The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
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 ...