Murden v. Artuz

Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
05-0610-pr
Murden v. Artuz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

--------------------

August Term 2006

Argued: February 12, 2007 Decided: August 10, 2007

Docket No. 05-0610-pr

----------------------------------------------------X

WILLIAM MURDEN,

Petitioner-Appellant,

- against –

CHRISTOPHER ARTUZ, Superintendent of
Greenhaven Correctional Facility

Respondent-Appellee.

-----------------------------------------------------X

Before: WALKER, HALL, Circuit Judges, and COTE, District

Judge *

Petitioner appeals from the denial of a petition for a writ

of habeas corpus by the United States District Court for the

Eastern District of New York (Jack B. Weinstein, Senior District

Judge). Petitioner argues that he received ineffective

*
The Honorable Denise Cote, United States District Judge for the
Southern District of New York, sitting by designation.
assistance of counsel because his counsel failed adequately to

investigate and pursue a defense of extreme emotional

disturbance. Respondent argues that federal review of

petitioner’s claims is procedurally barred and that petitioner’s

claims would also fail on the merits.

AFFIRMED.

Judge Hall concurs in the judgment of the Court and files a

separate concurring opinion.

ANDREA G. HIRSCH, New York,
New York, for Petitioner-Appellant

CHARLES J. HYNES, District
Attorney for Kings County (Leonard
Joblove, Joyce Slevin, and Thomas
M. Ross, Assistant District
Attorneys, of Counsel), Brooklyn,
New York, for Respondent-Appellee.

DENISE COTE, District Judge:

The Honorable Jack B. Weinstein issued a Certificate of

Appealability with his denial of the petition filed by William

Murden (“Murden”) for a writ of habeas corpus. Murden asserts

that his 1991 conviction for murder in the second degree in New

York state court should be overturned because the jury was not

given a charge on the partial affirmative defense of extreme

emotional disturbance (“EED”). Specifically, Murden complains

that his trial counsel failed to develop the evidence that would

have supported an EED charge. For the following reasons, Judge
Weinstein’s denial of the petition for a writ of habeas corpus

is affirmed.

BACKGROUND

I. Trial Evidence

Murden was charged with two counts of murder in the second

degree. N.Y. Penal Law § 125.25[1], [2]. The evidence at trial

established that on September 4, 1976 (“Saturday”), Murden

stabbed his girlfriend Diane Miles (“Miles”) in her bedroom

nineteen times, causing her death. At the time, Murden was

thirty-three years old and Miles was twenty years old. The

summary of trial evidence that follows is drawn from the

testimony of both the prosecution witnesses and Murden, who

testified on his own behalf. The discussion of Murden’s

relationship with Miles prior to September 3, 1976 (“Friday”) is

drawn entirely from Murden’s testimony.

Murden, Miles, and Miles’s five-year-old son Antoine, began

living together in the summer of 1975. In February 1976,

Antoine’s father attacked Murden and Murden ran away. Miles and

her mother teased Murden about the incident. Murden was later

evicted from the apartment he shared with Miles and when he

found a new apartment, Miles initially refused to move in with

him again. After she rejoined him, the relationship went well

for a few months, but in June 1976 Miles attempted to stab her

sister and ended up stabbing Murden’s friend instead. Miles
also started to stay out nights. She would leave her son with

Murden or relatives and sometimes threatened Murden with a knife

when he asked where she had been.

On Friday, Miles returned to the apartment after a four-day

absence. Murden asked where she had been, but did not get an

answer. Murden, Miles, and Miles’s mother drank late into the

night. Miles then made Murden sleep separately so that Miles’s

mother could sleep in their bed.

On Saturday, some of Miles’s other relatives and friends

arrived. Miles and her mother mocked Murden, saying he would

have to leave the apartment. Murden refused to leave, saying it

was his apartment. Murden drank a pint of rum that Miles’s

mother had given him, but claimed at trial that he was not

“drunk” on Saturday.

After drinking the rum, Murden went shopping. When he

returned to the apartment, the only other people in the

apartment were Miles, Antoine, Miles’s fifteen-year-old cousin

Cathy Faison (“Faison”), Miles’s friend Jacqueline Crawford

(“Crawford”), and Miles’s seven-year-old niece Shereia Denee

Webb (“Webb”). 1

The evidence viewed in the light most favorable to the

state, see Policano v. Herbert, 430 F.3d 82, 84 (2d Cir. 2005),

established that the following events then occurred. Murden

1
Webb’s presence was disputed by the defendant.
entered the kitchen, where Miles and Faison were sitting with

Antoine and Crawford. Miles asked Murden how he had gotten into

the apartment, since she had taken his key. Miles and Murden

began arguing. Murden pulled a large knife out of a kitchen

drawer and threatened to kill Miles with it. Miles began

crying, and Murden placed the knife back in the drawer, assuring

Miles that he loved her. Miles and Antoine then went to Miles’s

bedroom.

Murden hid a kitchen knife behind his back and followed

Miles into the bedroom. Murden approached Miles and leaned over

her twice as if asking for a kiss. When she refused to kiss him

and pushed his face away, Murden pulled out the kitchen knife

and repeatedly stabbed Miles as she cried for help and as her

body slumped off the bed.

Murden left the bedroom and moved quickly down the hallway,

holding the bloody knife. As Faison testified, Murden “looked

really wild,” his eyes were “really wide open,” and he “looked

crazy.” When Faison asked Murden what was wrong, he did not

answer, threw the knife down, and ran out of the apartment. Two

other witnesses heard Murden say, “I killed the bitch.”

Murden took a taxicab to his cousin Rita Burrows’s home.

He reported encountering several people at Rita’s home,

including a “Benny Porter,” who helped Murden board a bus for

Georgia, allegedly to see a “root doctor” or spiritual healer to
cure pains in his stomach. Murden remained a fugitive for

thirteen years, until his arrest in Florida in 1989, where he

was living under the name Gary Walters. When arrested, Murden

told a detective, “If I had stayed in New York this would be

over by now,” and, “I’ve been looking over my shoulder for

thirteen years.”

At trial, Murden’s account of the sequence of events

immediately preceding the murder differed sharply from that

presented by the state witnesses. He denied that he had taken a

knife out of the kitchen drawer and threatened Miles. He

explained that he stayed in the kitchen talking to Faison and

drinking a glass of ice water after Miles went into her bedroom.

Murden then went to Miles’s bedroom, where they continued to

argue about whether he would move out. Murden testified that

Miles then stabbed him in the leg with a knife. He said he

reached for her knife and that as he struggled with Miles, other

people attacked him from behind, hitting him in the head and

biting his leg. He claimed that he then “blanked out.” On

cross-examination he testified that he remembered “grabbing at”

the knife. Murden testified that he did not remember actually

getting the knife away from Miles, but also admitted that he had
stabbed Miles and remembered swinging the knife at her. 2

Testimony by a forensic pathologist established that Miles’s

wounds were consistent with the assailant thrusting a knife

downward and backward and the victim trying to protect herself

and inconsistent with a knife slashing from side to side.

