Petition for Writ of Certiorari — Franklin McPherson, Petitioner v. William Keyser, Jr., Superintendent, Sullivan Correctional Facility

Supreme Court briefDec 22, 2021

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____________________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

Franklin McPherson,

PETITIONER

William Keyser, Jr., Superintendent, Sullivan Correctional Facility,

RESPONDENT

____________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals,

Second Circuit

_____________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________

Jamesa J. Drake

Drake Law LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

Counsel of Record

Questions Presented

Does de novo review or AEDPA deference apply when a

habeas petitioner advances a claim of ineffective assistance of counsel as

cause to excuse a procedural default?

When a state court rules that a claim is procedurally

defaulted and “in any event” not meritorious, will this Court presume

that the claim was adjudicated on the merits?

List of Parties

All parties appear in the caption of the case on the cover page.

Petition for a Writ of Certiorari

Petitioner Franklin McPherson respectfully petitions for a writ of

certiorari to review the decision of the United States Court of Appeals for

the Second Circuit.

Opinion Below

The summary order of the Second Circuit under review is reported

at 2021 WL 4452078 (2d Cir. Sept. 29, 2021).

Statement of Jurisdiction

The Second Circuit issued its summary order on September 29,

2021.

On October 13, 2021, McPherson timely filed a petition for

rehearing, or in the alternative, for rehearing en banc. (CA2 Dkt. No.

108).

On November 19, 2021, the Second Circuit summarily denied

McPherson’s petition.

The time within which to file a petition for

certiorari extends until February 17, 2022.

iii

Table of Contents

Questions Presented ----------------------------------------------------------------- i

List Of Parties ------------------------------------------------------------------------- ii

Petition For A Writ Of Certiorari -------------------------------------------- iii

Opinion Below ------------------------------------------------------------------------ iii

Statement of Jurisdiction ------------------------------------------------------- iii

Statement of The Case ------------------------------------------------------------- 1

I. The Island Rock Nightclub ---------------------------------------------------- 1

II. The Driving ------------------------------------------------------------------------ 2

III. The Verdict And Sentence -------------------------------------------------- 7

IV. The Appellate Division’s Opinion ----------------------------------------- 7

V. The Court Of Appeals’ Decision ---------------------------------------------- 8

VI. The District Court’s Memorandum & Order -------------------------- 12

VII. The Second Circuit’s Summary Order ---------------------------------- 13

Reasons For Granting The Writ ---------------------------------------------- 15

I. The Circuits Are Divided As To Whether De Novo Review Or

Aedpa Deference Applies When A Habeas Petitioner Advances A

Claim Of Ineffective Assistance As Cause To Excuse A Procedural

Default (Rather Than As Independent Grounds For Habeas Relief). 15

A. Multiple Federal Courts Have Recognized The Split; The

Majority View Is That De Novo Review Applies. ------------------------- 19

The Minority View Is That De Novo Review Does Not Apply. 20

II. The Second Circuit’s Conclusion That Mcpherson’s Insufficiency

Claim Was Procedurally Barred Is At Odds With This Court’s CaseLaw. ------------------------------------------------------------------------------------- 21

III. This Case Is An Excellent Vehicle For Resolving Both Issues. -- 24

Conclusion ----------------------------------------------------------------------------- 26

Table of Authorities

Cases

Bowling v. Commonwealth, 981 S.W.2d 545 (Ky. 1998).........................26

Bowling v. Parker, 344 F.3d 487 (6th Cir. 2003) .............................. 26, 27

Coleman v. Thompson, 501 U.S. 722 (1991) ..................................... 25, 28

Davila v. Davis, 137 S.Ct. 2058 (2017) ...................................................21

Edwards v. Carpenter, 529 U.S. 446 (2000) ...........................................20

Evitts v. Lucey, 469 U.S. 387 (1985) .......................................................23

Fischetti v. Johnson, 384 F.3d 140 (3d Cir. 2004) ..................................20

Fry v. Pliler, 551 U.S. 112 (2007)............................................................20

Garner v. Lee, 908 F.3d 845 (2d Cir. 2018) .............................................25

Gray v. Hardy, 598 F.3d 324 (7th Cir. 2010) ..........................................24

Janosky v. St. Amand, 594 F.3d 39 (1st Cir. 2010) ................................23

Johnson v. Williams, 568 U.S. 289 (2013) ..............................................25

Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006) ........................................24

Martinez v. Ryan, 566 U.S. 1 (2012) ................................................. 21, 22

McPherson v. Keyser, 2021 WL 4452078 (2d Cir. Sept. 29, 2021) .... 19, 28

Michigan v. Long, 463 U.S. 1032 (1983) .................................................26

Murray v. Carrier, 477 U.S. 478 (1986) ..................................................20

People v. McPherson, 932 N.Y.S.2d 85 (2d Dep’t 2011), aff’d sub nom.

