McEathron v. Martuscelllo

Filing 9

DECISION AND ORDER denying request for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Darren McEathron.). Signed by Hon. Michael A. Telesca on 5/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARREN McEATHRON,
DECISION AND ORDER
No. 1:14-cv-00218(MAT)

Petitioner,
-vsDANIEL MARTUSCELLO, Superintendent,
Respondent.

INTRODUCTION
Proceeding pro se, Darren McEathron (“Petitioner”) filed the
instant petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, alleging that he is detained in Respondent’s custody in
violation of his federal constitutional rights. For the reasons
discussed herein, Petitioner’s request for a writ of habeas corpus
is denied, and the petition is dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner

challenges

the

judgment

entered

against

him

on October 20, 2008, in the New York State, Steuben County Court
(Furfure,

J.),

following

a

jury

verdict

convicting

him

of

Kidnapping in the Second Degree (New York Penal Law (“P.L.”)
§ 135.20) and Assault in the Second Degree (P.L. § 120.05(6)).
Briefly, the

proof

at

trial

established the

during

the late

afternoon of August 18, 2007, the 16-year-old victim, “A.R.,”1 was
1

Respondent has referenced the minor victim only by her initials, in
accordance with FED. R. CIV. P. 5.2.

riding her bicycle on Telegraph Road near her home when a green
Jeep SUV with a yellow ladder on the roof passed by her twice. When
she turned down Birdseye Hollow Road, the Jeep passed her again.
A.R. described the area as being was mostly wooded, with no houses.
There was a pond with a picnic area, and a clearing where a camper
was usually parked. As A.R. biked behind the camper, she saw
Petitioner, whom she had never seen, standing behind it. Petitioner
ran after A.R. and struck her on the right side of her face,
causing her to fall off her bicycle and hit her forehead on the
ground.
As A.R. tried to stand up, Petitioner continued to hit her,
grabbing her arm and pulling her toward the Jeep.

A.R. reached

down, picked up a rock, and threw it at him, while screaming for
help. Petitioner let go of her, and A.R. ran around the camper to
get to the road. However, A.R. stumbled and fell into a ditch,
which allowed Petitioner to catch up to her. He grabbed her hair
and began pulling her to the other side of the road, toward the
woods.
A.R. asked Petitioner if he would release her if she did what
he wanted. Petitioner replied her that “Sandra” had to see her, and
when “Sandra” was done he would let her go. A.R. asked him how
“Sandra” knew her and what did “Sandra” want with her. Petitioner
just said that “Sandra” wanted to see her and that “Sandra” was
waiting for her. Petitioner forced A.R. to lie face down on the

-2-

ground, and indicated that “Sandra” was in the woods. Petitioner
called out for “Sandra” and told A.R. that she was coming. A.R.,
however, did not hear anyone. Petitioner put one foot on A.R.’s
back and told her that he had a knife, that he was holding it to
the back of her neck, and that he would kill her if she did not
cooperate. A.R. did not see a knife, but she felt something pressed
against her, and assumed it was the knife he referenced. Petitioner
told A.R. to stay on the ground while he went to get “Sandra,”
warning her that he had a gun in the Jeep. If A.R. was not there
when he returned, Petitioner threatened, he would find her and kill
her. Petitioner then walked out of the woods.
After about 30 seconds, A.R. heard the sound of a car driving
by. She got up and ran deeper into the woods, losing a shoe in the
process. She ran to a road where she encountered a husband and wife
walking together. A.R. told them about the attack, and the husband
called 911.
During

the

police

investigation

into

the

incident,

Petitioner’s fingerprint was matched to a latent fingerprint found
on a knife recovered at the crime scene.2
Petitioner presented an alibi defense through his parents,
James and Carol McEathron. Carol and James McEathron, testified on
behalf of the defense. On August 11, 2007, Petitioner, along with

2

Additional facts regarding Petitioner’s crimes will be discussed in further
detail below as necessary to the resolution of the petition.

