470 F.3d 515 (2nd Cir. 2006), 05-1122, Mosby v. Senkowski

Docket Nº:Docket No. 05-1122-pr.
Citation:470 F.3d 515
Party Name:Marcus MOSBY, Petitioner-Appellant, v. Daniel SENKOWSKI, Respondent-Appellee.
Case Date:November 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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470 F.3d 515 (2nd Cir. 2006)

Marcus MOSBY, Petitioner-Appellant,


Daniel SENKOWSKI, Respondent-Appellee.

Docket No. 05-1122-pr.

United States Court of Appeals, Second Circuit.

November 30, 2006

Argued:April 19, 2006

Appeal from a final judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Chief District Judge), denying petitioner a writ of habeas corpus on the ground of the ineffectiveness of his state appellate counsel. See 28 U.S.C § 2254.

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Georgia J. Hinde, New York, NY, for Petitioner-Appellant.

Loretta S. Courtney (Michael C. Green, District Attorney of Monroe County, on the brief), Assistant District Attorney of Monroe County, Rochester, NY, for Respondent-Appellee.

Before: JACOBS, Chief Judge, B.D. PARKER, Circuit Judge, and OBERDORFER, District Judge. [*]

Barrington D. Parker, JR., Circuit Judge:

Marcus Mosby appeals from a judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Chief Judge) denying his petition for a writ of habeas corpus. Mosby contends that he was denied his Sixth Amendment right to effective assistance of appellate counsel when, on direct appeal, his counsel failed to raise a suppression issue arising under the Fourth Amendment and the New York State Constitution. The state trial court ruled that Mosby lacked standing to challenge his warrantless arrest because he did not live in the house where he was arrested, and denied his motion to suppress a confession and photo identification that ultimately led to his murder conviction. Because the underlying suppression issue, when considered in accordance with the attenuation analysis of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), lacks merit, we conclude that appellate counsel's omission did not prejudice Mosby. Consequently, we affirm.


On April 15, 1994, witnesses observed an assailant known only by the nickname "Florida" shoot and kill two men on Bloomingdale Street, in Rochester, New York. Five days later, Rochester police officers conducted an unrelated "buy and bust" operation, in which Mosby sold a $20 bag of crack cocaine to a police informant, with an undercover officer present. The drug deal took place through the window of a house at 46 Costar Street, two miles from the site of the homicides. Four uniformed police officers arrived shortly thereafter, without a warrant for Mosby's arrest. They knocked at the front door of the house, which was answered by Mosby's ten-year-old son. The child informed them that his father was upstairs, sleeping. After four or five attempts to coax him downstairs, the uniformed officers entered the house and took Mosby into custody. The undercover officer then identified Mosby as the person he had observed selling cocaine earlier, and Mosby was placed under arrest.

While Mosby was waiting in a police car outside the house, a passing neighbor, Lanna Pulley, noticed him in the car and asked an officer w hat was happening with "Florida." According to the arresting officers' report, Ms. Pulley told police that Mosby had been living at 46 Costar for the past two months.

On hearing the nickname "Florida" attributed to Mosby, the arresting officers contacted investigators working on the Bloomingdale Street homicides. Later that evening, the police presented a photo array including Mosby's photo to four different witnesses to the homicides. All four identified Mosby as the shooter. After being read Miranda warnings, Mosby declined an attorney, and the police questioned him about the homicides. Mosby

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ultimately confessed, and the police prepared a written statement which he reviewed and signed after midnight, on the same night as his arrest. He was subsequently indicted, tried, and convicted on homicide charges.1

Prior to trial, Mosby moved to suppress the confession and photo identifications on the ground that his warrantless home arrest violated the Fourth Amendment. Mosby claimed that he had been living at 46 Costar Street for at least two months. The trial court held that Mosby did not have standing to assert a Fourth Amendment claim since he was merely a "casual visitor" with a "transient presence" at 46 Costar and thus had no "legitimate expectation of privacy" there. Accordingly, the court denied Mosby's suppression motion.

At trial, Mosby testified that he shot the two individuals in self-defense. The four eyewitnesses testified, identifying Mosby as the gunman. His confession was admitted during the state's rebuttal case. The jury convicted Mosby on two counts of murder in the second degree, and the court sentenced him to consecutive terms of twenty-five years to life.

On direct appeal, Mosby's attorney did not challenge the adverse suppression ruling. The only issue he raised was that, during cross-examination, the prosecutor improperly impeached Mosby by asking him about details in his trial testimony that did not appear in the statement he had given to the police. The Appellate Division rejected this argument, and the New York Court of Appeals denied Mosby leave to appeal. People v. Mosby, 239 A.D.2d 938, 659 N.Y.S.2d 610, 610-11 (1997); 90 N.Y.2d 942, 664 N.Y.S.2d 760, 687 N.E.2d 657 (1997).

Mosby then filed an application for a writ of coram nobis seeking to vacate his conviction on the ground of ineffective assistance of appellate counsel for failure to raise several issues, including the trial court's suppression ruling. The Appellate Division summarily denied the application. See People v. Mosby, 676 N.Y.S.2d 390 (1998). Subsequently, Mosby filed a habeas corpus petition asserting the same claim as his coram nobis petition, which the district court denied. We granted a certificate of appealability limited to the issue of whether failure to raise the suppression issue on direct appeal constituted ineffective assistance of appellate counsel.


I. Standard of Review

We review a district court's decision to deny a petition for a writ of habeas corpus de novo, and its factual conclusions for clear error. See Gersten v. Senkowski, 426 F.3d 588, 606 (2d Cir. 2005); Doe v. Menefee, 391 F.3d 147, 163-64 (2d Cir. 2004). Mosby's petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").2

We have held that in light of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

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"a Sixth Amendment ineffective assistance of counsel claim necessarily invokes federal law that has been 'clearly established' by the Supreme Court within the meaning of AEDPA." Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001); see Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (recognizing the Strickland test as "clearly established" law for purposes of AEDPA). Although the Appellate Division's summary rejection of Mosby's coram nobis petition did not mention Mosby's federal claim, it nonetheless constituted an adjudication on the merits. See Sellan, 261 F.3d at 309, 312. Thus, as the district court recognized, we must apply AEDPA's "highly deferential standard" in reviewing Mosby's ineffective assistance of counsel claim. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003) (acknowledging that "the heavy burden of showing ineffective assistance" is "enhanced by the hurdle posed by the highly deferential review accorded state court adjudications under [AEDPA]" (citations omitted)).

To establish ineffective assistance under Strickland, Mosby must show (1) that his appellate counsel's "representation fell below an objective standard of reasonableness" and (2) that he was prejudiced by the deficient representation. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. To demonstrate prejudice, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Because Mosby's ineffective assistance claim is based on counsel's failure to raise Fourth Amendment issues, he must also show "that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict...

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