During the entire trial, Murden asserted a defense of

justification, claiming that he stabbed Miles in self-defense.

Sometime after explaining in his opening statement that his

client had acted in self-defense, Murden’s counsel decided to

pursue an EED defense as well. The attorney argued vigorously

for a jury charge on this partial affirmative defense. He

argued that Miles’s failure to appreciate all Murden had done

for her, her aggressive treatment of him, her absences from the

apartment at night, and her cruel responses to his questions

about those absences “all add[] up to a point where any normal

person can reach that state of extreme emotional . . .

disturbance” and that Miles’s stabbing of Murden was “like the

straw that broke the camel’s back.” The judge denied the

request for an EED charge, holding that it was not supported by

sufficient evidence. He observed,

The way I understood the defendant’s testimony was
that he went into the bedroom without any intention to
do anything. That he was surprised when the deceased,

2
Murden now asserts that his trial attorney convinced him to
admit to stabbing Miles even though he had no recollection of
getting the knife from her.
 Diane Miles, is alleged to have stabbed him with a
knife. He reacted to the stabbing by apparently
trying to protect himself from being attacked not only
by Miss Miles, with a knife, but also someone behind
him and someone on the floor biting his leg.

Defense counsel did not request an intoxication charge. The

judge charged the jury on the defense of justification. Murden

was convicted of murder in the second degree.

II. Sentencing

At the March 8, 1991 sentencing proceeding, the state asked

for the maximum penalty of twenty-five years to life,

emphasizing Murden’s flight and lack of remorse. When Murden

spoke, he mentioned three complaints. He complained about jury

selection. He asserted that he was telling the truth when he

testified that he did not remember stabbing Miles, but that his

attorney told him during a recess in his testimony to admit that

he remembered doing it. Finally, he objected that his witnesses

had not been called to testify. He said, “I didn’t get none of

my witnesses that I gave -- didn’t get no witness that could

help me on my side . . . .” The judge asked for clarification,

stating that there was “nobody else in the room who was an

eyewitness as far as I know” and asking what kind of witness

Murden was talking about. Murden responded, “They are saying it

wasn’t my apartment and all that stuff like that and all other

stuff, owner of the building, and --.” The judge interjected,
“Those kind of witnesses doesn’t matter. The question is

whether you stabbed Ms. Miles with intent to cause her death,

and as a result of the stabbing, you did cause her death, and

whether you own the apartment, doesn’t matter.”

Murden concluded with a plea for mercy. The judge

sentenced him to twenty years to life imprisonment.

III. Direct Appeal

On direct appeal, Murden argued that the trial court

improperly refused his request for an EED charge. The Appellate

Division affirmed Murden’s conviction, holding that the trial

evidence was insufficient to support an EED defense. People v.

Murden, 593 N.Y.S.2d 837 (App. Div. 1993). It noted that Murden

had relied at trial upon a justification defense. It found that

his flight from the scene and the jurisdiction immediately after

the defense was inconsistent with the loss of control associated

with an EED defense; that his consumption of alcohol and

argument with his girlfriend just prior to the murder did not

suffice to establish the objective element of an EED defense;

and that the character of his argument with his girlfriend did

not establish a reasonable excuse for his claimed emotional

disturbance. Murden’s application for leave to appeal to the

New York Court of Appeals was denied without opinion. People v.

Murden, 616 N.E.2d 862 (N.Y. 1993).
IV. First Section 440 Motion

In his first motion to vacate, filed pursuant to Section

440.10 of the New York Criminal Procedure Law (“C.P.L.”) with

the assistance of counsel on February 5, 1996, Murden claimed

that he was denied effective assistance of trial counsel because

his counsel had failed to present enough evidence to support an

EED defense. He argued that trial counsel failed adequately to

confer with him in preparation for trial, and failed to consult

numerous potential witnesses whose testimony could have

supported both an EED and justification defense and bolstered

his credibility. He also asserted that trial counsel failed to

investigate Murden’s suicide attempt in 1972 or 1973, four years

before Miles’s murder. 3 In his affidavit offered in support of

his motion, he asserted that prior to trial he had informed

trial counsel of six witnesses who could have testified to his

emotional state shortly after Miles’s murder: his cousin Rita,

his sister Debra, 4 Benny Preston 5 (“Preston”), Mabel Lilly,

Robert Leverman, and Katherine Leverman. According to Murden,

3
Murden also argued that he was denied the opportunity to
testify before the grand jury and that trial counsel was
intoxicated, among other claims that are not presently at issue.
4
Murden submitted an affidavit from Debra Tulloch to support a
second Section 440 motion that he filed in 2004. Debra Tulloch
appears to be the sister “Debra” he mentioned in his 1996
affidavit.
5
“Benny Preston” appears to be the same individual whom Murden
identified at trial as “Benny Porter.”
they were at his cousin’s home on Saturday and knew of his

emotional disturbance, the pain in his stomach, and the wounds

on his hand and leg. Murden identified Dr. Dallas Moore, John

and Rose Clark, Jack Mayes, and Miles’s sister, Sheila Webb, as

individuals who could have testified about his stomach ailment

and Miles’s mistreatment of Murden. Murden submitted an

affidavit from one of these individuals, Preston, who described

Murden as appearing unusually agitated and frightened on

Saturday evening and reported Murden saying that he had been

attacked and had had to defend himself. Murden also explained

that he had told his trial counsel that he had seen a

psychiatrist six or seven times after a suicide attempt in 1972

or 1973, when he was despondent because a girlfriend wanted to

throw him out of his apartment.

The judge who had presided over Murden’s trial denied his

motion on March 28, 1996. He ruled that Murden’s claims that

trial counsel was ineffective for his failure to call certain

witnesses and for coercing Murden to perjure himself were

procedurally barred under C.P.L. § 440.10(2)(c) because Murden

had brought up these issues at sentencing and the record

contained facts sufficient for him to raise these claims on

direct appeal. The judge also ruled that, “[i]n any event,

defendant’s claims lack merit.” He noted that the defendant had

testified at trial of his stomach pain before the stabbing,
Miles’s mistreatment of him, the wounds he suffered when he was

stabbed and bitten, and his agitation. He concluded that the

trial record contained all of the facts that Murden’s witnesses

could have supplied. The judge observed that the Appellate

Division had already held that those facts were insufficient to

establish the EED defense, and that Murden’s behavior before and

after the murder was inconsistent with the loss of control

associated with the defense. 6 The decision did not discuss

whether trial counsel should have investigated Murden’s suicide

attempt.

With new counsel, who has continued to represent Murden

ever since, Murden applied on April 24, 1997 for leave to appeal

the denial of his Section 440 motion. He argued that with

sufficient preparation trial counsel would have concluded that

the EED defense was stronger than the justification defense and

would have presented just the EED defense to the jury rather

than a “scramble” of both defenses. With a more cohesive

presentation, he asserted that the trial court would have been

required to include the EED defense in its charge. Leave to

appeal was denied on July 9, 1997.