-3-

his wife, Barbara, and their son, moved into the James’ and Carol’s
home, at 12 Robie Street in the Village of Bath. Carol recalled
that on August 18, 2007, she watched television with her grandson
in the morning. Just before noon, Petitioner went out with his wife
and son. Carol also went out; she drove James to his office and
went grocery shopping. When Carol returned home before 2:00 p.m.,
she saw that Petitioner and his family were home eating lunch. At
about 2:30 p.m., Carol saw Petitioner go outside; he came back into
the house at about 3:30 or 3:40 p.m. Petitioner and his wife
planned to go out to dinner and a movie, while Carol watched her
grandson. Petitioner showered to get ready for the evening. As he
showered, there was a commotion. Petitioner told Carol that he
started to fall and put his hand down to catch himself and hurt his
hand. Carol left the house at about 4:20 or 4:30 p.m. to pick up
James at his office. They returned home about 4:30 or 4:40 p.m.
Petitioner was home with his wife and son when Carol and James
arrived.

Petitioner

and

his

wife

left

for

dinner

at

about

6:00 p.m. Petitioner did not testify.
The jury returned a verdict finding Petitioner guilty of both
counts charged in the indictment. He was sentenced to an aggregate
determinate
post-release

term

of

18

years’

supervision.

imprisonment

Petitioner’s

and

direct

5

years

appeal

of
was

unsuccessful. People v. McEathron, 86 A.D.3d 915 (4th Dep’t 2011),
lv. denied, 19 N.Y.3d 975 (2012). Likewise, Petitioner’s collateral

-4-

motion to vacate the judgment and application for a writ of error
coram nobis were denied.
In

his

timely

petition,

Petitioner

raises

the

following

grounds for habeas relief: (1) trial counsel was ineffective
because he (a) failed to impeach victim with her written statement
in order to establish the merger doctrine; (b) failed to request a
jury instruction on the merger doctrine; (c) failed to file a
motion to suppress Petitioner’s statements to the police and to
suppress identification evidence; (d) failed to challenge the grand
jury proceeding; (e) stipulated to certain evidence; and (f) failed
to cross-examine Investigator Albright; and (2) appellate counsel
was ineffective because he failed to argue that trial counsel was
ineffective for (a) failing to impeach the victim’s testimony and
(b) failing to seek a jury instruction on the merger doctrine.
Respondent answered the petition and argued that Petitioner’s
ineffective assistance of trial counsel claims are unexhausted but
must be deemed exhausted and procedurally defaulted. In addition,
Respondent

contends

that

the

ineffective

assistance

of

trial

counsel claim based on the failure to impeach the victim is also
procedurally barred pursuant to the adequate and independent state
ground doctrine. Finally, Respondent argues, none of Petitioner’s
habeas claims have merit. Petitioner filed a traverse, challenging
some of Respondent’s procedural default arguments and disputing
some of Respondent’s characterizations of the proof at trial.

-5-

For the reasons discussed below, the Court finds that none of
Petitioner’s

claims

warrant

habeas

relief.

Accordingly,

the

petition must be dismissed.
DISCUSSION
I.

Ineffective Assistance of Trial Counsel
A.
In

Legal Standard
order

to

establish

that

he

received

the

ineffective

assistance of trial counsel, a defendant must show both that his
attorney provided deficient representation and that he suffered
prejudice as a result of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The deficient performance
prong

of

Strickland

requires

a

showing

that

“counsel’s

representation fell below an objective standard of reasonableness,”
such that counsel’s conduct “so undermined the proper functioning
of the adversarial process” that the trial “cannot be relied on as
having produced a just result.” Id. at 686, 688. To fulfill the
prejudice

prong,

the

defendant

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. Strickland characterized a “reasonable probability” as
being “a probability sufficient to undermine confidence in the
outcome” of the defendant’s trial Id.

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B.

Trial Counsel’s Alleged Errors
1.

Failure to Attempt
Written Statement

to

Impeach

Victim

with

Her

Petitioner contends that trial counsel was ineffective in
failing to use the victim’s written statement to the police to
impeach her on cross-examination. According to Petitioner, this
statement demonstrated that the attack on the victim was primarily
an assault, consisting of punching her and dragging her by her
hair, and the restraint on her liberty was merely incidental to or
for the purpose of committing the assault. Therefore, Petitioner
reasons, the merger doctrine would have applied and the kidnapping
charge would have required dismissal. Therefore, Petitioner argues,
the merger doctrine was applicable to the case, and should have
resulted in the dismissal of the second-degree kidnapping charge.
One may not be guilty of kidnapping arising from restraint
necessarily incidental to the commission of another crime. People
v. Cassidy, 40 N.Y.2d 763 (1976). The judicially created merger
doctrine was “intended to ameliorate the harsh sanctions imposed on
those essentially guilty only of some less serious crime but whose
underlying