People v. Heidgen, 22 N.Y.3d 259 (2013) .............................................30

People v. Register, 60 N.Y.2d 270 (1983) ................................................16

Richardson v. Lemke, 745 F.3d 258 (7th Cir. 2014) ...............................24

Roberson v. Rudek, 446 Fed.Appx. 107 (10th Cir. 2011) ........................24

Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d 1338 (11th Cir.

2020) .....................................................................................................23

Trevino v. Thaler, 569 U.S. 413 (2013) ............................................. 21, 22

Visciotti v. Martel, 862 F.3d 749 (9th Cir. 2016) ....................................24

Visciotti v. Martel, 862 F.3d 749 (9th Cir. 2017) ....................................21

Wrinkles v. Buss, 537 F.3d 804 (7th Cir. 2008) ......................................24

Statutes

N.Y. Penal Law § 125.25(2) ....................................................................11

Section 2254(d)(1) ...................................................................................20

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214........................................................................16

Constitutional Provisions

U.S. CONST. amend. VI ..................................................................... 22, 23

vii

Statement of the Case

The Island Rock nightclub

In the early morning hours of October 19, 2007, McPherson and his

cousin, Roman Taylor, traveled in McPherson’s Lexus to the Rock Island

nightclub in Hempstead, New York. (Tr. 838, 847). There, they met up

with McPherson’s girlfriend, Crystal Green, and Green’s friend, Delroy

McCalla. (Tr. 833).

At around 3:15 a.m., the group went outside to the parking lot. (Tr.

850-851). McCalla testified that McPherson looked “okay” and he “didn’t

seem drunk.” (Tr. 853). Taylor, on the other hand, looked “pretty wasted”

and McCalla and McPherson had to help him walk. (Tr. 851, 853-54).

Soon thereafter, McPherson realized he lost something, searched

for it, and grew angry when he was unable to find what he was looking

for. (Tr. 857, 859, 863). Things started to unravel from there, and

McCalla decided it was time to leave. (Tr. 865). The group put Taylor in

the backseat of McPherson’s car. (Tr. 870-74). McCalla got into his own

car, and he waited for Green, who was arguing with McPherson. (Tr.

866-67, 869, 873). At the time, McPherson was searching for something

in the trunk of his car. (Tr. 866-67). McCalla heard three gunshots, but

never saw anything in McPherson’s hands. (Tr. 874-75, 880). McCalla

and Green left. (Tr. 877-79). Eventually, the police went to the nightclub

to investigate a report about shots being fired, and they found five 9millimeter shell casings in the parking lot. (Tr. 884-88).

II.

The driving

At around 3:30 a.m., several witnesses saw McPherson’s Lexus

driving westbound on the eastbound lane of Southern State Parkway.

(See e.g. Tr. 1026, 1065, 1150). Witnesses said that the driver of the car

maintained its lane, while driving anywhere from 70 to 80 miles per hour.

(See e.g. Tr. 432, 1152-53, 1167, 1216; 1044, 1069, 1167). One witness

missed being hit by the Lexus by mere inches, and he had to swerve to

get out of the way; the Lexus appeared to make no effort to slow down or

avoid other cars. (Tr. 1153, 1167-68, 1273).

One witness, who was

driving a Mack truck, blew his air horn, but the Lexus made no

adjustment; it didn’t slow down. (Tr. 1058, 1074-75).

The record is devoid of any evidence about precisely how the Lexus

entered the Southern State Parkway, but on the exit ramp nearest the

nightclub, there are “Do Not Enter” signs and two “Wrong-Way” signs.

(Tr. 1208). On the Parkway, between that ramp and the location of the

accident, there were eight “Wrong-Way” signs. (Tr. 988-89). On that

route, the Lexus would have driven by the blank, gray backs of 21 large

signs intended for eastbound drivers. (Tr. 988-94).

Near Exit 13 on the eastbound side of the Parkway, witnesses

driving behind a Jeep Grand Cherokee saw the Jeep explode and flip

airborne in front of them.

(Tr. 442, 1216-17).

An accident

reconstructionist determined that the crash was consistent with a headon collision, and there was no evidence of breaking by either the operator

of the Jeep or the Lexus. (Tr. 1116). The Jeep caught fire, and was

quickly engulfed in flames.

(Tr. 446, 506).

In due course, Patricia

Burgess identified the badly burned remains of her brother, Leslie

Burgess, as the decedent driver of the Jeep. (Tr. 670).

The Lexus was badly damaged, as well. McPherson was in the

driver’s seat, trapped by the dashboard and steering column, which

pushed against his lap; he was bloody and barely conscious. (Tr. 479,

482). Taylor was in the backseat, conscious, but not “getting up.” (Tr.

880). The car smelled of alcohol; McPherson smelled of alcohol, too. (Tr.

965-66, 1265, 1308). McPherson’s blood alcohol content, about an hour

after the accident, measured .19%. (Tr. 701). This works out to about

ten drinks for the “average” person (for a male, that’s someone who is five

foot ten inches, and one hundred and eighty pounds). (Tr. 707-8). A

person McPherson’s size, which is larger than “average,” would take

about “eleven or twelve” drinks to reach a .19% blood alcohol content.