6
The judge also observed that defense counsel had never appeared
inebriated to the trial court.
V. 1997 Habeas Petition

In his habeas petition, which he filed on April 24, 1997,

Murden raised the same claims he had raised in his initial

motion to vacate, except that he did not repeat his claims that

his trial counsel had been intoxicated or that trial counsel

failed to investigate or present evidence on Murden’s 1972

suicide attempt and psychiatric care. The district court

dismissed the petition, holding that it was untimely under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). Murden

v. Artuz, No. 97-CV-2155(SJ), 1998 WL 305540 (E.D.N.Y. Apr. 23,

1998). With the state’s consent, this dismissal was vacated on

appeal and the petition was remanded.

On June 30, 2000, Murden filed a supplemental submission

that contained new grounds for his claim that trial counsel had

been ineffective. He added that counsel’s failures in pursuing

an EED defense included the failure to have Murden evaluated by

a psychiatrist and to obtain psychiatric records from 1972. The

state and Murden both submitted additional briefing to the

district court, and Murden included his hospital records from an

apparent suicide attempt in 1972.

On April 25, 2003, the petition was reassigned to Judge

Weinstein. 7 Responding to the state’s argument that Murden had

7
The Murden petition was reassigned to Judge Weinstein in
connection with Judge Weinstein’s extraordinary offer to work
not yet exhausted his new grounds for asserting ineffective

assistance, Judge Weinstein administratively closed the case on

September 4, 2003 to permit Murden to exhaust these grounds.

VI. Second Section 440 Motion

In his second motion to vacate, filed on January 2, 2004,

Murden argued that his trial counsel was ineffective for his

failure to develop the evidentiary record which would have

suggested the existence of an EED defense, for pursuing a

justification defense that was “hopeless,” and for not

developing the evidence that Murden was intoxicated during the

killing and requesting an intoxication charge. 8 According to

Murden, trial counsel failed to conduct a pre-trial

investigation, to obtain psychiatric records concerning Murden’s

prior suicide attempt, to have Murden examined by a

psychiatrist, and to interview potential defense witnesses.

Murden submitted several pieces of evidentiary material

that he had not presented with his original Section 440 motion.

through the backlog of habeas corpus petitions in the Eastern
District of New York. In re Habeas Corpus Cases, No. 03-misc-
66(JBW), 2003 WL 21919833 (E.D.N.Y. May 1, 2003). After
reviewing and issuing decisions on five hundred petitions, Judge
Weinstein issued his Report on 500 Habeas Corpus Cases to Chief
Judge Edward R. Korman on December 11, 2003. 298 F. Supp. 2d
303 (E.D.N.Y. 2003).
8
Murden also presented several other arguments not at issue
here.
He submitted his 1972 psychiatric records and an affidavit from

a psychiatrist, Dr. Eric Goldsmith, who evaluated Murden’s trial

testimony and psychiatric records reporting that Murden “might

want to hurt” his girlfriend at the time because of jealous

feelings. Dr. Goldsmith concluded that Murden “likely” killed

Miles under the influence of an extreme emotional disturbance. 9

Murden also presented three affidavits from individuals who saw

Murden Saturday night and who could support his intoxication

defense. His sister Debra Tulloch averred that Murden looked

drunk, wide-eyed, and discombobulated, “like he was out of it,”

on Saturday night. 10 Another sister, Elaine Boomer, reported

that Murden had sounded very upset and was drinking when they

spoke by telephone on Friday night and that Saturday night he

looked as if he had been drinking and was crying, apologizing,

and saying that he “didn’t mean to hurt” Miles. Preston stated

that Murden looked like he might have been drinking on Saturday

night. In his own affidavit, Murden describes himself as drunk

when Miles was killed.

9
Murden explained that he lacked the funds to pay for an
examination by Dr. Goldmith, and asked the state court to
appoint Dr. Goldsmith as an expert under Article 18-B to conduct
such an examination.
10
Tulloch asserts that at least three other witnesses that
Murden had identified to trial counsel as possible witnesses are
now dead: his cousin Rita Burrows, to whose apartment he fled on
Saturday night, and Robert and Katherine Leverman, who were at
Rita Burrows’s apartment that night.
 On March 26, 2004, the state court denied Murden’s second

Section 440 motion, finding both that it was procedurally barred

and failed on the merits. Citing C.P.L. §§ 440.10(3)(b) and

(c), the judge found that the entire motion was procedurally

barred because the claims were or could have been raised in the

original Section 440 motion. In addition, insofar as the motion

asserted that Murden received ineffective assistance of counsel

because his trial counsel coerced him to lie and failed to call

his witnesses, the court found the claims procedurally barred

because they could have been raised on direct appeal. See

C.P.L. § 440.10(2)(c). On July 14, 2004, the Appellate Division

denied Murden leave to appeal.

VII. 2004 Habeas Litigation

Murden’s federal habeas petition was reopened on September

7, 2004. Murden amended his petition to add all of the claims

in the second Section 440 motion that had not been presented in

his original petition. As relevant to this appeal, he added

ineffectiveness claims premised on trial counsel’s failure to

get Murden’s psychiatric records and to retain a psychiatrist.

He argued that his claims were not procedurally barred and that
the state court’s merits ruling was an unreasonable application

of federal law. 11

At a hearing before Judge Weinstein on December 16, 2004,

in which Murden participated by telephone, his trial counsel

testified that he did not have a good recollection of this case

or of how many times he met with Murden. The attorney had been

retained by Murden’s mother in November 1990, at a time when the

case was marked as “trial ready,” and after Murden had been in

custody for over a year. In early January 1991, the trial court

scheduled the trial to begin at the end of the month.

One page of trial counsel’s surviving pretrial notes

contained the name Debra Murden beside a telephone number and

the notation “get from mother.” The same sheet contained the

name and number of a potential character witness, with the

notation “NOT GOOD.” Another page contains the notations

“Elaine Boomer,” “Jack + Helen Mayes,” and “Deborah Murden.”

The attorney had not retained all of his notes and did not

remember if Murden had suggested other potential witnesses, but

asserted that it was his general practice to contact and

evaluate potential witnesses. Habeas counsel for Murden offered

11
Although Murden did not submit to the District Court the
affidavits from Tulloch, Boomer, and Preston that he had
submitted to the state court in support of his second Section
440 motion, he did refer to them in his 2004 submissions to the
district court, and they were included in the state court record
which was transmitted to the district court.
a passage from the trial transcript showing that, when the trial

judge had asked trial counsel for witness names to read to

potential jurors, defense counsel had conferred with Murden and

written some names before answering. Murden testified about his

communications with his trial counsel and asserted that he had

lied at trial when he had denied being drunk at the time of the

murder.