actions

nevertheless

fall

literally

within

the

provisions of the kidnapping statute.” People v. Morales, 148
A.D.2d 325, 326 (1st Dep’t 1989) (citing People v. Pellot, 105
A.D.2d 223, 225-26 (2d Dep’t 1984)).
Here, the merger doctrine was inapplicable, as the Appellate
Division

determined

on

direct

appeal

-7-

in

connection

with

its

rejection of Petitioner’s claim that the trial court erred in
denying his motion for a trial order of dismissal with respect to
the kidnapping charge on the ground that it violated the merger
doctrine. In the present case, as the Appellate Division found,
“‘“[t]he [abduction] was not a minimal intrusion necessary and
integral to another crime, nor was it simultaneous and inseparable
from another crime. It was a crime in itself[.]”’” People v.
McEathron, 86 A.D.3d at 916 (quotations omitted; brackets in
original). The only reasonable view of the trial evidence, as the
Appellate Division explained, was that the kidnapping was not a
part

of

the

assault.

Rather,

the

evidence

demonstrates

that

[Petitioner] restrained and began to transport the victim for
undisclosed purposes and that the assault was incidental to the
kidnapping.” Id.
Here, A.R.’s statement was substantially consistent with her
trial testimony,

and

thus

would

have

added

nothing

to trial

counsel’s motion to dismiss based on the merger doctrine. If
anything, the consistency of the victim’s pre-trial statement with
her trial testimony would have only strengthened the veracity of
her narrative in the jurors’ minds. In other words, trial counsel’s
decision not to rely on the victim’s statement as a grounds for
impeachment avoided potential prejudice to Petitioner and thus was
a reasonable strategic decision.

-8-

2.

Failure to Request a Jury Instruction on the Merger
Doctrine

Petitioner asserts trial counsel erred in failing to request
an instruction to the jury on the merger doctrine. “[T]he merger
doctrine was created to avoid prosecutions for kidnapping where the
conduct underlying the charge constituted an inseparable part of
another crime [.]” People v. Smith, 47 N.Y.2d 83, 87, 390 N.E.2d
291, 293 (1979) (citation omitted). Whether the merger doctrine
should apply to a particular case is a legal question for the
court, not a factual question for the jury. See, e.g., Smith, 47
N.Y.2d at 87–88 (“Under the facts of the present case, it is clear
that no merger could be deemed to have occurred. The robbery was
fully consummated before the victim was forced at gunpoint to
embark on the hour-long drive. . . . Since the criminal conduct at
the root of the two crimes was different, the merger doctrine, even
if available, could have no application.”). This is underscored by
the

numerous

decisions

from

the

New

York

Court

of

Appeals3

3

See, e.g., People v. Cain, 76 N.Y.2d 119, 127, 556 N.E.2d 141, 145 (1990)
(“The described scenario proved beyond a reasonable doubt that the robbery and
kidnapping were factually separable and clearly constituted a ‘change[ ] in
purpose and direction’ from the original robbery sufficient to remove the
kidnapping from the Levy–Lombardi doctrine of merger[.]”); People v. Riley, 70
N.Y.2d 523, 532, 517 N.E.2d 520, 525 (1987) (“While the restraint and asportation
which occurred while defendant and his cohorts were trying to force Malik to turn
over money may have merged with the robbery (People v. Lombardi, 20 N.Y.2d 266,
282 N.Y.S.2d 519, 229 N.E.2d 206 [(1967)]; People v. Levy, 15 N.Y.2d 159, 256
N.Y.S.2d 793, 204 N.E.2d 842 [(1965)]), the defendant’s additional activity of
placing Malik in the trunk and driving around for approximately three hours
continued well beyond the robbery and constituted the independent crime of
kidnapping (People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45, 358 N.E.2d 870
([1976)]; People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688
[(1969)]).”)