(Tr. 708, 1208).1

The jury also heard uncontroverted evidence from the prosecution’s

expert witness, Dr. Closson. According to Dr. Closson, a blood alcohol

content of .19% would negatively affect a person’s “cognitive abilities,

meaning the thought process, the ability to think clearly and respond to

questions….

The person’s psychomotor functions, such as moving

muscles and responding to various stimuli, would be negatively affected.

The ability to perceive objects in the environment would be negatively

affected.

And then the ability to respond to those objects would be

negatively affected.” (Tr. 710-11).

Police inventoried the contents of the car at the scene; in the trunk, they

found 41 nine-millimeter bullets, eight of which were in a partially loaded

magazine; in the front passenger seat area, they found a functioning 9

millimeter handgun with an unloaded magazine. (Tr. 557-560). Forensic

testing on the weapon suggested that bullet casings recovered from the Island

Rock Club parking lot could have been fired by the gun recovered from

McPherson’s car. (Tr. 886-888, 941-947). The police also found a small bag of

cocaine under the front passenger seat. (Tr. 618). No drugs were found in

McPherson’s blood sample. (Tr. 701).

There’s more. Dr. Closson explained that an intoxicated person’s

vision becomes blurred and he or she develops “tunnel vision,” meaning

he or she cannot see as effectively to either side,” but essentially sees only

“straight ahead.” (Tr. 712-13). An intoxicated person’s perception and

responses to stimuli are delayed; whereas a sober person might respond

to stimuli in “a fraction of a second,” an intoxicated person responding to

the same stimuli might take one to three seconds to react. (Tr. 713-14).

Also, an intoxicated person’s ability to perform “divided attention

tasks,” such as driving, is “most affected” by alcohol. (Tr. 717). Driving

requires equal attention to steering, acceleration, braking, direction

signals, and responding to objects in the environment, but an intoxicated

person may devote all of his or her attention to only one or two of those

tasks. (Tr. 717-18). An intoxicated person “may concentrate on just the

steering wheel, may concentrate on just the road directly ahead of him or

her, at the expense of how fast they’re going, other objects and the

environment.” (Tr. 718).

McPherson drove into oncoming traffic at a high rate of speed for

about five miles, during which time he passed eight “wrong way” signs

and the backs of 21 large signs that could only be read by drivers heading

in the proper direction. Heidgen, 22 N.Y.3d at 273. The prosecution

posited that during this time, McPherson maintained his lane position

without swerving.

(Tr. 432, 1152-53, 1167, 1216; but see Tr. 1039).

Nothing in the record suggests that McPherson did these things because

he was aware of other motorists and didn’t care whether they lived or

died.

All of the evidence – most notably, the evidence that the

prosecution introduced through Dr. Closson – supports a very different

conclusion:

• in his intoxicated state, McPherson’s thought process was

negatively affected, which may have caused him to enter the

roadway going the wrong direction;

• the effects of alcohol limited his field of vision, so that he was “not

able to effectively see objects to either side of him,” such as road

signs;

• the effects of alcohol made it so that McPherson could not effectively

devote his attention equally to the divided tasks inherent in

driving, so he concentrated on maintaining his lane at the expense

of how fast he was going, or other objects in the environment.

III. The verdict and sentence

A jury found McPherson guilty of, inter alia, murder in the second

degree, N.Y. Penal Law § 125.25(2), “depraved indifference murder,” but

it plainly struggled to decide whether McPherson possessed a culpable

mental state. During deliberations, the jurors asked for, inter alia, a

read-back of Dr. Closson’s testimony on the effects of alcohol and the

elements of depraved indifference murder.

(Tr. 1455-46, 159).

McPherson was principally sentenced to serve 25 years to life in prison.

IV.

The Appellate Division’s opinion

McPherson appealed his depraved indifference murder conviction

to the Appellate Division, which affirmed it, concluding that McPherson’s

insufficiency-of-the-evidence argument was unpreserved for appellate

review. McPherson 89 A.D.3d at 754. The court went on to decide that

“[i]n any event, viewing the evidence in the light most favorable to the

prosecution…[the

evidence]

was

legally

sufficient

establish

[McPerson’s] guilt…beyond a reasonable doubt.” Id. at 754. In reaching

this conclusion, the court surveyed its extensive case-law about the

meaning of “depraved indifference,” and it catalogued the trial evidence

that it believed supported that mental state. Id. at 754-58. Without

elaboration, the court summarily concluded that McPherson “was not

deprived of the effective assistance counsel, as defense counsel provided

meaningful representation.” Id. at 758-59. Judge Belen dissented on the

ground that “[t]he majority’s attempt to distinguish” its prior depraved

indifference case-law “is unavailing.” Id. at 763.

The Court of Appeals’ decision

McPherson further appealed to the Court of Appeals, again arguing

both that he received ineffective assistance from his trial attorney, who

failed to move to dismiss the depraved indifference charge, and that the

evidence was insufficient to support that conviction.

