at the second
murder victim and the wounded victim shot were consistent with having
come from a third gun found in Muldrow's apartment. In addition, Muldrow
fled when the police stopped the car in which he was riding, but was
caught after a foot chase. His unprovoked flight from the authorities
reasonably could be viewed by the jury as an indicator of guilt. See
United States v. Amuso, 21 F.3d 1251, 1259 (2d Cir.) (jury could
rationally infer that flight was indicative of guilty conscience),
cert. denied, 513 U.S. 932 (1994); Stone v. Stinson,
121 F. Supp.2d 226, 243 (W.D.N.Y. 2000) (petitioner's flight from Buffalo
to Virginia following shootings could properly be considered by the jury
of guilt); see also United States v. Malizia,
503 F.2d 578, 582-83 (2d Cir. 1974) ("Evidence of flight, like any other
circumstantial evidence, has consistently been admissible as evidence of
guilt if considered with other facts of the case."), cert.
denied, 420 U.S. 912 (1975).
There was ample testimony from which the jury could have inferred that
Muldrow unlawfully entered the victims' home and intended to commit a
crime while there. Consequently, the argument that the prosecution failed
to prove all the elements of the burglary underlying the felony murder
charge likely would not have succeeded on direct appeal. Appellate
counsel thus acted reasonably in failing to raise it, and Muldrow was not
prejudiced by the omission of this meritless argument from his appeal. I
find that Muldrow was represented ably by the public defender on his
direct appeal, and that his claims of ineffective assistance of appellate
counsel are without merit.
For the reasons stated above, Timothy Muldrow's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
petition is dismissed. Because Muldrow has failed to make a substantial
showing of a denial of a constitutional right, no certificate of
appealability shall issue. 28 U.S.C. § 2253. Further, I certify that
any appeal from this order would not be taken in good faith. See
28 U.S.C. § 1915(a); Coppedge v. United States,
369 U.S. 438, 444 (1962).
IT IS SO ORDERED.