-9-

considering whether the factual scenarios underlying defendants’
convictions for kidnapping fell within or without the merger
doctrine. The New York Court of Appeals “is a certiorari court[.]”
Lampon v. Lavalley, No. 10 CIV 2591 BMC, 2011 WL 684623, at *9
(E.D.N.Y. Feb. 16, 2011), aff’d, 504 F. App’x 1 (2d Cir. 2012).
Subject to very limited exceptions not applicable here, it has the
authority to consider only “‘questions of law[.]’” People v. Gray,
86 N.Y.2d 10, 20 (1995) (quoting People v. Belge, 41 N.Y.2d 60, 62
(1976) (“Our court’s jurisdiction, however, with exceptions not
material here, is limited to review of questions of law[.]”) (per
curiam) (citing N.Y. CONST., art. VI, § 3, subd. a)). It is
axiomatic that “[t]he role of the jury in a federal [or state]
criminal case is to decide only the issues of fact, taking the law
as given by the court.” Berra v. United States, 351 U.S. 131, 134
(1956) (citing Sparf v. United States, 156 U.S. 51, 102 (1895)).
Thus, if trial counsel had requested a charge on the merger
doctrine in Petitioner’s case, it would have been denied. “Failure
to

make a

meritless

argument

does

not amount

to

ineffective

assistance.” United States v. Arena, 180 F.3d 380, 396 (2d Cir.
1999).
3.

Failure to File a Motion to Suppress

Petitioner faults trial counsel for filing to file a motion to
suppress

his

statements

identification evidence.

to

the

police

and

to

suppress

The Appellate Division rejected this

-10-

claim, finding that Petitioner “failed to show that [such] a . . .
motion,

if

made,

would

have

been

successful[,]”

id.,

and

additionally “failed to ‘demonstrate the absence of strategic or
other legitimate explanations’ for defense counsel’s failure to
make the pretrial motions that he now claims should have been
made[.]” Id. (quotation and citation omitted). First, there is no
basis in the record to conclude that Petitioner’s statements to the
police were coerced or otherwise obtained unlawfully. The record
establishes that Petitioner voluntarily accompanied Investigator
Albright to the police station on August 21, 2007, and willingly
submitted to an interview related to the attack on A.R. At the
conclusion of the interview, Investigator Albright drove Petitioner
to his residence. The absence of Miranda warnings prior to this
interview is of no moment, because Petitioner was not in custody at
the time of the August 21st statement.
With respect to his second interview with the police on
August 23, 2007, the record establishes that Investigator Albright
returned to Petitioner’s residence and asked him to accompany him
to the police station. Once at the station, Investigator Albright
administered the Miranda warnings, whereupon Petitioner waived his
rights and agreed to speak with the investigator. Petitioner cannot
show any reasonable probability that the trial court would have
deemed his statements inadmissible, and therefore a suppression
motion

by

trial

counsel

would

have

-11-

been

denied.

Petitioner

therefore has failed to demonstrate prejudice from trial counsel’s
failure to file a motion to suppress his statements to police.
With regard to trial counsel’s failure to move to suppress
A.R.’s identification, this omission likewise did not prejudice
Petitioner given the other evidence of Petitioner’s culpability,
including the fact that he was driving a vehicle matching the
description of the vehicle driven by A.R.’s attacker—a green Jeep
with a yellow ladder on the roof. Petitioner’s father testified
that he owned a green Jeep which Petitioner had been using for
work. There was a stepladder on the roof, although Petitioner’s
father claimed he had asked Petitioner to remove it the day prior
to the crime. In close proximity to the bicycle that A.R. had been
riding, the police recovered a knife which bore Petitioner’s
fingerprint, providing an additional linkage between Petitioner and
the attack. Even if A.R.’s identification of Petitioner had been
suppressed, which was unlikely given the circumstances under which
she had the opportunity to observe Petitioner, the other evidence
linking Petitioner to the crime was so compelling that there is no
reasonable probability that trial counsel’s omission had an effect
on the outcome of Petitioner’s trial.
4.

Failure to Challenge the Grand Jury Presentment

Petitioner complains that trial counsel did not challenge the
sufficiency

of

the

grand

jury

minutes.

“There

is

no

federally-cognizable ineffective assistance claim concerning advice

-12-

regarding the state grand jury process.” Montalvo v. Annetts,
No. 02 CIV.1056 LAK AJP, 2003 WL 22962504, at *24 (S.D.N.Y. Dec.
17, 2003) (citing Davis v. Mantello, No. 01-2264, 42 F. App’x 488,
491 n. 1, 2002 WL 1032687 at *2 n. 1 (2d Cir. May 22, 2002)
(emphasis added; citing cases), cert. denied, 538 U.S. 986 (2003)).
“Under federal law, any defects connected with a grand jury’s
charging decision are cured by the petit jury’s conviction, because
the trial conviction establishes not only probable cause to indict,
but proof of guilt beyond a reasonable doubt.” Thompson v. Kelly,
No. 97–CV–258H, 1999 WL 166820, at *2 (W.D.N.Y. Feb.4, 1999)
(citing United States v. Mechanik, 475 U.S. 66, 70 (1986)). “Given
that

any

defect

in

the

grand

jury

proceeding

was

cured

by

[P]etitioner’s subsequent conviction, as previously discussed,
‘[i]t necessarily follows as a matter of law that petitioner cannot
establish that any errors made by his trial counsel with respect to
the grand jury proceeding prejudiced him, thereby foreclosing the
possibility of a Sixth Amendment violation.’” Bingham v. Duncan,
No.

