Decision Date17 May 2001
Parties(2nd Cir. 2001) ANGEL SELLAN,, v. ROBERT KUHLMAN,August Term 2000 Argued:
CourtU.S. Court of Appeals — Second Circuit

Appeal from a judgment of the United States District Court for the Eastern District of New York (Trager, J.), denying appellant's petition for a writ of habeas corpus.


[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Polly N. Passonneau, Esq., New York, N.Y., for Petitioner-Appellant.

Donna Aldea, Assistant District Attorney (Richard A. Brown, District Attorney, Queens County, John M. Castellano, Assistant District Attorney, on the brief), Kew Gardens, N.Y. for Respondent- Appellee.

Before: Walker, Chief Judge, Feinberg and Cabranes, Circuit Judges.

John M. Walker, Jr., Chief Judge

Angel Sellan appeals from a September 27, 1999 judgment of the United States District Court for the Eastern District of New York (David G. Trager, District Judge), denying his petition for a writ of habeas corpus. He argues primarily that he was denied his Sixth Amendment right to effective assistance of counsel when his appellate counsel failed to raise a potentially meritorious issue of New York State law on direct appeal before the New York Appellate Division. Sellan contends that his counsel should have argued on direct appeal that he was entitled to a new trial under People v. Gallagher, 69 N.Y.2d 525 (1987), because the trial court failed to charge the jury that it could not simultaneously convict him of two counts with assertedly inconsistent mental states. We affirm the district court's dismissal of Sellan's habeas petition because we are unable to conclude that the New York Appellate Division unreasonably applied clearly established federal law in rejecting his claim of ineffective assistance of appellate counsel.


This case arises out of a shooting incident that occurred on May 27, 1985, in which John Mullaney, Mario Arce and George Molina were shot on the boardwalk at Rockaway Beach, Queens. Three or four shots were fired. Mullaney and Arce were injured and Molina was killed. Following a jury trial in Queens County Supreme Court, Sellan was convicted of Murder in the Second Degree (so-called "depraved mind" murder), Manslaughter in the First Degree (a lesser included offense of second degree intentional murder, which requires intent to cause serious physical injury resulting in death), two counts of Assault in the First Degree, Reckless Endangerment in the First Degree and Criminal Possession of a Weapon in the Second Degree, pursuant to N.Y. Penal Law §§ 125.25[2], 125.20, 120.10, 120.25, and 265.03, respectively. Rafael Morato, a friend of Sellan, testified at trial that he heard several shots, and then, within minutes of the shooting, saw Sellan on the boardwalk holding a pistol. The police subsequently went to Sellan's home, obtained permission from his aunt to search his bedroom, and found a.22 caliber pistol and particles of sand in a bag. A ballistics expert testified at trial that the fatal shot had been fired from that.22 caliber pistol. Sellan was sentenced principally to an indeterminate incarceration term of twenty-five years to life for his second degree murder conviction, a concurrent term of eight and one-third years to twenty-five years for the first degree manslaughter conviction, and concurrent shorter terms for the other convictions.

On direct appeal, Sellan's appellate counsel raised two arguments: (1) the prosecutor improperly cross-examined him with regard to evidence of Sellan's gang membership, and (2) the prosecutor improperly attempted to refresh the defendant's recollection of a prior bad act. Sellan's appellate counsel, however, did not raise an issue on direct appeal that had been properly preserved at trial:1 whether the trial court erred when it failed to charge murder in the second degree and first degree manslaughter in the alternative because the mental state elements were mutually exclusive.2 The Appellate Division affirmed Sellan's conviction, see People v. Sellan, 533 N.Y.S.2d 109, 143 A.D.2d 690 (App. Div. 2d Dep't 1988), and leave to appeal to the Court of Appeals was denied. See People v. Sellan, 73 N.Y.2d 860 (1988).

