Aparicio v. ArtuzAparicio v. Artuz
DONNA R. NEWMAN, New York, NY, for Petitioner-Appellant-Cross-Appellee.
PHYLLIS MINTZ, District Attorney‘s Office Kings County, Brooklyn, NY, (Leonard Joblove, on the brief) for Respondent-Appellee-Cross-Appellant.
Before: McLAUGHLIN, CABRANES, Circuit Judges, and COTE, District Judge.*
McLAUGHLIN, Circuit Judge:
BACKGROUND
Immediately thereafter, near the same subway station, car service driver David Ramos was warming up his vehicle when he was held up at gunpoint and his car was hijacked. Ramos rushed to the car service‘s office to tell his dispatcher and both men chased the carjacker in the dispatcher‘s vehicle. They located the carjacker just a few blocks away, marooned in New York City morning traffic. When they finally pulled alongside the stolen vehicle, the carjacker pointed a gun at them, jumped out of the car and ran toward a nearby house. About two hours later, the police found Petitioner David Aparicio cowering under a stairway in the backyard of a house a few blocks away. No gun was recovered.
At the request of the police, Ramos then came to the scene and identified a handcuffed Aparicio as the person who stole his car. Later that day, Medina and another witness picked Aparicio out of a lineup, identifying him as the perpetrator of the subway robbery and the shooting.
I. The State Proceeding
Aparicio was charged with attempted murder in the first degree and assault in the first degree in connection with the shooting of the police officer; attempted robbery in the first degree of the subway passenger; robbery in the first degree (based on the car theft); and criminal possession of a weapon in the second or, alternatively, third degree.
At his trial, Aparicio did not call any witnesses or present other evidence on his behalf. Rather, he asserted a misidentification defense, arguing that the police had arrested and the witnesses had identified the wrong person.
In its charge, the court instructed:
Before a person may be convicted of a crime by a verdict of a jury the evidence must establish to the jury‘s satisfaction, beyond a reasonable doubt, each and every element of the crime and that the defendant on trial is the person who committed the crime.
The court then charged the jury on the elements of each of the offenses, repeatedly reminding the jury that the State was required to prove that the defendant was the person who committed each element. At the conclusion of the jury charge, Aparicio‘s counsel did not object to any aspect of the charge or request any further instructions.
Aparicio was convicted of robbery in the first degree in violation of
On direct appeal to the Appellate Division, Aparicio raised a number of issues, including a contention that, in a trial where identification was the core issue, the court‘s failure to deliver a thorough eyewitness identification charge deprived him of a fair trial. The Appellate Division affirmed the convictions, ruling that Petitioner‘s claim concerning the identification instruction was unpreserved for appellate review, and, even if it were preserved, was meritless because the jury charge was adequate in this respect. People v. Aparicio, 208 A.D.2d 638, 618 N.Y.S.2d 246 (2d Dep‘t 1994). Petitioner‘s petition to appeal to the New York Court of Appeals was denied in December 1994. People v. Aparicio, 84 N.Y.2d 1009, 622 N.Y.S.2d 920, 647 N.E.2d 126 (1994).
In April 1997, Aparicio filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York (Weinstein, J.), raising the same claims he previously presented to the Appellate Division. In November 1998, Petitioner filed a supplemental habeas brief (this time with the assistance of counsel) claiming that he was denied effective assistance of trial counsel when his lawyer failed to request a specific eyewitness identification charge or object to the trial court‘s failure to deliver one. Petitioner also contended that his appellate counsel was equally ineffective for failing to raise the ineffectiveness of his trial counsel.
Because the ineffective assistance claims had never been raised in state court, the district court stayed the habeas petition (rather than dismissing it under Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), for containing unexhausted claims) pending state court review of those claims. In May 1999, Petitioner returned to state court, filing a pro se motion for a writ of error coram nobis from the Appellate Division. There he raised for the first time in state court the ineffectiveness of both his trial and appellate counsel with regard to the identification instruction.1 The following September, Petitioner amended his coram nobis petition to add a claim that his appellate counsel was ineffective for failing to raise a claim that his convictions for first-degree robbery and second-degree criminal weapons possession violated the Double Jeopardy Clause of the Fifth Amendment.2 His argument was that his indictment was multiplicitous because, when both convictions arose out of the same nucleus of facts, the weapons possession charge was a lesser included offense of the robbery count. The Appellate Division denied coram nobis relief that October, stating only, “appellant has failed to establish that he was denied the effective assistance of appellate counsel.” People v. Aparicio, 265 A.D.2d 335, 696 N.Y.S.2d 697 (2d Dep‘t 1999). Notably, the Appellate Division did not mention Petitioner‘s claim of ineffective assistance of trial counsel with regard to the eyewitness identification charge.