The Court of

Appeals agreed with McPherson that his attorney “should have moved to

dismiss the charge of depraved indifference.” Heidgen, 22 N.Y.3d at 278.

However, the court concluded that counsel wasn’t ineffective because “a

motion to dismiss would not have been successful.” Id. at 279. The court

reasoned:

The People established that defendant became enraged

after losing something and fired off several gunshots. He then

drove at excessive speed, in the wrong direction on the

parkway for about five miles. During that time – more than

four minutes – defendant did not appear to apply his brakes

and several oncoming cars swerved to avoid him. He also

passed numerous signs that should have alerted him that he

was traveling in the wrong direction. In addition, he did not

slow down or pull over in response to a truck driver sounding

his air horn. There was, under the circumstances, ample

evidence supporting the conclusion that defendant was aware

that he was driving on the wrong side of the road and

continued to do so with complete disregard for the lives of

others.

Therefore, although the motion to dismiss should

have been made, we are persuaded that defendant was not

prejudiced and otherwise received meaningful representation.

Id. at 279. The court held: “Since there was no reasonable probability

that the result would have been different, [McPherson’s] claim also fails

under the federal standard (see Strickland).” Id. at 279 (full citation to

Strickland omitted).

In the very next breath, the court lamented that:

[T]he most difficult aspect of all these cases is whether

there was sufficient evidence that the defendants were aware

of and appreciated the risks caused by their behavior –

specifically...McPherson, that [he] knew [he was] driving on

the wrong side of the parkway and proceeded regardless.

Id. at 279. The court observed that “depraved indifference can be proved

circumstantially,” and that:

Here, in each case, a rational jury could have found that

the defendant, emboldened by alcohol…, appreciated that

he…was engaging in conduct that presented a grave risk of

death and totally disregarded that risk, with catastrophic

consequences.

Id. at 279.

Judge Smith dissented. He began by observing both that “depraved

indifference to human life is a very unusual state of mind,” and that

“experience shows that juries, especially in cases with inflammatory

facts, will often find depraved indifference where the evidence does not

support it.” Id. at 281. Consequently, the court has “reversed many

convictions in recent years because the proof of this mens rea was

insufficient.” Id. at 281. Here, he believed, evidence of a depraved

indifferent mindset was lacking:

[McPherson] became extremely drunk, drove for miles

the wrong way on a divided highway, and caused a fatal

accident.

The simplest and likeliest inference from the

evidence is that [he was] so drunk that [he] did not know what

[he was] doing.

Why, after all, would anyone do such a

dangerous thing on purpose?

Id. at 281. He continued:

Anyone who drives the wrong way on a divided highway must

either have chosen a bizarre way of committing suicide or else

by prey to some grandiose illusion that all the other cars will

get out of his way. These records contain no more than hints

that…McPherson was in such an extraordinary state of mind.

Id. at 282. Instead, “[i]t is much more likely that, in his drunken rage,

[McPherson] did not focus on his surroundings after he started driving.”

Id. at 283. According to Judge Smith, the fact that McPherson drove the

wrong way for miles, ignoring signs and things that should have alerted

him, did not support an inference that he knew what he was doing;

rather, “it supports more strongly the inference that – as the blood test

proved – [he] was very drunk.” Id. at 283.

Judge Read also dissented on the ground that the evidence was

insufficient to prove that McPherson had the requisite culpable mental

state.

She argued that the majority “has resurrected the Register

standard for cases in which intoxicated drivers kill innocent people, or at

least it has done so here in order to salvage [McPherson’s] conviction[].”

Id. at 285 (citing People v. Register, 60 N.Y.2d 270 (1983), discussed in

greater detail, infra).

VI.

The district court’s Memorandum & Order

McPherson

renewed

his

ineffectiveness

and

insufficiency

arguments in a petition for writ of habeas corpus. The district court

decided that McPherson’s insufficiency argument was procedurally bared

because the Appellate Division and Court of Appeals rejected them as

unpreserved, and that even if counsel’s ineffectiveness could establish

cause to overcome the bar, McPherson could not demonstrate prejudice

because any motion for dismissal was not well-taken. (ECF # 19, p. 1112). Applying AEDPA2 to the merits of McPherson’s insufficiency claim,

the district court concluded that the Court of Appeals determination that

“defendant, emboldened by alcohol…appreciated that he…was engaging

in conduct that presented a grave risk of death and totally disregarded

that risk, with catastrophic consequences,” was “not objectively

reasonable.” (ECF # 13, p. 18). The district court denied McPherson’s

request for a certificate of appealability. The Second Ciruit granted that

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (“AEDPA”). AEDPA is discussed in much greater

detail, infra.

request, limited to the issues of ineffectiveness and insufficiency

regarding McPherson’s depraved indifference murder conviction.