In a twenty-two page unpublished opinion of January 3,

2005, Judge Weinstein thoughtfully evaluated the merits of each

of Murden’s claims, finding that the reopened petition was

timely, that Murden had exhausted his claims, and that the

procedural bar arguments were not decisive because the claims

failed on the merits and Murden had received a fair trial. From

his review of the trial transcript and the hearing evidence,

Judge Weinstein found that trial counsel had been prepared and

had mounted a vigorous defense. Where Murden and his trial

counsel disputed facts concerning the representation, Judge

Weinstein found counsel credible and found Murden’s credibility

to be “suspect.”

Judge Weinstein noted, however, that the claim that the

attorney had failed to investigate fully the EED defense was

“not without some basis,” and that it was possible that he

should have pursued that defense in lieu of a justification
defense. Instead, after opening to the jury on the theory of

self-defense alone, trial counsel chose to pursue both defenses.

When he turned to the second prong of the Strickland test

for ineffective assistance of counsel, however, Judge Weinstein

found Murden unable to show prejudice. See Strickland v.

Washington, 466 U.S. 668 (1984). While trial counsel “did not

have a winner” with self-defense, he “had a loser with EED.”

Murden’s psychiatric records “would have revealed petitioner to

the jury as a violently jealous man, possessed by a kind of

homicidal jealousy directed at least [at] one other person in

addition to this victim.” Psychiatric testimony based on

Murden’s contemplated suicide following an intense argument with

a prior girlfriend would not have established the objective

element of the EED defense since there was no reasonable

explanation for an extreme emotional disturbance, as the

Appellate Division had already held in rejecting Murden’s direct

appeal from his conviction. Murden having testified at trial

that he acted in self-defense, Judge Weinstein found that he

could not complain that his counsel had failed to pursue a

factually incompatible theory. Judge Weinstein concluded that

the proffered testimony from the uncalled witnesses would not

have helped to obtain an acquittal.

Judge Weinstein nonetheless granted a Certificate of

Appealability (“COA”) confined to the issues of whether Murden
was denied effective assistance of counsel because defense

counsel (1) failed to have Murden assessed by a psychiatrist,

and (2) failed to investigate or prosecute an EED defense. In a

June 6, 2006 order, we expanded the scope of the COA to include

(1) whether Murden was denied effective assistance of counsel by

defense counsel’s failure to investigate the EED defense by not

speaking to Murden or his witnesses before trial; and (2)

whether the procedural bars cited by the New York State court

bar relief on the substantive issues on appeal. 12

DISCUSSION

We review de novo the District Court’s denial of Murden’s

petition for a writ of habeas corpus, and we review its factual

conclusions for clear error. Mosby v. Senkowski, 470 F.3d 515,

518 (2d Cir. 2006). Murden filed his habeas petition after the

effective date of AEDPA, so it is subject to review under the

standards established in that Act. 28 U.S.C. § 2254(d); Lynn v.

Bliden, 443 F.3d 238, 245 (2d Cir. 2006).

This appeal addresses the claim that Murden’s trial counsel

was ineffective for his failure to do the following: (1) have

Murden evaluated by a psychiatrist; (2) obtain evidence of

Murden’s hospitalization and psychiatric care following his

12
The state urges us to deny the petition as untimely. Because
we may affirm the district court’s denial of the petition on
other grounds, we choose not to reach that issue.
possible suicide attempt in 1972; (3) interview and/or call

defense witnesses to testify in support of an EED defense; and

(4) confer with Murden regarding an EED defense. We begin by

addressing the state’s assertion that review of each of the

alleged omissions of Murden’s trial counsel is procedurally

barred.

I. Procedural Bar

As explained below, Murden’s assertion that his attorney

failed to have him evaluated by a psychiatrist is procedurally

barred because it could have been but was not presented in his

first Section 440 motion. The three remaining accusations

against trial counsel were sufficiently identified in the first

Section 440 motion to warrant at least partial review on the

merits.

A. Failure to Have Murden Evaluated by a Psychiatrist

Murden argued to the state courts for the first time in his

second Section 440 motion that his trial counsel should have had

him evaluated by a psychiatrist. In its March 26, 2004

decision, the state court ruled that this as well as other

claims were procedurally barred because they either were or

could have been raised in Murden’s first Section 440 motion,

citing C.P.L. §§ 440.10(3)(a), (b), and (c). Section
440.10(3)(c) of the C.P.L. applies to claims that a criminal

defendant could have but did not adequately raise in a prior

state court collateral attack on a conviction. 13 It provides:

Notwithstanding the provisions of subdivision one, the
court may deny a motion to vacate a judgment when . . .

(c) Upon a previous motion made pursuant to this
section, the defendant was in a position adequately to
raise the ground or issue underlying the present
motion but did not do so.

Although the court may deny the motion under any of
the circumstances specified in this subdivision, in
the interest of justice and for good cause shown it
may in its discretion grant the motion if it is
otherwise meritorious and vacate the judgment.

C.P.L. § 440.10(3)(c).

This court is generally procedurally barred from

considering a ruling that “fairly appear[s] to rest primarily on

state procedural law.” Jimenez v. Walker, 458 F.3d 130, 138 (2d

Cir. 2006) (citation omitted). Even where the state court has

ruled on the merits of a federal claim “in the alternative,”

federal habeas review is foreclosed where the state court has

also expressly relied on the petitioner’s procedural default.

Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (citation

omitted). To bar federal habeas review, however, the state

court’s decision must rest not only on an independent procedural

13
Subsections (a) and (b) generally apply to issues which appear
in the trial record or which were decided during a prior
collateral attack on the conviction. C.P.L. §§ 440.10(3)(a),
(b).
bar under state law, but also on one that is “adequate to

support the judgment.” Jimenez, 458 F.3d at 138.

A state procedural bar is “adequate” if it “is firmly

established and regularly followed by the state in question” in

the specific circumstances presented in the instant case.

Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (citation

omitted). The “guideposts” for analyzing the issue of adequacy,

articulated in the context of a procedural default occurring at

trial, are:

(1) whether the alleged procedural violation was actually
relied on in the trial court, and whether perfect
compliance with the state rule would have changed the trial
court's decision; (2) whether state caselaw indicated that
compliance with the rule was demanded in the specific
circumstances presented; and (3) whether petitioner had
“substantially complied” with the rule given “the realities
of trial,” and, therefore, whether demanding perfect
compliance with the rule would serve a legitimate
governmental interest.

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citation

omitted). The Cotto guideposts also apply to testing the

adequacy of a procedural default raised in a state collateral

proceeding. See, e.g., Clark v. Perez, 450 F.Supp. 2d 396, 426

(S.D.N.Y. 2006). Because of comity concerns, a decision that a

state procedural rule is inadequate should not be made “lightly

or without clear support in state law.” Garcia v. Lewis, 188

F.3d 71, 77 (2d Cir. 1999) (citation omitted).
 When analyzed against the Cotto factors, subsection (3)(c)

of C.P.L. § 440.10 constitutes an adequate state procedural bar

to federal habeas review. The state court referred explicitly

to C.P.L. § 440.10(3)(c) when it dismissed the ineffectiveness

claim alleging that trial counsel should have engaged a

psychiatrist to evaluate Murden. Moreover, New York state

courts regularly apply subsection (3)(c) to deny claims that

could have been but were not raised on previous motions to

vacate. See Rosario v. Bennett, No. 01-CV-7142, 2002 WL

31852827, at *21 & n.31 (S.D.N.Y. Dec. 20, 2002) (M.J.)