Having concluded that he had now exhausted his state remedies, Aparicio resuscitated his federal habeas petition in the district court. The amended habeas petition yoked together four claims: (1) ineffective assistance of trial counsel for failing to request the eyewitness identification instruction; (2) ineffective assistance of appellate counsel for failing to raise claim (1) on direct appeal; (3) ineffective assistance of trial counsel for failing to object to the indictment on double jeopardy grounds; and (4) ineffective assistance of appellate counsel for failing to raise claim (3) on direct appeal.
The district court granted the petition on the double jeopardy claim, finding that criminal weapons possession in the second degree was a lesser included offense of robbery in the first degree and that the jury‘s verdict left open the possibility that both offenses had their genesis in the same factual nucleus--the robbery of the car service driver. Id. at *3-5. Conceding that the requirement that the weapon be both loaded and operable was an element of the weapon possession offense but was not an element of the robbery offense, the district court, nevertheless, found a violation of the Double Jeopardy Clause. Under New York law, it is an affirmative defense to first degree robbery that the firearm was not loaded or operable. Id. at *3;
As to the eyewitness identification instruction, the district court denied the habeas petition, concluding that there was no error in the jury charge, and thus trial counsel could not be ineffective for failing to raise so meritless an issue. A fortiori, appellate counsel was not ineffective for failing to raise an argument that trial counsel was ineffective. Therefore, the district court vacated only the criminal weapons possession conviction (and its sentence of 8 years to life imprisonment), leaving the robbery conviction (and its sentence of 25 years to life imprisonment) intact.
The district court granted a certificate of appealability on the partial denial of Aparicio‘s petition solely on the identification instruction issue. Petitioner now appeals pursuant to that certification. The State cross-appeals from the district court‘s partial grant of the petition on the double jeopardy ineffective assistance claims.4
DISCUSSION
We review a district court‘s denial of a habeas petition de novo. E.g., Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
I. Timeliness; Applicability of AEDPA
The enactment of Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Pub. L. No. 104-132, created a tumultuous sea change in federal habeas review, especially affecting the petitions of state prisoners. Williams v. Taylor, 529 U.S. 362, 402-10, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) (O‘Connor, J., writing for the majority with respect to part II); Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). Nevertheless, the parties--both below and in this Court--have proceeded with Olympian indifference to this five-year old statute.
In an unrelated case, this Court sensed the palpable injustice of AEDPA‘s suddenly slamming the door on countless unfiled habeas claims. We therefore created a one-year grace period, running from AEDPA‘s effective date. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Filing his petition on April 24, 1997, the first anniversary of AEDPA, Aparicio eked into the grace period. Although his petition is thus timely, he remains subject to the arcane jurisprudence of habeas corpus and AEDPA, particularly to that statute‘s more deferential standard of review of state court determinations of prisoners’ constitutional claims. Lindh v. Murphy, 521 U.S. 320, 327-29, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997) (finding that AEDPA‘s amendments to 2253, 2254 & 2255 applied to cases filed after the effective date); Loliscio v. Goord, 263 F.3d 178, 183-85 (2d Cir. Aug. 30, 2001) (applying AEDPA standards to 2254 petition timely filed after AEDPA‘s effective date, but within Ross v. Artuz grace period).
II. Procedural Default of Petitioner‘s Trial Counsel Claims
We turn to consider one of the State‘s principal contentions: that both of Petitioner‘s claims of ineffective assistance of trial counsel are procedurally defaulted and thus barred from federal habeas review.
If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner “unless it appears that the applicant has exhausted the remedies available in the courts of the State; or that there is either an absence of available State corrective process; or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”
When a claim has never been presented to a state court, a federal court may theoretically find that there is an “absence of available State corrective process” under 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile. In such a case the habeas court theoretically has the power to deem the claim exhausted. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). This apparent salve, however, proves to be cold comfort to most petitioners because it has been held that when “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,” federal habeas courts also must deem the claims procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.1, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).
This procedural default doctrine and its attendant “cause and prejudice” standard are grounded in our concerns for federalism and comity between the state and federal sovereigns. Id. at 730. It ensures that federal courts respect the “States’ interest in correcting their own mistakes.” Id. at 732. The doctrine applies whether the default occurred at trial, on appeal or on state collateral review. Murray v. Carrier, 477 U.S. 478, 490-92, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).