VII. The Second Circuit’s summary order

On the issue of insufficiency-of-proof, the Second Circuit observed

that, “at the conclusion of state proceedings, both state appellate courts

had concluded that the insufficiency claims were procedurally defaulted,

but both had also given the merits of those claims substantial

consideration – the Appellate Division in the form of an alternative

holding, and the Court of Appeal as part of its prejudice analysis under

McPherson’s ineffective assistance of counsel claim.” McPherson, 2021

WL 4452078, *2. Citing to Harris v. Reed, 489 U.S. 255, 262 (1989), the

Second Circuit concluded that even though the state courts reached the

merits of the claim as an alternative holding, McPherson’s claim was

procedurally barred because of the state courts’ adequate and

independent finding of procedural default.

Id.

Taking a belt-and-

suspenders approach to the issue, the Second Circuit clarified that “even

if we were to ignore the procedural bar, we would reject McPherson’s

insufficiency claim” because:

[M]ultiple items of evidence adduced at McPherson’s trial

could have led a juror to rationally conclude that he possessed

the required mens rea, including: that he helped place a more

intoxicated friend in a car; and that he ignored multiple

indications he was driving the wrong way, such as wrong way

signs, backward signs, near-misses with oncoming traffic, and

a truck that blew its airhorn at him for several seconds.

Id. at *3.

On the issue of trial counsel’s ineffectiveness, the Second

Circuit recognized that the state courts found that counsel

performed deficiently for failing to move to dismiss the depraved

indifference murder charge, but that McPherson was not prejudiced

because “a motion to dismiss would not have been successful.” Id.

at *4.

Importantly, the Second Circuit held:

[W]e analyze McPherson’s ineffective assistance claim

under the AEDPA standard explicitly, since we are evaluating

it as an independent ground for habeas relief. That is, we ask

not merely whether the state court’s application of Strickland

v. Washington, 466 U.S. 668 (1984) was incorrect, but whether

“[the state court] applied Strickland to the facts…in an

objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685,

699 (2002).

The parties disagree as to “whether de novo

review or AEDPA deference applies when a habeas petitioner

advances a claim of ineffective assistance as cause to excuse

procedural default (rather than as an independent grounds

for habeas relief).” Tavarez v. Larkin, 814 F.3d 644, 650 (2d

Cir. 2016).

This is a matter about which our sister

Circuits have disagreed, and on which we have not yet

spoken definitively. See id. at 650 n.3 (summarizing the

circuit split). It is unnecessary for us to explicitly invoke

one standard of review or another here. We find in this case

that whether the ineffective assistance claim is evaluated de

novo or with AEDPA deference, it fails or the same reason:

McPherson is unable to establish that he was prejudiced by

his trial attorney’s alleged ineffectiveness. Id. at 650.

McPherson v. Keyser, 2021 WL 4452078, *2, n.1 (2d Cir. Sept. 29,

2021).

Reasons for Granting the Writ

The Circuits are divided as to whether de novo review or

AEDPA deference applies when a habeas petitioner

advances a claim of ineffective assistance as cause to

excuse a procedural default (rather than as independent

grounds for habeas relief).

If McPherson’s insufficiency argument was not decided on the merits

by the Appellate Division, but rather was decided on a state law

procedural ground “independent of the federal question and adequate to

support the judgment,” Coleman, 501 U.S. at 729, then McPherson must

demonstrate “cause for the procedural default and prejudice attributable

thereto.” Harris, 489 U.S. at 262.

To establish cause sufficient to excuse a procedural default,

McPherson pointed to his trial attorney’s ineffectiveness in failing to

preserve the sufficiency claim. Edwards v. Carpenter, 529 U.S. 446, 45051 (2000). McPherson exhausted his IAC claim in the state courts, and

the state courts all rejected that claim on the merits. Murray v. Carrier,

477 U.S. 478, 488-89 (1986).

On habeas review, a court may consider a petitioner’s IAC claim as

cause to overcome a procedural default without the application of

AEDPA’s limitations on relief. This is so for three reasons.

One, the plain language of the statute supports that view. The text

of § 2254(d) makes clear that it applies to a “claim adjudicated on the

merits in State court.”

A federal habeas court’s cause-and-prejudice

analysis is something markedly different than a “claim adjudicated on

the merits in State court.”

See Johnson, supra (defining “claim

adjudicated on the merits”); Fry v. Pliler, 551 U.S. 112, 119 (2007)

(Section 2254(d)(1) “sets forth a precondition to the grant of habeas

relief.”); see also Fischetti v. Johnson, 384 F.3d 140, 154-55 (3d Cir. 2004)

(“AEDPA does not establish a statutory high hurdle for the issue of

cause.”); Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2017) (same).

There is no justification for construing the statutory text to apply to

something other than a “claim adjudicated on the merits” and McPherson

can conceive of none.

Two, this Court has repeatedly reviewed IAC claims to determine

whether they justify excusing a procedural default, and this Court has

never once applied an AEDPA-style “unreasonable application” test to

determine the existence of cause. Rather, this Court has made its cause

determination based on whether the denial of counsel was “an

independent constitutional violation.” Coleman, 501 U.S. at 755; Davila

v. Davis, 137 S.Ct. 2058, 2065 (2017). This is true even when the IAC

claim is not attached to a constitutional right, as in the case of

ineffectiveness in a collateral proceeding. See Trevino v. Thaler, 569 U.S.