(collecting cases); see also, e.g., People v. Cochrane, 810

N.Y.S.2d 670, 671 (App. Div. 2006); People v. Brown, 807

N.Y.S.2d 24 (App. Div. 2005); People v. Sierra, No. 229/00, 2006

WL 2829819 (N.Y. Sup. Ct. Aug. 21, 2006). 14

Turning to the third Cotto factor, Murden did not

substantially comply with subsection (3)(c). His first

14
The cases that Murden cites as considering successive Section
440 motions on their merits do not in any way suggest that
Section 440.10(3)(c) is not regularly applied to bar the types
of claims at issue here. In People v. Jackson, there was no
claim that the defendant could have raised the state’s failure
to produce a witness’s prior statement at any earlier point.
585 N.E.2d 795, 797 (N.Y. 1991). People v. Thomas, upheld
enforcement of the subsection (3)(c) bar. 537 N.Y.S.2d 600, 601
(App. Div. 1989). People v. Bell addressed whether a Section
440.10 claim was barred by laches. 686 N.Y.S.2d 259, 262-63
(N.Y. Sup. Ct. 1998). People v. Coles does not address a
successive Section 440.10 motion. 535 N.Y.S.2d 897 (N.Y. Sup.
Ct. 1988).
collateral attack on his conviction contained no reference

whatsoever to the absence of a psychiatric evaluation.

Moreover, enforcement of the procedural bar here serves

legitimate governmental interests. As New York’s courts have

explained, subsection (3)(c) protects “important finality

concerns” and prevents delays that might prejudice the

prosecution. People v. Bracey, 807 N.Y.S.2d 34, 36 (App. Div.

2005). Murden’s first Section 440 motion was filed roughly five

years after his conviction and nearly twenty years after the

murder. His second Section 440 motion was filed nearly eight

years later. Considering each of the Cotto factors, the

procedural bar applied by the state court was adequate to bar

federal habeas review on the merits, 15 as numerous district

courts have found in the circumstances of their cases. See,

e.g., Morales v. Greiner, No. CV-98-6284 (FB), 2005 WL 1009545,

at *8 (E.D.N.Y. May 2, 2005); Bell v. Poole, No. 00-CV-

5214(ARR), 2003 WL 21244625, at *9-10 (E.D.N.Y. Apr. 10, 2003);

Rosario v. Bennett, 2002 WL 31852827, at *20-22; Ryan v. Mann,

15
Murden argues that subsection (3)(c) is inadequate in light of
Williams v. Georgia, 349 U.S. 375 (1955), and Sullivan v. Little
Hunting Park, Inc., 396 U.S. 229 (1969). In each case, the
Court refused to find that a state court procedural bar was
adequate to prevent the exercise of Supreme Court review since
the bars were not consistently applied in the circumstances
presented in the cases on review. Williams, 349 U.S. at 383;
Sullivan, 396 U.S. at 234. Murden has made no similar showing
for C.P.L. § 440.10(3)(c).
73 F. Supp. 2d 241, 248 & n.7 (E.D.N.Y. 1998), aff’d, No. 99-

2140, 1999 WL 1295334 (2d Cir. Dec. 27, 1999).

Murden argues that C.P.L. § 440.10(3) cannot constitute an

independent and adequate state procedural bar because it is a

discretionary and not mandatory rule. Subsection (3) provides

that a court “may” deny a motion to vacate in each of the

circumstances it identifies, and also provides that “in the

interest of justice and for good cause shown” a court may

exercise its discretion and grant a meritorious motion. C.P.L.

§ 440.10(3); see also, e.g., People v. Bryce, 731 N.Y.S.2d 263,

268 (App. Div. 2001) (citing C.P.L. § 440.10(3) and vacating

conviction in interests of justice where post-trial exhumation

of victim’s skull showed that trial evidence of skull fracture

was grossly erroneous). The statutory grant of discretion does

not prevent Section 440.10(3) from operating as a procedural bar

to federal habeas review under the circumstances presented in

this case.

As already described, New York state courts regularly apply

subsection (3)(c) to deny claims that could have been but were

not raised on previous motions to vacate. As this court found

in connection with another New York rule that permits

exceptions, even if New York law allows “some discretion to be

exercised,” the application of the procedural default rule in a

particular case remains appropriate so long as the rule is
“evenhandedly” applied “to all similar claims.” Wedra v.

Lefevre, 988 F.2d 334, 340 (2d Cir. 1993) (enforcing procedural

bar from time limits for appeals from denials of Section 440.10

motions). Similarly, in Glenn v. Bartlett, we found a

procedural bar, based on the defendant’s failure to preserve an

objection at trial, even though the state court acknowledged

that it could have reversed the conviction “in the interest of

justice.” 98 F.3d 721, 724-25 (2d Cir. 1996).

Finally, Murden contends that Section 440.10(3)(c) is not

independent of federal law because it allows the court to grant

the motion if, among other requirements, it “is otherwise

meritorious,” thus requiring the state court to look to the

merits of a federal claim. We disagree. Where a state court

explicitly relies on a state procedural bar and does not rest

its application of the bar on its consideration of the merits,

the ruling is independent of federal constitutional law. See

Jiminez, 458 F.3d at 145; see also Stewart v. Smith, 536 U.S.

856, 859-61 (2002). Nothing in Section 440.10(3)(c) requires

the court to look to the merits of the prisoner’s motion, and

nothing in the record here suggests that the court considered

the merits in applying this procedural bar.

Even though a constitutional claim is procedurally barred

from federal review, Murden may obtain review of his claim on

the merits if he shows that equity demands it. Dretke v. Haley,
541 U.S. 386, 393 (2004). To obtain such review, he must either

demonstrate “cause and prejudice for the procedural default,” or

that the “constitutional violation has probably resulted in the

conviction of one who is actually innocent of the substantive

offense.” Id. (citation omitted); see also Doe v. Menefee, 391

F.3d 147, 160-63 (2d Cir. 2004); DiGuglielmo v. Smith, 366 F.3d

130, 135-36 (2d Cir. 2004).

Murden argues that he can show cause for the default because

the attorney who represented him on his first Section 440

petition was ineffective when he failed to include this

argument. There is no constitutional right, however, to an

attorney “in state post-conviction proceedings” where such

proceedings are not the first appeal as of right. Coleman v.

Thompson, 501 U.S. 722, 752 (1991). As a consequence, “a

petitioner cannot claim constitutionally ineffective assistance

of counsel in such proceedings,” id., and errors by counsel in

such proceedings do not constitute cause for a procedural

default. Id. at 756-57.