01CIV.1371(LTS)(GAY),

2003

WL

21360084,

at

*4

(S.D.N.Y.

June 12, 2003) (quoting Thompson, 1999 WL 166820, at *2 (quotation
and citation omitted in original). Moreover, Petitioner has offered
nothing but speculation that the minutes contained some deficiency
that would have warranted relief, which provides another basis for
finding

that

trial

counsel’s

Petitioner’s defense.

-13-

omission

did

not

prejudice

5.

Erroneous Stipulation to Evidence

During discovery, defense counsel was provided with a “latent
print report,” authored by New York State Police Investigator Lee
Stonebraker, a latent print examiner. According to Investigator
Stonebraker’s analysis, a fingerprint lifted from the knife found
at the crime scene matched one of Petitioner’s fingerprints on his
booking fingerprint card. On the day that Investigator Stonebraker
was scheduled to testify, Petitioner and trial counsel stipulated
that it was Petitioner’s print on the knife and that the knife
would be admitted into evidence without the need for further proof
of chain-of-custody. (T.145-46).
Petitioner now faults defense counsel for this decision. This
claim is fatally undermined by the record which establishes that
defense

counsel

acted

in

consultation

with

Petitioner,

and

Petitioner personally addressed the trial court and gave his assent
to the stipulation. Petitioner cannot establish that counsel was
ineffective when he himself acquiesced in counsel's strategic
decisions. See Curkendall v. Mazzuca,
Dist.

LEXIS

124109,

at

*82

(W.D.N.Y.

05-CV-688,
July

23,

2008

U.S.

2008). It

bears emphasis that this is a habeas corpus case in which “the
petitioner bears the burden of proving his constitutional rights
were violated.” Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir.
1997) (citations omitted). “The record here contains no support for
the claim that [P]etitioner did not acquiesce in the strategic

-14-

judgment

of

0966(ERK),

trial

2001

WL

counsel[,]”
1773731,

at

Nunez
*8

v.

Miller,

No.

(E.D.N.Y. July

12,

00

CIV

2001),

regarding the evidentiary stipulation. Where, as here, the record
indicates

that

Petitioner

knowingly

agreed

to

the

reasonable

strategy pursued by trial counsel, he cannot be heard later to
question that strategy. See United States ex rel. Reid v. Richmond,
295 F.2d 83, 89 (2d Cir. 1961) (“Whatever may have been the reasons
for the course taken by Reid and his counsel, it was a conscious
reasoned choice made by counsel who was experienced in the ways of
the criminal law. As such, it amounted to a forfeiture of any right
to assert constitutional infirmities in the trial as a result of
the admission of the statements. . . . Reid must be bound by what
his lawyers did and his acquiescence in that course by his own
testimony.”) (citations omitted).
6.

Failure to Cross-Examine Police Witness

According to Petitioner, trial counsel was ineffective in
failing

to

cross-examine

Investigator

Albright

during

the

prosecution’s rebuttal case. As part of Petitioner’s alibi, his
father, Mr. McEathron, testified that on Friday, August 17, 2007,
the day before the incident, he recorded the mileage of the green
Jeep Cherokee that Petitioner had been driving to work. (T.174-75).
When Mr. McEathron checked the Jeep’s mileage again ten days later,
on August 27, 2007, he found it was the same as it had been on
August 17, 2007.

(T.176-77).