413, 423-24 (2013) (applying Martinez without mention of an AEDPA test

for determining cause); Martinez v. Ryan, 566 U.S. 1, 17 (2012) (outlining

the criteria for when ineffectiveness of a petitioner’s attorney in his first

state collateral proceeding excuses a procedural default, without mention

of an AEDPA test).3

Three, application of the independent and adequate state ground

doctrine is “grounded in concerns of comity and federalism.” Coleman,

501 U.S. at 730.

Insofar as an IAC cause-and-prejudice analysis is

concerned, there are no federalism or comity interests to abide. This is

so because “[w]here a petitioner defaults on a claim as a result of the

denial of the right to effective assistance of counsel, the State, which is

responsible for the denial as a constitutional matter, must bear the cost

of any resulting default and the harm of state interests that federal

habeas review entails.” Id. at 754. “A different allocation of costs” applies

when the failure to follow state procedural rules is attributable to

something other than counsel’s ineffectiveness, or in cases where the

State “has no responsibility” for the Sixth Amendment deprivation. Id.

at 754; U.S. CONST. amend. VI. But that has no application here because

McPherson relies on IAC by trial counsel as cause to excuse a default,

and as Coleman makes clear, this implicates interests different than

Coleman, Trevino, and Martinez make plain that IAC in violation

of the Sixth Amendment establishes cause to excuse the procedural

default on some claim other than a stand-alone IAC claim.

those that motivate the strictures of AEDPA. Id. at 753-55; see also Evitts

v. Lucey, 469 U.S. 387, 396 (1985) (ineffective assistance of counsel that

rises to the level of a Sixth Amendment violation constitutes an “action

of the State.”).

Notwithstanding the foregoing, the federal appellate courts have

observed – for at least a decade – that they are divided on the issue of

whether AEDPA deference applies in the cause and prejudice context.

See e.g. Janosky v. St. Amand, 594 F.3d 39, 44-45 (1st Cir. 2010)

(recognizing the split); Winston v. Kelly, 624 F.Supp.2d 478, 497 n.6

(W.D.Va. 2008) (same).

Multiple

Multiple federal courts have recognized the split;

the majority view is that de novo review applies.

federal

appellate

courts

have

recognized

their

disagreement on this issue. The First and Eleventh Circuits have refused

to enter the fray. Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d

1338, 1365 n.16 (11th Cir. 2020) (noting the split, but refusing to “address

the conflict”); Janosky v. St. Amand, 594 F.3d 39, 45 (1st Cir. 2010)

(recognizing the split and asumming without deciding that de novo

review applies). Now, in the instant case, the Second Circuit has added

itself to that mix.

The Third, Sixth, and Ninth Circuits have squarely decided that

IAC claims in the cause-and-prejudice context are “in no way affected by

AEDPA.” Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016); Joseph v.

Coyle, 469 F.3d 441, 459 (6th Cir. 2006) (“Although [petitioner] must

satisfy the AEDPA standard with respect to his independent IAC claim,

he need not do so to the claim of ineffective assistance for the purpose of

establishing cause.”); Fischetti v. Johnson, 384 F.3d 140, 154-55 (3d Cir.

2004) (same).

The minority view is that de novo review does

not apply.

In Wrinkles v. Buss, 537 F.3d 804, 813 (7th Cir. 2008), the Seventh

Circuit applied the AEDPA standard to an IAC claim for purposes of

establishing cause. The Seventh Circuit has continued to adhere to that

view, while recognizing the disagreement with its sister courts.

Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014); Gray v. Hardy,

598 F.3d 324, 330-31 (7th Cir. 2010). The Seventh Circuit has even

intimated that the Tenth Circuit has agreed with its approach. Roberson

v. Rudek, 446 Fed.Appx. 107, 109 (10th Cir. 2011) (affirming the district

court’s invocation of AEDPA deference in the context of a denial of a

certificate of appealability).

Guidance from this Court is needed to resolve the division.

Disagreement has existed for over a decade, with no sign of movement

from the Seventh Circuit. And, in light of the split, appellate courts have

noted their own reluctance to stake a position. This is untenable in light

of the frequency with which state inmates seek federal habeas review on

procedurally defaulted claims and accompanying IAC claims as an

asserted basis for excusing the default.

II.

The Second Circuit’s conclusion that McPherson’s

insufficiency claim was procedurally barred is at odds

with this Court’s case-law.

McPherson’s insufficiency argument was grounded in federal law,

i.e. his entitlement under the Due Process Clause to evidence legally

sufficient to sustain a conviction. A judgment denying a federal claim is

presumed to have been “adjudicated on the merits.” Johnson v. Williams,

568 U.S. 289, 293 (2013). This presumption may be rebutted, but only if

the state court has “clearly and expressly stated that its judgment rested

on a procedural bar.” Garner v. Lee, 908 F.3d 845, 859 (2d Cir. 2018)

(cleaned up). As this Court explained in Coleman v. Thompson, 501 U.S.