Upon examination of each of Petitioner‘s ineffective assistance of trial counsel claims, we conclude that although each claim is exhausted, each was also procedurally defaulted by Aparicio‘s failure to raise the issue on direct appeal in the state court. And because Petitioner cannot present a sufficient cause to excuse these procedural defaults, both ineffective assistance of trial counsel claims are barred from federal review.
A. Ineffective Assistance of Trial Counsel--Double Jeopardy
As discussed above, see supra, at 87 & n.2, this claim was never fairly presented to a state court for review. The State argues that this claim is unexhausted and, therefore, Aparicio‘s petition should be dismissed in its entirety for being a “mixed” petition containing both exhausted and unexhausted claims. Rose, 455 U.S. at 510.5 We believe it is doubtful, though, that any avenue remains open to Aparicio in state court, and thus that the “absence of available State corrective process” renders this claim exhausted.
Petitioner was entitled to one (and only one) appeal to the Appellate Division and one request for leave to appeal to the Court of Appeals, both of which he pursued long ago.
Of course, even though the claim is exhausted, it is still procedurally defaulted under Coleman. 501 U.S. at 735. That procedural default can only be cured by a showing of cause for the default plus prejudice, or a showing of actual innocence. Id. at 748-49. And, of course, just as in our imagined state court proceeding, the only cause Aparicio can offer for the procedural default would be the ineffective assistance of his appellate counsel.
A defense counsel‘s ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when the counsel‘s ineptitude rises to the level of a violation of a defendant‘s Sixth Amendment right to counsel. Edwards v. Carpenter, 529 U.S. 446, 451, 146 L. Ed. 2d 518, 120 S. Ct. 1587 (2000); Murray, 477 U.S. at 488-89. “In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim.” Edwards, 529 U.S. at 451.
Our holding later in this opinion that Petitioner‘s double jeopardy claim is without merit, see infra, at 98 & n.10, in conjunction with the Supreme Court‘s holdings in Carrier and Edwards, compels us to conclude that Petitioner has not presented an adequate cause for his procedural default here. Thus, we are--and the district court was--precluded from reaching the merits of this claim.
B. Ineffective Assistance of Trial Counsel--Identification Charge
In stark contrast to the double jeopardy claim, Petitioner did raise, in his coram nobis petition to the Appellate Division, the ineffectiveness of his trial counsel for failing to request an eyewitness identification instruction. See supra, at 86 & n.1. However, the Appellate Division did not explicitly address this claim, writing only, “appellant has failed to establish that he was denied effective assistance of appellate counsel.” Aparicio, 696 N.Y.S.2d at 697. Although the trial counsel claim was not explicitly addressed, it was, as a technical matter, adjudicated; the Appellate Division denied Aparicio‘s coram nobis application. Id. Thus, this claim is exhausted. Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).6
Making that determination here is a vexing challenge, given the dearth of information in the state court decision. Not only did the Appellate Division not explicitly discuss Petitioner‘s ineffective assistance of trial counsel claim, it did not even acknowledge its existence. Explicating Petitioner‘s claim, the state court wrote, “Application by appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this court . . . .” Aparicio, 696 N.Y.S.2d at 697 (emphasis added). With regard to Petitioner‘s trial counsel claim, we are left with, in essence, a one-word decision: “denied.”
Faced with a spate of similar summary denials, this Court, interpreting Coleman, held that the Harris presumption did not apply to such denials without opinion “unless there is ‘good reason to question whether there is an independent and adequate state ground for the decision.‘” Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (quoting Coleman, 501 U.S. at 739).
Here, there can be no doubt that the state court‘s decision on Petitioner‘s trial counsel claim rested on an adequate and independent state bar: Aparicio never raised ineffective assistance of trial counsel in his direct appeal. As we discussed above, see supra, at 90, New York law prohibits review of a claim on collateral review when the defendant unjustifiably fails to raise the claim on direct appeal.
Petitioner‘s trial counsel claim, then, can only be reviewed on federal habeas if he satisfies the cause and prejudice standard of Coleman. And, similar to the double jeopardy claim, our later conclusion that the performance of Petitioner‘s appellate counsel in this regard was not so deficient as to violate Petitioner‘s Sixth Amendment rights, see infra, at 99-100 & n.11, serves to reject the only cause Petitioner presented for the default. This claim is also thus barred from federal review.
Having established that only Aparicio‘s claims of ineffective assistance of appellate counsel survive for federal review, we must lay out AEDPA‘s governing standards.
Under the AEDPA regime, once a state court has adjudicated a petitioner‘s claim on the merits, a federal court may not grant a habeas petition on that claim unless that adjudication “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.”