Murden asks that this court reject Coleman’s holding in

light of the guidance in Massaro v. United States that federal

defendants should be permitted to bring ineffective assistance

claims through federal habeas petitions “whether or not the

petitioner could have raised the claim on direct appeal.” 538

U.S. 500, 504 (2003). Murden reasons that defendants in state
criminal proceedings should also have a right to submit

ineffective assistance claims for the first time through a

collateral attack on a conviction, and therefore that we should

find that they have a constitutional right to counsel in

bringing their first state court collateral attack on their

conviction, at least where they raise a claim that trial counsel

was ineffective. There is, however, no constitutional right to

representation by counsel to pursue a claim that trial counsel

was ineffective, apart from the right to counsel for direct

appeal. United States v. Doe, 365 F.3d 150, 155 (2d Cir. 2004).

Even where a federal defendant raises an ineffectiveness claim

for the first time through a habeas petition, there is no

constitutional right to counsel. Id.

Murden also has not shown actual innocence. “To

demonstrate actual innocence a habeas petitioner must show that

it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence.” Dunham v. Travis,

313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513

U.S. 298, 327 (1995)). This requires “a stronger showing” than

the showing of prejudice necessary to prevail on an ineffective

assistance claim. Id. Actual innocence requires “not legal

innocence but factual innocence.” Menefee, 391 F.3d at 162.

The affirmative defense of extreme emotional disturbance is

a partial defense to second-degree murder, and is available
where “[t]he defendant acted under the influence of extreme

emotional disturbance for which there was a reasonable

explanation or excuse.” N.Y. Penal Law § 125.25(1)(a). There

are two elements to the EED defense.

To prove such an affirmative defense, a defendant must
demonstrate, first, that he or she acted under the
influence of an extreme emotional disturbance and,
second, that there was a reasonable explanation or
excuse for that disturbance. The first, subjective
element is met if there is evidence that defendant’s
conduct at the time of the incident was actually
influenced by an extreme emotional disturbance. The
second is an objective element and requires proof that
defendant’s emotional disturbance was supported by a
reasonable explanation or excuse. This is determined
by viewing the subjective mental condition of the
defendant and the external circumstances as the
defendant perceived them to be at the time, however
inaccurate that perception may have been, and
assessing from that standpoint whether the explanation
or excuse for the emotional disturbance was
reasonable.

People v. Roche, 772 N.E.2d 1133, 1138 (N.Y. 2002)

(citation omitted). Proof of the subjective and objective

elements of the EED defense permits conviction of the

defendant of manslaughter in the first degree in lieu of

murder in the second degree. Vargas-Sarmiento v. U.S.

Dep’t of Justice, 448 F.3d 159, 166 (2d Cir. 2006).

Murden has not shown that, with testimony from a

psychiatrist, no reasonable juror would have convicted him of

murder. Murden has offered an affidavit from a psychiatrist

whose examination of Murden’s trial testimony and 1972
psychiatric records has led him to conclude that Murden “likely”

was suffering from an extreme emotional disturbance when he

killed Miles. The psychiatrist opines that these documents

suggest that Murden “had a mood and personality disorder, was

vulnerable to humiliation, lacked stability, and could not

manage his emotions, and that his emotional condition was

dependent on the condition of his relationship with his

girlfriend,” likely causing him to lose control of his emotions

when Miles taunted him and told him to leave the apartment.

If a psychiatric examination had been conducted at the time

of the trial, the examination would have taken place fifteen

years after the murder, seriously undermining its probative

value regarding Murden’s emotional condition at the time of the

crime. Murden’s trial testimony that he lashed out in self-

defense also runs counter to the proffered EED defense. While

Murden was entitled to pursue alternative defenses at trial, his

description of the course of events that led to Miles’s death

significantly weakens the EED defense as a practical matter.

Murden has not made the showing required to demonstrate actual

innocence. In sum, Murden’s claim that trial counsel was

ineffective for his failure to have Murden evaluated by a

psychiatrist is procedurally barred from federal habeas review.
 B. Failure to Interview Witnesses

The state contends that Murden’s claim that his trial

attorney was ineffective due to his failure to interview or call

witnesses is procedurally barred because Murden could have

raised it on direct appeal. This portion of Murden’s

ineffectiveness claim is not procedurally barred.

Murden raised his trial counsel’s failure to interview

witnesses in his first Section 440 motion. 16 In ruling on that

motion, the state court found the claim procedurally barred,

pursuant to C.P.L. § 440.10(2)(c), because the trial record

permitted Murden to raise this claim on direct appeal.

Subsection (2)(c) provides:

Notwithstanding the provisions of subdivision one
[listing grounds for vacating judgment], the court
must deny a motion to vacate a judgment when . . .

Although sufficient facts appear on the record of the
proceedings underlying the judgment to have permitted,
upon appeal from such judgment, adequate review of the
ground or issue raised upon the motion, no such
appellate review or determination occurred owing to
the defendant's unjustifiable failure to take or
perfect an appeal during the prescribed period or to

16
Although Murden offered an affidavit from Preston and no other
witnesses in support of his first Section 440 motion, we find
that he preserved his claim that his trial counsel had failed to
interview and evaluate each of the witnesses Murden identified
in his first Section 440 motion. To the extent Murden offered
more witness affidavits or identified more witnesses when he
filed his second Section 440 motion, consideration of that
evidence is procedurally barred. See Kennaugh v. Miller, 289
F.3d 36, 40, 41, 48-49 (2d Cir. 2002), aff’g 150 F. Supp. 2d 421
(E.D.N.Y. 2001).
 his unjustifiable failure to raise such ground or
issue upon an appeal actually perfected by him . . . .

C.P.L. § 440.10(2)(c) (emphasis supplied).

Where the basis for a claim of ineffective assistance of

counsel is well established in the trial record, a state court’s

reliance on subsection (2)(c) provides an independent and

adequate procedural bar to federal habeas review. See Sweet v.

Bennett, 353 F.3d 135, 140 (2d Cir. 2003). Since not every

ineffective assistance claim is sufficiently presented in a

trial record, however, the New York Court of Appeals has long

recognized that a Section 440.10 proceeding is often superior to

a direct appeal for asserting such claims. As the New York

Court of Appeals observed in People v. Brown, “in the typical

case it would be better, and in some cases essential, that an

appellate attack on the effectiveness of counsel be bottomed on

an evidentiary exploration by collateral or post-conviction

proceeding brought under C.P.L. 440.10.” 382 N.E.2d 1149, 1149

(N.Y. 1978); see also People v. Love, 443 N.E.2d 486, 487 (N.Y.

1982); People v. Velazquez, 822 N.Y.S.2d 65, 67 (App. Div.

2006); People v. Daley, 818 N.Y.S.2d 300, 302 (App. Div. 2006);

People v. Flagg, 819 N.Y.S.2d 577, 581 (App. Div. 2006).

Accordingly, New York courts have refused to apply subsection

(2)(c) to bar an ineffective assistance claim where “sufficient

facts do not appear on the record of the proceedings underlying
the judgment to have permitted” adequate review of the issue on

direct appeal. People v. Harris, 491 N.Y.S.2d 678, 687 (App.