722, 734-35 (1991):

[F]ederal courts on habeas corpus review of state

prisoner claims, like this Court on direct review of state court

judgments, will presume that there is no independent and

adequate state ground for a state court decision when the

decision “fairly appears to rest primarily on federal law, or to

be interwoven with the federal law, and when the adequacy

and independence of any possible state law ground is not clear

from the face of the opinion.” Michigan v. Long, 463 U.S.

1032, 1040-1 (1983). In habeas, if the decision of the last state

court to which the petitioner presented his federal claims

fairly appeared to rest primarily on resolution of those claims,

or to be interwoven with those claims, and did not clearly and

expressly rely on an independent and adequate state ground,

a federal court may address the petition.

(Full citation to Long added).

The Sixth Circuit recognized this rule in Bowling v. Parker, 344

F.3d 487 (6th Cir. 2003), where the Kentucky Supreme Court, in its

decision, noted that Bowling’s claims were raised only in struck

supplemental pleadings, but then went on to consider the merits of those

claims, stating, “Notwithstanding that his supplemental motion was

struck by the trial court, in the interests of judicial economy we will

review the seven additional claims of ineffective assistance of counsel

raised in the motion.” Id. at 498 (quoting Bowling v. Commonwealth, 981

S.W.2d 545, 551 (Ky. 1998)).

The Sixth Circuit noted that “[t]here are two reasonable

interpretations to which [the Kentucky Supreme Court’s] statement is

susceptible.”

Id. at 498.

The court may have been relying on the

procedural default, in which case, the dismissal of the claims on the

merits would be considered an alternative holding, or the court may have

been using the word “notwithstanding” to ignore the issue of procedural

default and consider the claims on the merits.

Id. at 498.

Both

interpretations, the Sixth Circuit said, are “eminently plausible.” Id.

This ambiguity led the Sixth Circuit to conclude: “Ultimately, the fact

that both interpretations are sensible settles the issue in Bowling’s favor,

for there must be unambiguous state-court reliance on a procedural

default for it to block our review.” Id. at 499.

So, too, here. The Appellate Division’s “in any event” ruling did not

indicate unambiguous reliance on a state procedural rule to resolve the

claim, and neither did the Court of Appeals’ consideration of the issue,

cloaked as an ineffective-assistance-of-counsel claim, rather than

insufficiency-of-the-evidence. The Second Circuit erred by concluding

that McPherson’s insufficiency claim was procedurally barred in light of

the presumption articulated in Coleman v. Thompson.4 Correction by

this Court is necessary to prevent a rift from developing between, at a

minimum, the Second and Sixth Circuits.

III. This case is an excellent vehicle for resolving both

issues.

McPherson has a genuinely compelling claim that the prosecution

failed to present legally sufficient evidence to sustain a conviction, which

only reinforces the significance of the procedural lens through which his

claim is evaluated.

In New York, in order to convict of depraved indifference murder,

the prosecution must first prove that the defendant was thinking about

the lives of others. People v. Feingold, 7 N.Y.3d 288, 295-96 (2006). The

jurors could not infer that McPherson was thinking about others from the

manner in which he drove. McPherson ignored other motorists, and he

seemed impervious to the blast of a loud air horn. This does not equate

with indifference as to whether or not others lived or died. “Ignoring

Second Circuit noted that even if it were to “ignore the procedural bar,” it

would still reject McPherson’s insufficiency claim on the merits. McPherson, 2021

WL 4452078, at *3. However, McPherson respectfully submits that reconsideration

remains appropriate given that the issue is likely to arise in future cases.

warnings that would alert a sober person is what drunk people do.”

Heidgen, 22 N.Y.3d at 287 (Smith, J., dissenting).

On top of that, the evidence showed that McPherson had a blood

alcohol content more than twice the legal limit which, as the prosecution’s

expert explained, impacted McPherson’s ability to perceive and respond

to objects in the environment.

(See Blue Br. 50).

According to the

prosecution’s expert, intoxication causes “tunnel vision” such that a

motorist may concentrate on just the steering wheel, or it may cause the

driver to concentrate on just the road directly ahead of him or her, at the

expense of how fast they’re going or other objects in the environment.

This is nothing new: the law recognizes that voluntary intoxication

adversely impacts a person’s ability to form a culpable mental state.

McPherson’s poor driving establishes extreme recklessness, but that

alone is insufficient to establish the requisite mens rea.

Nothing in the record, viewed in the light most favorable to the

prosecution, could support (beyond a reasonable doubt) the inference that

McPherson was thinking about others.

(quoting Payne, 3 N.Y.3d at 272).

Feingold, 7 N.Y.3d at 293

McPherson was laser-focused on

himself, his troubles, and his own self-preservation.

The closeness of this question is underscored by the splintered

nature of the state court decisions. His case drew strong dissenting

decisions on the sufficiency-of-the-evidence issue and ineffectiveness

issues in both the Appellate Division and the Court of Appeals. See

People v. McPherson, 932 N.Y.S.2d 85 (2d Dep’t 2011), aff’d sub nom.

