Richburg v. Hood, CV-91-4003.

• Citation: 794 F. Supp. 75
• Decision Date: 07 July 1992
• Docket Number: No. CV-91-4003.,CV-91-4003.
• Parties: Thornwell RICHBURG, Petitioner, v. David L. HOOD, Superintendent, Otisville Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

794 F. Supp. 75

Thornwell RICHBURG, Petitioner, v. David L. HOOD, Superintendent, Otisville Correctional Facility, Respondent.

No. CV-91-4003.

United States District Court, E.D. New York.

July 7, 1992.

Thornwell Richburg, pro se.

Ann Bordley, Asst. Dist. Atty., Brooklyn, N.Y., for respondent.

MEMORANDUM AND ORDER

GLASSER, District Judge:

On March 4, 1982, the petitioner, Thornwell Richburg, was convicted after a trial by jury in New York State Supreme Court, Kings County, of two counts of attempted murder in the first degree, one count of assault in the first degree, one count of assault in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the fourth degree. The trial court sentenced the petitioner to concurrent terms of imprisonment of fifteen years to life on the attempted murder convictions, four to twelve years on the first-degree assault conviction, two to six years each on the convictions of second-degree assault and of second-degree criminal possession of a weapon, and one year on the conviction of fourth-degree criminal possession of a weapon.

On appeal, counsel for the petitioner (who had not represented the petitioner at trial) argued that the trial court had given an "erroneous and deficient" instruction to the jury on the petitioner's defense of justification. At the conclusion of the brief submitted on behalf of the petitioner, appellate counsel noted that trial counsel had not taken exception to "most of the ... errors" in the justification charge. Appellate Brief at 34. However, appellate counsel — with citation to relevant New York authorities — urged the court to use "its discretionary jurisdiction to reverse in the interest of justice." Id. The Appellate Division, Second Department, affirmed the petitioner's conviction on the grounds that: (1) the failure of trial counsel to take exception to the justification charge rendered the issue "not properly reserved for review"; and (2) "the charge ... adequately conveyed the appropriate law to the jury and did not deprive the defendant of a fair trial." People v. Richburg, 109 A.D.2d 899, 900, 487 N.Y.S.2d 94 (2d Dept.1985). The New York State Court of Appeals denied the application of the petitioner for leave to appeal. People v. Richburg, 65 N.Y.2d 699, 491 N.Y.S.2d 1040, 481 N.E.2d 268 (1985).

On June 5, 1989, the petitioner sought from the New York State Supreme Court, Appellate Division, Second Department, a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. The petitioner argued that: (1) his appellate counsel had raised an issue that was not preserved by trial counsel; (2) appellate counsel had failed to raise a claim of ineffective assistance of trial counsel; and (3) appellate counsel had failed to argue that the petitioner's guilt had not been proven beyond a reasonable doubt. On April 11, 1990, the Appellate Division denied the application of the petitioner. The New York State Court of Appeals dismissed the petitioner's application for leave to appeal the order of the Appellate Division. People v. Richburg, 76 N.Y.2d 741, 558 N.Y.S.2d 903, 557 N.E.2d 1199 (1990).

The petitioner has applied to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He predicates his application on the same three-part claim of ineffective assistance of appellate counsel that he raised in his application for a writ of error coram nobis. That is, he argues here that: (1) his appellate counsel raised an unpreserved issue on appeal; (2) his appellate counsel failed to raise on appeal a claim of ineffective assistance of trial counsel; and (3) his appellate counsel failed to raise a claim that his guilt had not been proven beyond a reasonable doubt. For the reasons set forth below, his petition is denied in its entirety.

A criminal defendant has a right to the effective assistance of counsel on a first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). When a defendant challenges the adequacy of representation by such appellate counsel, a court must review his claim under the standards for review of the performance of trial counsel. Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir.1990). That is, to prevail on a claim of ineffective assistance of appellate counsel, a defendant must demonstrate that his attorney's "representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984). Furthermore, a petitioner who predicates his challenge to the effectiveness of his representation on strategic choices made by that attorney undertakes a particularly formidable task:

The court `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `there are countless ways to provide effective assistance in any given case' and that `even the best criminal defense attorneys would not defend a particular client in the same way.' ... Most important, the attorney's `strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that

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