Div. 1985) (citation omitted); accord People v. Johnson, 732

N.Y.S.2d 137, 139 (App. Div. 2001); People v. Williams, 586

N.Y.S.2d 215, 215 (App. Div. 1992).

The state has not shown that subsection (2)(c) provides an

adequate state procedural bar in the context of the specific

claim made here. While it is true that the state court

explicitly relied on this bar when it denied Murden’s first

Section 440 motion, the state has not shown that state courts

regularly demand compliance with this rule when a defendant

makes reference to uncalled witnesses in the course of a

sentencing proceeding. The focus of the proceeding was on the

length of the sentence that the court would impose, and not on

the adequacy of trial counsel’s representation of the defendant.

As a result, there was an insufficient exploration of Murden’s

accusation to enable him to litigate this issue on direct

review. Murden’s claim that his attorney failed to interview or

call witnesses to support an EED defense is therefore not

procedurally barred.
 C. Remaining Two Claims

The state claims that Murden’s remaining two claims are

also procedurally barred. This contention can be swiftly

rejected.

In his first Section 440 motion Murden argued that his

trial counsel failed to investigate his attempted suicide in

1972 and to confer with him in preparation for the trial. The

ruling on the first Section 440 motion applied no procedural bar

to these claims and found that all of Murden’s claims lacked

merit. Thus, to the extent that he raised these issues in that

initial collateral attack on his conviction, they are not

procedurally barred from our review.

The rejection of the claims concerning the attempted

suicide and failure to confer in the second Section 440 motion

on the ground that they were or could have been raised in the

original Section 440 motion, and the citation to C.P.L. §

440.10(3)(c), creates a procedural bar to federal habeas review

only to the extent that Murden offered new evidence or argument

with his second motion. See Kennaugh v. Miller, 289 F.3d 36,

48-49 (2d Cir. 2002) (applying procedural bar to review of

second set of police reports presented on a motion to renew or

reargue a Section 440 motion). Thus, we are procedurally barred

from considering Murden’s 1972 psychiatric records, which were

not presented with his first Section 440 motion, but we are not
barred from considering his reference to his prior suicide

attempt, which was presented on that first motion.

II. Merits

Having resolved the extent to which Murden is procedurally

barred from federal habeas review of his ineffective assistance

claim concerning the EED defense, we turn to the merits of

Murden’s claim that his trial counsel should have consulted with

him regarding his EED defense, interviewed witnesses for that

defense, and explored his attempted suicide some four years

prior to the murder. Under AEDPA, when a claim “was adjudicated

on the merits in State court proceedings,” a federal court may

not issue a writ of habeas corpus unless the state court

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,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Id. § 2254(d)(2).

Findings of fact by the state court are presumed correct, and

“[t]he applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.”

Id. § 2254(e)(1). To find that a state court has unreasonably

applied clearly established federal law, “we must be able to
adequately identify why [we] found the [state-court] decision .

. . to be objectively unreasonable.” Jimenez, 458 F.3d at 147

(citation omitted).

In denying Murden’s initial Section 440 motion, the trial

court reached the merits of his ineffectiveness claim. 17 It

found that trial counsel had consulted with Murden at trial,

that Murden’s disagreement with his trial counsel’s “strategy or

tactics” did not result in ineffective assistance, and that the

proffered evidence from the uncalled witnesses, including the

evidence described in the Preston affidavit, had already been

presented to the jury through Murden’s own testimony and was in

any event insufficient to establish the EED defense. This

ruling on the merits is entitled to AEDPA deference. See 28

U.S.C. § 2254(d). Although the state court did not specifically

dismiss Murden’s assertion regarding the failure to investigate

the 1972 suicide attempt, an unexplained ruling on the merits is

also entitled to AEDPA deference. Jimenez, 458 F.3d at 143

(citing Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001)).

Murden correctly identifies Strickland v. Washington, 466

U.S. 668 (1984), as the relevant Supreme Court precedent for

evaluating his claim of error. Under Strickland, a defendant

17
As described above, the state court ruled in the alternative
in denying Murden’s motion, finding that certain components of
the motion were procedurally barred, but that all of it should
be denied on the merits “in any event.”
must show that counsel’s representation “fell below an objective

standard of reasonableness” determined according to “prevailing

professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 688, 694. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. A court must consider

“the totality of the evidence before the judge or jury” in

judging counsel’s performance. Id. at 695. To prevail, a

defendant must establish both of Strickland’s prongs because,

otherwise, “it cannot be said that the conviction . . . resulted

from a breakdown in the adversary process that renders the

result unreliable.” Id. at 687. Counsel’s performance is

examined from counsel’s perspective at the time of and under the

circumstances of trial. Id. at 689. Counsel is “strongly

presumed” to have exercised reasonable judgment in all

significant decisions. Id. at 690.

Murden has not shown that the state court’s rejection of

Murden’s ineffective assistance claim was either contrary to, or

an unreasonable application of, the Strickland standard. Nor

has Murden presented clear and convincing evidence that the

state court’s factual findings were incorrect.

It was entirely reasonable for Murden’s counsel to pursue

as Murden’s primary defense the claim that Murden had killed
Miles in self-defense. The justification defense was consistent

with Murden=s description of the events that led to Miles’s

murder. Murden did not describe lashing out after Miles

rebuffed his request for a kiss. He did not assert that he

killed her because he suddenly feared that he would lose her or

his apartment. Instead, he described striking out only after

and in reaction to Miles’s attacking him with a knife and others

attacking him from behind. Even the Preston affidavit, which

Murden offered with his first Section 440 motion, corroborated

the justification defense. According to Preston, on the

Saturday night of the murder Murden reported that he had been

attacked and had acted to defend himself.

It is of course permissible as a legal matter for an

attorney to pursue alternative and even factually inconsistent

defenses, but as a practical matter, it is difficult for Murden

to show that he was prejudiced by his counsel’s failure to

develop the EED defense further at trial. Murden argues that,

had his counsel been effective, he could have established that

Murden was predisposed to emotional disturbance based upon

troubles with girlfriends and that the taunting by Miles and her

family, Miles’s threats to kick him out of his apartment, and

her refusal to let him sleep with her on Friday night provoked

an extreme emotional disturbance that caused Murden to kill
Miles. Murden’s trial testimony did not support the asserted

EED defense, however, and was in fact inconsistent with it.

Moreover, with the exception of the victim, everyone who

was present in the apartment at the time of the murder testified

at trial, and their testimony was insufficient to establish

either the subjective or the objective component of the EED

defense. The state court heard Murden’s description at trial of

his troubled relationship with the victim, her taunts of him,

and the events as they unfolded that Friday and Saturday, and

concluded (as had the Appellate Division on Murden’s direct

appeal) that it did not establish an EED defense.