This Court recently held that for purposes of AEDPA, a state court “adjudicates” a petitioner‘s federal constitutional claims “on the merits” whenever “it (1) disposes of the claim ‘on the merits,’ and (2) reduces its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). To determine whether a state court has disposed of a claim on the merits, we consider: “(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court‘s opinion suggests reliance upon procedural grounds rather than a determination on the merits.” Id. at 314 (quoting Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)) (internal quotation marks omitted). So, to invoke the deferential standards of AEDPA, the state court need only dispose of the petitioner‘s federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required. Id. at 312.
Applying this test here, we conclude that Aparicio‘s claims of ineffective assistance of appellate counsel were “adjudicated on the merits” by the Appellate Division. Although it denied Aparicio coram nobis relief without mentioning the Sixth Amendment or relevant case law,7 there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds. Thus, because his claims have been “adjudicated on the merits” by a state court, we must review that decision under AEDPA‘s deferential standards.
IV. Applying AEDPA to Petitioner‘s Ineffective Assistance of Appellate Counsel Claims
A. AEDPA Standard of Review
When, as in this case, a state court fails to explicate a coherent rationale for its rejection of a petitioner‘s claim, but that rejection nevertheless is clearly on the merits, the federal court must “focus its review on whether the state court‘s ultimate decision was an ‘unreasonable application’ of clearly established Supreme Court precedent.” Id. at 311-12 (citing Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), cert. denied sub nom., Bell v. Beck, 122 S. Ct. 74 (2001)).
Significantly, however, the Supreme Court did caution that “an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Id. at 412 (emphasis in original). In short, a federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court‘s application must reflect some additional increment of incorrectness such that it may be said to be unreasonable. Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). However, “the increment need not be great; otherwise, habeas relief would be limited to state court decisions ‘so far off the mark as to suggest judicial incompetence.‘” Id. (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999) (en banc)).
B. Constitutional Principles
The Sixth Amendment commands that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”
Occasionally, the performance of defense counsel is so dismal that it ripens into the deprivation of counsel altogether and potentially violates the defendant‘s Sixth Amendment rights. To prevail on such a claim, Petitioner must show, not only that his counsel‘s representation was fundamentally defective, but also that, but for the counsel‘s errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Although it was born in the context of ineffective assistance of trial counsel, Strickland‘s two-prong test applies equally to claims of ineffective assistance of appellate counsel on a defendant‘s first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985).
The Strickland standard, then, is the relevant “clearly established Federal law, as determined by the Supreme Court of the United States” in this case. We must ensure that it was not unreasonably applied by the Appellate Division.
As to the first prong of the Strickland test--deficient performance--it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument. Counsel is not obliged to advance every nonfrivolous argument that could be made. Evitts, 469 U.S. at 394; Jones, 463 U.S. at 754 (1983). Strickland installed no rigid requirements; it created only an “objective standard of reasonableness” for the assessment of attorney performance. 466 U.S. at 688. In making that assessment, we must “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance,” and be watchful “to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
Applying the “objective[]” standard promulgated by Williams, 529 U.S. at 409, we hold that the Appellate Division did not unreasonably apply the Strickland test to either of Petitioner‘s two ineffective assistance of appellate counsel claims.
C. Double Jeopardy Claim
In his amended coram nobis petition, Aparicio claimed that his appellate counsel was ineffective for failing to argue that his indictment was multiplicitous and thus violated the constitutional prohibition against double jeopardy because second-degree possession of a firearm is a lesser included offense of first-degree robbery. This was the only double jeopardy claim properly before the district court.9 Thus, under AEDPA, we must now decide whether the Appellate Division unreasonably applied the Strickland standard by ruling that the failure of Aparicio‘s counsel to raise the double jeopardy argument on direct appeal did not rise to the level of ineffective assistance of appellate counsel. We hold that it did not.
It is well-settled constitutional law that the constitutional protection against double jeopardy is a personal right and, like other constitutional rights, can be waived if it is not timely interposed at trial. United States v. Papadakis, 802 F.2d 618, 621 (2d Cir. 1986); Paul v. Henderson, 698 F.2d 589, 592 (2d Cir. 1983); United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977). Thus, in New York, a defendant generally cannot assert a constitutional double jeopardy argument on appeal unless it was raised prior to the entry of the judgment of conviction. People v. LaRuffa, 37 N.Y.2d 58, 60-61, 371 N.Y.S.2d 434, 332 N.E.2d 312 (1976) (“The constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived.“); cf. People v. Addison, 73 A.D.2d 790, 423 N.Y.S.2d 707, 708 (4th Dep‘t 1979) (holding that defendant had preserved constitutional double jeopardy argument for appeal by raising the objection prior to sentencing, although after the verdict); see also
Aparicio did not raise his double jeopardy argument at his trial in 1994. Therefore, any efforts by Petitioner‘s appellate counsel to make this argument would have been futile because the argument had already been waived by trial counsel‘s failure to raise the objection.