On the theory that appellate counsel should have raised this argument, Sellan sought a writ of coram nobis in state court on the basis of ineffective assistance of counsel. He argued that the manslaughter charge required the jury to find that he intended to cause serious physical injury to his victim, while the murder charge required a finding that he acted with an extreme state of recklessness in causing that same victim's death. Sellan cited a then-recent New York Court of Appeals decision, People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174 (1987), for this proposition. In Gallagher, the Court of Appeals vacated a defendant's conviction and ordered a new trial, holding that he could not be convicted of both intentional murder and reckless manslaughter for the same act "because guilt of one necessarily negates guilt of the other." Gallagher, 69 N.Y.2d at 529. The Second Department of the Appellate Division summarily denied Sellan's application in a Decision and Order stating:

Motion by defendant for a writ of coram nobis to vacate an order of this court dated October 3, 1988, which affirmed a judgment of the Supreme Court, Queens County, rendered March 16, 1987, on ground of ineffective assistance of appellate counsel. (People v. Bachert, 69 N.Y.2d 593.)

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.

People v. Sellan, No. 9152 (N.Y. App. Div. 2d Dep't Jan. 25, 1990). Leave to appeal to the Court of Appeals was denied. See People v. Sellan, 75 N.Y.2d 924 (1990), and a second application for leave to appeal was denied on the basis that the Second Department's order denying his writ of coram nobis was not appealable. See People v. Sellan, 76 N.Y.2d 944 (1990). On March 26, 1993, the Queens County Supreme Court denied, as both procedurally barred and meritless, Sellan's pro se motion to vacate the judgment under N.Y. C.P.L. § 440.10, and upon reargument adhered to its decision.

Subsequently, Sellan raised his ineffective assistance of counsel claim in a habeas corpus petition in federal district court. His petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which mandates deference to state court decisions. See 28 U.S.C. § 2254(d). On September 27, 1999, the district court denied Sellan's petition for a writ of habeas corpus. The district court held that appellate counsel's failure to raise a potentially meritorious state law claim on direct appeal did not give rise to a violation of "clearly established Federal law" within the meaning of 28 U.S.C. § 2254(d)(1). Having denied Sellan's petition on this ground, the district court concluded that it was not required to decide whether the Appellate Division's decision constituted an "adjudication on the merits" warranting application of AEDPA's higher level of deference to state court decisions, or whether the pre-AEDPA de novo standard of review applied.

Petitioner now appeals. We review de novo a district court judgment denying habeas corpus. See Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir. 1996).


This appeal requires us to construe and apply § 2254(d)(1), enacted in 1996 as part of AEDPA, which establishes standards for federal habeas review of state court decisions. The statute provides, in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....

28 U.S.C. § 2254(d)(1).

Several threshold questions regarding the proper interpretation and application of § 2254(d)(1) must be addressed at the outset. First, we must decide whether Sellan's claim for ineffective assistance of counsel meets § 2254(d)(1)'s requirement that the claim be based upon "clearly established Federal law" as determined by the Supreme Court. If not, we need go no further. If, however, petitioner's claim is based on "clearly established" law, then we must proceed to answer the question we left open in Washington v. Schriver, 255 F.3d 45, (2d Cir. 2001): what level of deference does this court owe to a state court's summary decision denying a petitioner's federal claim in the absence of any reference to, or discussion of, federal law.

I. Clearly Established Federal Law

As noted, we must determine as an initial matter whether Sellan's ineffective assistance of counsel claim was based on federal law "clearly established" by the Supreme Court. The district court held that such was not the case because the particular theory of ineffective assistance of counsel pressed by Sellan -- namely, that his attorney failed to raise an arguably meritorious state law argument on direct appeal -- has not been adopted by the Supreme Court as a basis for making out a successful Sixth Amendment ineffective assistance claim. See Sellan v. Kuhlman, 63 F. Supp. 2d 262, 272 (E.D.N.Y. 1999) ("[A]t the time the alleged errors were made by state courts, there was no `clearly established' federal rule that counsel could be found ineffective under the United States Constitution for failing to raise an issue of state law on direct appeal."). We disagree.

In some circumstances, the question of precisely what law must be "clearly established" for AEDPA purposes may prove to be a complex...

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