No. 66, Docket 89-2010.United States Court of Appeals, Second Circuit.Argued December 11, 1989.
Decided February 23, 1990.
Eleanor Jackson Piel, New York City, for petitioner-appellant.
Linda Cantoni, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Kings County, N.Y., Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, N.Y., of counsel), for respondent-appellee.
Appeal from the United States District Court for the Eastern District of New York.
Before TIMBERS, PIERCE and MINER, Circuit Judges.
MINER, Circuit Judge:
[1] Shaykh Matulu Abdurrahman appeals from an order of the United States District Court for the Eastern District of New York (Dearie, J.), dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1982) on the ground that he failed to exhaust available state remedies. ThePage 72
district court determined that Abdurrahman had not raised the claims of ineffective assistance of appellate counsel and involuntary waiver of jury trial in the state court, thus barring federal habeas review.
[2] Abdurrahman contends that these claims were raised in a supplemental brief submitted pro se to the Appellate Division of the New York State Supreme Court and were rejected. See People v. Abdurrahman, 135 A.D.2d 721, 522 N.Y.S.2d 621 (2d Dep’t 1987), leave to appeal dismissed, 72 N.Y.2d 915, 532 N.Y.S.2d 849, 529 N.E.2d 179 (1988). He has since abandoned the jury waiver claim. He asserts the district court erred in dismissing his petition and maintains that the inadequacy of his appellate counsel’s representation constituted a denial of due process. We hold Abdurrahman exhausted his state court remedies; however, we deny the writ, finding his ineffective assistance of counsel claim to be without merit.[3] BACKGROUND
[4] Abdurrahman was arrested by New York City Police Officer Sellers Wilson and his partner on November 1, 1984, after Nelly Pellot notified the police that she had seen Abdurrahman, who was wanted for a shooting she had witnessed two months earlier. Wilson recovered a .32 caliber gun from Abdurrahman after a “stop and frisk” search.
warnings, he stated on videotape that he carried the revolver for his own protection. The New York State Supreme Court denied the motion to suppress the revolver and the post-arrest statements. [7] Abdurrahman executed in open court a written waiver of his right to a jury trial. He subsequently was tried for Criminal Possession of a Weapon in the Third Degree, under New York Penal Law § 265.02[4] (McKinney 1989). By way of offer of proof, Abdurrahman proposed to testify that his unlawful possession of the gun was necessitated by threats previously made against him by a man named Colon. Although Colon was in prison, Abdurrahman still felt threatened by Colon’s family. The trial judge rejected the justification defense on the ground that there was no imminent threat of harm. The court found Abdurrahman guilty of the possession charge and sentenced him to a term of imprisonment of 2 1/2 to 5 years as a second felony offender. [8] On his state appeal, Abdurrahman considered the excessive punishment claim raised by his appointed counsel to be “frivolous.” He therefore filed a supplemental brief pro se,
which included a fourth amendment claim alleging the absence of probable cause for the search and subsequent arrest. The appellate division affirmed the conviction, rejecting the excessive punishment and fourth amendment claims and dismissing his other claims as meritless. People v. Abdurrahman, 135 A.D.2d 721, 522 N.Y.S.2d 621 (2d Dep’t
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1987), appeal dismissed, 72 N.Y.2d 915, 532 N.Y.S.2d 849 (1988).
[9] Abdurrahman then filed this pro se habeas petition in the United States District Court for the Eastern District of New York, raising, inter alia, denial of effective assistance of appellate counsel, involuntary waiver of his right to a jury trial, and lack of probable cause for the frisk search. The court dismissed his petition, finding that the ineffective assistance of appellate counsel and the jury waiver claims had not been raised in state court. [10] On appeal to this court, Abdurrahman asserts that he raised the claim of ineffective assistance of appellate counsel in his supplemental brief to the appellate division. Specifically, he highlights the passage which stated:[11] He further notes that he has since abandoned his jury waiver claim on his appeal to this court.“Unfortunately I still had to put in a supplementary brief because of Lawyer brief that seem not to address himself to the minute of trial transcript and constitutional issue which I can not see as harmless error Stickland v. Washington. [sic]”
[12] DISCUSSION
[13] Abdurrahman contends that the district court erred in dismissing his petition for a writ of habeas corpus because he adequately raised a claim of ineffective assistance of appellate counsel in his supplemental brief to the appellate division.[1]
In support of his position, he highlights the appellate division’s dismissal of his “remaining contentions,”Abdurrahman, 135 A.D.2d at 721, 522 N.Y.S.2d at 622, assuming those to include, inter alia, the ineffective assistance of counsel claim.
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the record for review is adequate,[2] we find no reason to remand the case to the district court. Cf. Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 1792, 72 L.Ed.2d 66 (1982).