The elements of robbery in the first degree are: (1) forcible stealing of property; and (2) “in the course of the commission of the crime or immediate flight therefrom, he . . . displays what appears to be a [firearm].”
The elements of criminal possession of a weapon in the second degree are: (1) possession of a firearm; (2) that is loaded and operable; and (3) with intent to use it unlawfully against another.
Petitioner argues that this semantic analysis is too facile and loses the forest for the trees. Petitioner claims that because non-operability of the firearm is an affirmative defense to first-degree robbery, the State, must, as a practical matter, prove the all the elements of the firearm possession offense to get a first-degree robbery conviction. Thus, the argument goes, prosecutors can take on a second-degree firearm possession charge to every first-degree robbery case, inflicting the evil that the Double Jeopardy clause prohibits: two punishments for a single criminal offense without explicit legislative authorization.
This argument, while it has some visceral appeal, overlooks some fundamental differences between elements of offenses and affirmative defenses thereto. Affirmative defenses are complete defenses that, once proven by the defendant by a preponderance of the evidence, negate criminal liability for an offense, notwithstanding that the State has otherwise proven all the elements of that offense beyond a reasonable doubt.
A few critical distinctions must be noted: First, the burden of proof for all affirmative defenses lies squarely with the defendant.
We conclude, therefore, that Petitioner was not subjected to double jeopardy by his prosecution and conviction for both first-degree robbery and second-degree criminal weapon possession. And because Petitioner‘s double jeopardy claim was, at bottom, meritless, the Appellate Division did not unreasonably apply the Strickland standard in holding that Petitioner had not been denied the effective assistance of appellate counsel on this claim. The failure to include a meritless argument does not fall outside the “wide range of professionally competent assistance” to which Petitioner was entitled.10 Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
D. Eyewitness Identification Instruction Claim
Finally, we turn to Petitioner‘s argument that his appellate counsel was ineffective for failing to raise the argument that his trial counsel was ineffective for not requesting a cautionary instruction on eyewitness testimony. Under AEDPA, we inquire only whether the Appellate Division‘s rejection of this claim amounted to an unreasonable application of the Strickland standard.
Generally, this Court has concluded that counsel‘s failure to object to a jury instruction (or to request an additional instruction) constitutes unreasonably deficient performance only when the trial court‘s instruction contained “clear and previously identified errors.” Bloomer v. United States, 162 F.3d 187, 193 (2d Cir. 1998); see also McKee v. United States, 167 F.3d 103, 108 (2d Cir. 1999). Conversely, when a trial court‘s instruction is legally correct as given, the failure to request an additional instruction does not constitute deficient performance. United States v. Brooks, 82 F.3d 50, 54 (2d Cir. 1996); United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992).
Measured against these standards, the trial court‘s decision not to include an additional cautionary instruction on eyewitness testimony was not erroneous. The charge instructed the jury to assess the credibility of the witnesses. Furthermore, the trial judge repeatedly instructed the jury that they had to conclude beyond a reasonable doubt that the defendant was the perpetrator of every element of an offense before they could convict. Thus, the charge sufficed as “an accurate statement of the law.” Whalen, 59 N.Y.2d at 279. Because, under the circumstances, the jury instructions were not improper, the failure of Petitioner‘s trial counsel to object or request an additional instruction was not objectively unreasonable. Brooks, 82 F.3d at 54. And, just as in our disposition of Petitioner‘s double jeopardy claim, Petitioner‘s appellate counsel was not ineffective for failing to raise the meritless argument.11 Jameson, 22 F.3d at 429-30. Under AEDPA, the Appellate Division did not unreasonably apply the Strickland standard in rejecting this claim.
CONCLUSION
We have considered all the parties’ remaining contentions and find them to be without merit. For the foregoing reasons, we AFFIRM the decision of the district court insofar as it denied in part Petitioner‘s habeas application, and REVERSE the decision insofar as it granted the habeas application in part and vacated the conviction for criminal possession of a firearm in the second degree. This case is REMANDED to the district court with instructions that Petitioner‘s habeas application be denied in its entirety.
SO ORDERED.
McLAUGHLIN, CABRANES, Circuit Judges, and COTE, District Judge