WDNY: Appellate counsel ineffective for failing to raise strongest issue on appeal

Mullins v Bennett, 00-CV-0136


In a decision filed today by Magistrate Judge Bianchini, the U.S. District Court for the Western District of New York granted petitioner's writ of habeus corpus based on ineffective assistance of appellate counsel, finding that "counsel overlooked the strongest state law argument that his client had in favor of barely colorable claims" and the Fourth Department engaged in an "unreasonable application" of the federal test for ineffective assistance of counsel in resolving "the deficient-performance aspect of Mullins' ineffective assistance of counsel claim against him." (Mullins v. Bennett, 00-CV-0136.)

On direct appeal at the Fourth Department, Mr. Mullin's appellate counsel raised three issues: first, that the trial court should have granted trial counsel's motion for severance; second, that the evidence was legally insufficient; and third, that the prosecutor's misconduct deprived Mr. Mullin of a fair trial. The Fourth Department affirmed Mr. Mullin's conviction, and the Court of Appeals denied leave. Mullins subsequently filed a writ of error corim nobis on the ground that his appellate counsel was ineffective for failing to raise a properly preserved Batson argument (the trial prosecutor struck the only black member of the jury venire and offered a flimsy race-neutral explanation). The Fourth Department denied the writ, and Mullins petitioned the Western District Court for a writ of habeus corpus.

The WDNY noted the standard to be applied when an ineffective assistance of appellate counsel claim is grounded on appellate counsel's failure to raise a specific issue on appeal: "Whether the neglected appellate issue is based on federal or state law, the burden rests on [the defendant] to show 'that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" (Id.) The WDNY had no problem concluding that the issues raised by Mr. Mullin's appellate counsel on direct appeal were weak--the Court held it was "pointless for appellate counsel to have bothered raising the severance argument. The insufficiency-of-evidence and prosecutorial misconduct arguments were somewhat stronger than the severance argument, but that is not saying much." (Id.)

The part of the WDNY's decision that is interesting to me is the next part of the analysis, i.e. the Court's finding that Mr. Mullin's Batson claim would have had a "reasonable probability" of success before the Fourth Department and therefore Mr. Mullin was prejudiced by his appellate attorneys failure to raise the Batson issue on direct appeal. Don't get me wrong--I think Mr. Mullen's Batson argument is a strong one--the trial prosecutor struck the only black member of the jury venire because (and I'm paraphrasing) the prosector did not like social workers (and the venire member worked as a "food service supervisor . . . at a facility that provided mental health services") and the juror seemed "skittish". (Id.) However, the overall success rate for criminal defendants on direct appeal to the Fourth Department is dismal, clocking in at about 5% for substantive reversals (i.e. not technical errors or sentence reductions). So I think it is a touch optimistic to say that a criminal appellant raising a strong Batson argument (or any other argument) before the Fourth Department has a "reasonable probability" of success. Still and all, a good and welcome result for Mr. Mullins.