[16] A defendant challenging his conviction based on a claim of inadequate representation bears the burden of showing that his attorney’s performance “fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064, and that but for this error, there is a “reasonable probability” the outcome would have been different id. at 694, 104 S.Ct. at 2068. Although the Strickland v. Washington test was enunciated in the context of a claim of inadequate representation arising from an attorney’s performance at trial, it is also applicable to claims directed to appellate representation. See Miller v. Keeney, 882 F.2d 1428, 1433-34 (9th Cir. 1989); cf. Cantone v. Superintendent, 759 F.2d 207, 218 n. 19 (2d Cir.), cert. denied, 474 U.S. 835, 106 S.Ct. 109, 88 L.Ed.2d 89 (1985). [17] Abdurrahman asserts that he did not receive adequate representation on his state appeal because his attorney raised only an excessive punishment claim and should have raised additional claims, including lack of probable cause for the search and arrest. Thus, he contends that the Strickland v. Washington test is inapplicable because, for the most part, he was forced to proceed without the assistance of appellate counsel. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 354, 102 L.Ed.2d 300 (1988); Jenkins v. Coombe, 821 F.2d 158, 161 (2d Cir. 1987) (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985)), cert. denied, 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988). [18] In Jenkins, we found that the Strickland v. Washington test did not apply because the appellant received, “no counsel or, at best, nominal counsel” on his state appeal. There, the appellant submitted a pro se brief after his appointed counsel was removed prior to the appeal and no replacement was assigned Jenkins, 821 F.2d at 161. Similarly, the Supreme Court has affirmed the grant of a writ of habeas corpus where a petitioner’s state appeal was foreclosed because of a procedural error on the part of appellate counsel. Lucey, 469 U.S. at 389-90, 396, 105 S.Ct. at 832-33, 836. [19] Although Abdurrahman raised all but one of the claims pro se,counsel represented him throughout the state proceedings and apparently refused to raise any claims other than the excessive punishment claim. Every non-frivolous claim need not be urged if “counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); accord Cantone, 759 F.2d at 218. Accordingly, we reject Abdurrahman’s contention that the Strickland v. Washington test should not apply, finding he received more than nominal representation during the state appeal. Jenkins, 821 F.2d at 161. [20] Assuming that counsel’s representation fell below an objective standard of reasonableness for failure to raise in the appellate division the issue of probable cause for seizure of the gun, Abdurrahman fails to demonstrate any reasonable probability that the outcome of his appeal would have been different. Officer Wilson was given an accurate description by Pellot, who two months earlier had witnessed a shooting involving Abdurrahman. He also learned from Pellot that Abdurrahman usually carried a gun. When Wilson first saw Abdurrahman he noticed a bulge in his pocket. As Wilson approached Abdurrahman
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and identified himself, he observed Abdurrahman move his hands frantically through his pockets. Based on the information received from Pellot and Wilson’s own observations, the “stop and frisk” was proper, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Francis, 108 A.D.2d 322, 489 N.Y.S.2d 166 (1st Dep’t 1985), and there is no reasonable probability that the conviction would have been reversed for failure to suppress the gun.
[21] Abdurrahman recognizes that the motion to suppress the weapon was denied after a full and fair hearing and ultimately was affirmed by the appellate division after he raised the issue in pro se supplemental brief. We hold that even if these claims had been raised by an attorney instead of by Abdurrahman in hi pro se supplemental brief, the outcome of the state appeal would not have been affected. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.[22] CONCLUSION
[23] The order of the district court is affirmed.
[1] Although Abdurrahman initially stated that he properly raised a claim based on involuntary waiver of his right to a jury trial, he expressly states that this claim “has now been abandoned.” While a habeas petitioner should ordinarily return to the district court upon abandonment of unexhausted claims, we find “no useful purpose would be served by refusing to hear the appeal until after a remand to the district court for entry of an amended petition excluding those claims.” Rock v. Coombe, 694 F.2d 908, 914 (2d Cir. 1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 345 (1983); see also Grady v. LeFevre, 846 F.2d 862, 865 (2d Cir. 1988).
[2] Although due process claims based upon inadequate representation should normally be raised by a writ of erro coram nobis in state court, People v. Bachert, 69 N.Y.2d 593, 595-96, 509 N.E.2d 318-19, 516 N.Y.S.2d 623, 624 (1987), this route need not be followed where, as here, the record is adequate for review, id. at 599, 509 N.E.2d at 321-22, 516 N.Y.S.2d at 626-27; see People v. Vasquez, 70 N.Y.2d 1, 509 N.E.2d 934, 516 N.Y.S.2d 921 (1987) (per curiam). The supplemental brief set forth Abdurrahman’s objection to the perfunctory nature of counsel’s brief which, in fact, was the basis of Abdurrahman’s claim that he was denied assistance of effective appellate counsel and was one of several claims raised directly attacking his conviction.