None of the witnesses Murden identified in his first

Section 440 motion could have done much to change that

perception; none was a witness to the events that occurred at

the murder scene that Saturday. Even Preston’s assertion in his

affidavit that Murden appeared unusually agitated and frightened

that Saturday night was of little benefit to Murden. If

anything, it undercut Murden=s assertions at trial that he didn=t

learn until years later that he had actually killed Miles and

that he had left New York to get medical treatment for his

stomach ailment and not to flee from imminent arrest.

In addition, the references in Murden’s first Section 440

motion to his 1972 suicide attempt, some four years before he

murdered Miles, do little to alter the prejudice calculus.
Nothing in those papers suggested that the 1972 incident, which

involved a different woman and was fairly remote in time,

revealed any probability that the circumstances existing just

prior to Miles’s murder would trigger in Murden a homicidal

emotional disturbance. Nothing in those papers suggested that

Murden’s mental condition in 1976 made such a disturbance a

reasonable response to the circumstances that Murden described

having experienced on the day he killed Miles.

In sum, when the evidence that Murden put before the state

court in his first Section 440 motion is viewed cumulatively, it

does not show sufficiently that the evidence would have created

a reasonable probability at trial that Murden would have

prevailed on an EED defense. More significantly for this

petition, it certainly does not permit us to find that the state

court unreasonably applied Strickland.

CONCLUSION

For the foregoing reasons, the opinion of the district

court is hereby AFFIRMED.
05-0610-pr

HALL, Circuit Judge, concurring in the judgment:

I agree with the result reached by the majority and its

analysis of the exhaustion issues. I write separately to

consider the claim that Judge Weinstein, in taking the rare step

of issuing a certificate of appealability, invited this Court to

consider: “petitioner’s claim that he was denied the effective

assistance of trial counsel because [counsel] failed to have the

petitioner assessed by a psychologist or psychiatrist and failed

to investigate or prosecute an extreme emotional disturbance

defense.” I think the majority wrongly implies (without

explicitly saying as much) that Murden failed to satisfy both

prongs of Strickland’s inquiry. See Strickland, 466 U.S. at

687. In my view, as discussed below, the record demonstrates

that Murden proved in his first § 440 motion filed in state

court and on habeas review in the district court that trial

counsel’s performance was not objectively reasonable. I concur

in the mandate, however, because I agree with the majority that

Murden failed to show prejudice. Only for that reason would I

hold that the ineffective assistance of counsel claim cannot

succeed.
1 The majority’s discussion of the objective reasonableness

2 of trial counsel’s performance is limited to the conclusion that

3 it was entirely reasonable for counsel to pursue self-defense as

4 a primary defense. Maj. Op. at Discussion Section II. But this

5 conclusion assumes that any deficiency in pursuing the EED

6 defense is therefore excused. I do not believe that Strickland

7 condones deficient performance in investigating one defense if

8 another also happens to be available. See, e.g., Michael v.

9 Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (“Counsel’s duty to

10 investigate requires that counsel conduct a substantial

11 investigation into any of his client’s plausible lines of

12 defense.”) (citation and internal quotation marks omitted); see

13 also Eze v. Senkowski, 321 F.3d 110, 135-36 (2d Cir. 2003)

14 (ineffective assistance may be demonstrated where counsel

15 performs competently in some respects but not others). In

16 addition, in focusing only on the self-defense issue, the

17 majority does not consider the range of Murden’s allegations

18 properly before us: that trial counsel did not consult with

19 Murden regarding an EED defense, but should have done so; that

20 counsel did not interview witnesses for that defense, but should

21 have done so; and that counsel did not explore Murden’s past

22 attempted suicide, but should have done so.

23 Murden’s allegations are supported by the record. Pre-

24 trial transcripts show that counsel requested time to review the
1 file on the January 9, 1991 calendar call, and to “sit with the

2 defendant on one more occasion to prepare it.” 1/9/91 Hearing

3 Tr. at 6. Counsel’s notes indicate that he met with Murden for

4 one hour each on January 9 and on January 23, the day of the

5 next calendar call. At jury selection five days later (after a

6 three-day vacation), counsel was unable to name the witnesses he

7 intended to call until he consulted with his client. Although

8 counsel testified at the December 2004 hearing before the

9 district court that he did not remember whether he had met with

10 Murden at any other point before trial, he provided no evidence

11 to establish that he had done any investigation into the EED

12 defense.

13 Nothing in the record contradicts Murden’s assertions that

14 counsel did not consult with him about the EED defense or

15 otherwise pursue it. Even setting aside what has been asserted

16 about counsel’s pre-trial preparation, however, his actions at

17 trial proclaim that he did not prepare or investigate the EED

18 defense. Counsel neither mentioned the EED defense in his

19 opening statement, nor on cross-examination did he ever inquire

20 of witnesses about Murden’s emotional state. He did not call

21 any witnesses to bolster the defense. He introduced no evidence

22 of Murden’s psychiatric history or prior suicide attempt.

23 Unfortunately, it is little wonder that his request for an EED

45
1 charge at the conclusion of his case was denied for lack of

2 evidence supporting it.

3 “[C]ounsel has a duty to make reasonable investigations or

4 to make a reasonable decision that makes particular

5 investigations unnecessary.” Strickland, 466 U.S. at 691. It is

6 readily apparent that counsel here gave no thought to laying the

7 foundation for the EED defense until the end of the trial. Had

8 counsel adequately prepared for the case, he would have thought

9 to raise the defense from the beginning. Had he done some

10 investigation, it would have revealed that Murden had a

11 psychiatric history and that he had threatened suicide and to

12 hurt his previous girlfriend when she threw him out of their

13 apartment. We also know that at least one psychologist believes

14 Murden was suffering from a mood and personality disorder and

15 could not manage his emotions. It is logical to conclude that

16 timely investigation would have revealed similar expert

17 testimony for use at the trial.

18 I can conceive of no strategic reason for an attorney who

19 wishes to assert an EED defense to decide not to: (1) consult

20 with his client about the defense; (2) interview witnesses with

21 the defense in mind; and (3) explore a documented past suicide

22 attempt made by his client. See id. at 690 (a court “must judge

23 the reasonableness of counsel’s challenged conduct on the facts

24 of the particular case, viewed as of the time of counsel’s

46
1 conduct”). Moreover, if, despite what the record clearly

2 indicates to me, counsel did in fact do some investigation into

3 this defense, I do not understand what strategy would compel

4 counsel to avoid presenting the defense in opening statements or

5 introducing any evidence or testimony supporting the defense.

6 See Eze, 321 F.3d at 136 (noting that, when strategic

7 considerations do not account for a challenged decision by

8 counsel, the deficient-performance prong of Strickland will

9 likely be met); Hart v. Gomez, 174 F.3d 1067, 1071 (9th Cir.

10 1999) (finding it “inconceivable” that strategy played a part in

11 counsel’s decision not to introduce readily-available evidence

12 that would have corroborated a particular line of defense).

13 Accordingly, to the extent the state court and district court

14 found trial counsel’s performance effective despite this lack of

15 preparation, and to the extent the majority implicitly adopts

16 these finding, I respectfully disagree.

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