-15-

On rebuttal, the prosecution recalled Investigator Albright, who
testified that during his interview with Petitioner on August 21,
2007, he indicated that he had driven the Jeep to the Salvation
Army earlier that same day. (T.188-89). Defense counsel did not
cross-examine Investigator Albright. (T.189). Petitioner states
that attached to the People’s Notice pursuant to Criminal Procedure
Law (“C.P.L.”) § 710.30 was the write-up of both of Investigator
Albright’s interviews with Petitioner. Petitioner asserts that the
write-up reveals that on August 21, 2007, Petitioner admitted that
he used his father’s green Jeep Cherokee to drive back and forth to
work but does not indicate that Petitioner had admitted to driving
the Jeep that same day to the Salvation Army.4 Petitioner contends
that defense counsel’s failure to question Investigator Albright on
this point allowed testimony to stand which, Petitioner claims,
“completely undermined the credibility” of Mr. McEathron.5
“Decisions about ‘whether to engage in cross-examination, and
if so to what extent and in what manner, are . . . strategic in

4

Petitioner has not established that the alleged discrepancy amounted to
error under state law. See People v. Coleman, 682 N.Y.S.2d 402, 403 (2d Dep’t
1998) (“To the extent that the CPL 710.30 notice did not include the entire
statement, the remaining part of the statement was made to the same police
officer during the same conversation, in the same location as the statement
identified in the CPL 710.30 notice. Therefore, the defendant was given
sufficient notice of the statement so as to enable him to timely move to suppress
it[.]”) (citations omitted).
5

As an aside, the Court notes that Mr. McEathron’s testimony regarding the
odometer reading being the same on August 17th and August 27th is difficult to
square with Petitioner’s claim that he used the Jeep Cherokee to drive to and
from work on a daily basis.

-16-

nature’ and generally will not support an ineffective assistance
claim.” Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quoting
United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)).
Even

if

trial

counsel’s

decision

not

to

attempt

to

impeach

Investigator Albright with the alleged inconsistencies in the
attachments to the C.P.L. § 710.30 notice, Petitioner has not
established

that

he

suffered

any

prejudice

from

this

error.

Significantly, Petitioner does not identify with any degree of
specificity what the cross-examination should have accomplished. He
asserts merely that trial counsel “could he have possibly done some
‘damage control’ on this front[.]” (See Pet’r App. Br. 39-40, SR
175-76

(Dkt

#4-4,

pp.

5-6

of

108)

(emphasis

supplied).

See Montgomery v. Wood, 727 F. Supp. 2d 171, 187 (W.D.N.Y. 2010)
(finding no ineffective assistance where, although there “does not
seem to have been a potential downside to cross-examining Davis
about the relocation assistance she received,” but “at the same
time, the Court cannot conclude that had counsel elicited that fact
it would have undermined Davis’ credibility to such an extent there
is a reasonable probability the outcome of Montgomery’s trial would
have been different”.
II.

Ineffective Assistance of Appellate Counsel
The two-pronged Strickland standard applies equally to claims

of ineffective assistance of appellate counsel. E.g., Claudio v.
Scully, 982 F.2d 798, 803 (2d Cir.1992) (holding that in order to

-17-

prevail on an ineffective assistance of appellate counsel claim,
appellant must show first that his counsel’s performance was
deficient and second that the deficiency caused actual prejudice to
his defense), cert. denied, 508 U.S. 912 (1993). Petitioner argues
that his appellate counsel was ineffective because he failed to
brief claims that his trial counsel was ineffective for failing to
impeach A.R. with her pre-trial statement to the police, and for
failing to seek a jury instruction on the merger doctrine. For
purposes of establishing the deficient performance prong, it is
insufficient for Petitioner to show “merely that counsel omitted a
nonfrivolous argument, for counsel does not have a duty to advance
every nonfrivolous argument that could be made.” Id. Here, as
discussed

above,

Petitioner

has

failed

to

demonstrate

constitutionally ineffective assistance of the part of his trial
counsel with regard to either of these decisions. Petitioner cannot
show that appellate counsel’s failure to brief meritless claims
asserting trial counsel’s ineffectiveness fell below an objective
standard of reasonableness. Likewise, he cannot demonstrate that
appellate counsel’s omissions had any effect on outcome of his
appeal, since the omitted claims were without merit.
Henderson,

13

F.3d

528,

534

(2d

Cir.

1994)

See Mayo v.

(“To

establish

prejudice in the appellate context, a petitioner must demonstrate
that ‘there was a “reasonable probability”’ that [his] claim would

-18-

have

been

successful

before

the

[state’s

highest

court].”’”)

(quotation omitted; brackets in original).
CONCLUSION
For the foregoing reasons, Darren McEathron’s request for a
writ of habeas corpus is denied, and the petition is dismissed. The
Court declines to grant a certificate of appealability because
there has not been “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The Clerk of Court
is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 30, 2017
Rochester, New York.

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