Robert C. MULLINS, Petitioner-Appellee, v. Superintendent Fred G. BENNETT, Respondent-Appellant, 228 F. App'x 55

SUMMARY ORDER Superintendent Fred G. Bennett appeals the district court’s grant of a writ of habeas corpus based on ineffective assistance of appellate counsel. See Mullins v. Bennett, 408 F.Supp.2d 160 (W.D.N.Y.2006). We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues. We hold as follows.

Under the Antiterrorism and Effective Death Penalty Act, we may not grant the writ of habeas corpus on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim 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. See 28 U.S.C. § 2254(d).

While the district court articulated this standard, the court did not correctly apply AEDPA’s deferential standard, instead substituting its independent judgment of the state court’s application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This was incorrect. See Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To demonstrate ineffective assistance of counsel, a petitioner must show both that “counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Thus, the district court could grant the writ only if the New York Supreme Court, Appellate Division, Fourth Department, which denied Mullins’s application for a writ of coram nobis, could not reasonably have held under Strickland and other Supreme Court precedent either that Mullins’s appellate counsel’s performance was not ineffective or that even if counsel’s performance was ineffective, Mullins was not prejudiced. See 28 U.S.C. § 2254(d)(1). We conclude that the Appellate Division could reasonably have applied Strickland to hold that Mullins was not prejudiced.

One of the reasons that the prosecutor offered for excusing an African-American juror—her employment— was potentially suspect under the Fourth Department’s

interpretation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), see, e.g., People v. Duncan, 177 A.D.2d 187, 582 N.Y.S.2d 847 (4th Dep’t 1992) (holding that prosecutor’s use of employment to justify dismissal was unacceptable because it was not connected to the facts of case.) Duncan does not, however, depart from the general recognition of employment as a race-neutral reason for exclusion. See id.; see also People v. Wint, 237 A.D.2d 195, 198-99, 655 N.Y.S.2d 469 (1st Dep’t 1997).

Whether or not the prosecutor in this case made the connection between the excused juror’s employment and the facts of the case, he offered three other reasons—the juror’s misstatement of the number of children she had, her claimed skittishness, and her reading of Freud—that were race neutral. Therefore, it would have been reasonable for the Appellate Division to conclude that had the Batson argument been raised on direct appeal, it would have been rejected.

Because we have concluded that the state court reasonably could have found a lack of prejudice, we do not determine the effectiveness of appellate counsel’s representation of Mullins. We reverse the grant of the writ and remand for entry of an order denying the writ.