People v. Heidgen, 22 N.Y.3d 259 (2013).

Conclusion

This Court should grand the writ of certiorari.

Respectfully submitted,

FRANKLIN McPHERSON

By his attorney:

/s/ Jamesa J. Drake

Jamesa J. Drake

Drake Law LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

Appendix

Second Circuit Summary Order……………………………………………..A

Order denying rehearing, rehearing en banc………………………...……B

McPherson v. Keyser, Not Reported in Fed. Rptr. (2021)

2021 WL 4452078

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit.

Franklin MCPHERSON, Petitioner-Appellant,

William KEYSER, Jr., Superintendent, Sullivan

Correctional Facility, Respondent-Appellee.

20-161-pr

September 29, 2021

Appeal from an order and judgment of the United States

District Court for the Eastern District of New York (Sandra

J. Feuerstein, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS

HEREBY ORDERED, ADJUDGED, AND DECREED

that the order and judgment of the District Court be and

hereby are AFFIRMED.

Attorneys and Law Firms

FOR PETITIONER-APPELLANT: Jamesa J. Drake, Drake

Law, LLC Auburn, ME.

FOR RESPONDENT-APPELLEE: Maureen McCormick,

Assistant District Attorney, (Tammy J. Smiley, Judith R.

Sternberg, Jason R. Richards, Assistant District Attorneys,

of counsel), for Joyce A. Smith, Acting District Attorney,

Nassau County, Mineola, NY.

PRESENT: José A. Cabranes, Rosemary S. Pooler, Joseph F.

Bianco, Circuit Judges.

SUMMARY ORDER

*1 Petitioner Franklin McPherson (“McPherson”) appeals

from a November 15, 2019 order and a November 19, 2019

judgment of the District Court denying his petition for a writ

of habeas corpus. In September 2008, following a jury trial

in New York state court, McPherson was convicted of, inter

alia, murder in the second degree (“depraved indifference

murder”). He appealed to the New York Supreme Court,

Appellate Division, Second Judicial Department, where his

conviction was affirmed, with one justice dissenting. He

then appealed to the New York Court of Appeals, where

his conviction was affirmed with two judges dissenting. He

sought and was denied review in the United States Supreme

Court. McPherson then petitioned for a writ of habeas corpus

in the District Court. His petition was denied and the District

Court declined to issue a certificate of appealability. We

granted a certificate of appealability, limiting our review to

two issues: (1) “whether the evidence at trial was sufficient to

establish beyond a reasonable doubt that [McPherson] acted

with the mens rea necessary to support his conviction for

second-degree murder,” and (2) “whether ... [McPherson's]

counsel was ineffective in failing to move to dismiss his

second-degree murder count.” Resp't Suppl. App. 1. We

assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

We review a district court's denial of a petition for a writ of

habeas corpus de novo.

Lynch v. Dolce, 789 F.3d 303, 310–

28 U.S.C. § 2254, as amended

11 (2d Cir. 2015). Under

by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we review a claim that was decided on the

merits in a state court only for an “objectively unreasonable”

application of clearly established federal law.

Rivas v.

Fischer, 780 F.3d 529, 546 (2d Cir. 2015); see

§ 2254(d).

28 U.S.C.

(1)

McPherson argues that there was insufficient evidence to

establish the required mens rea of depraved indifference

necessary to sustain his second-degree murder conviction.

McPherson first raised this argument on direct appeal to the

Appellate Division, and that court held that the claim was

procedurally defaulted, since McPherson had not preserved

it for appellate review at trial. People v. McPherson, 932

N.Y.S.2d 85, 87 (2d Dep't 2011), aff'd sub nom.

People v.

Heidgen, 22 N.Y.3d 259 (2013). “In any event,” the Appellate

Division held, the evidence at trial “was legally sufficient

to establish the defendant's guilt ... beyond a reasonable

doubt.” Id. at 87. The Court of Appeals subsequently

recognized that McPherson had failed to preserve his

McPherson v. Keyser, Not Reported in Fed. Rptr. (2021)

2021 WL 4452078

insufficiency claim. See

Heidgen, 22 N.Y.3d at 274, 278.

However, the Court of Appeals did analyze the merits of

the insufficiency argument in the context of McPherson's

ineffective assistance of counsel claim, concluding that “there

was no reasonable probability that the result would have been

different” had counsel filed a motion to dismiss the depraved

indifference murder charge, because “[t]here was, under the

circumstances, ample evidence supporting” the jury's mens

rea finding.

Id. at 279. Therefore, the Court of Appeals

held, McPherson “was not prejudiced” by his trial counsel's

failure to raise the insufficiency claim. Id.

*2 In other words, at the conclusion of state proceedings,

both state appellate courts had concluded that the

insufficiency claims were procedurally defaulted, but both

had also given the merits of those claims substantial

consideration—the Appellate Division in the form of an

alternate holding, and the Court of Appeals as part of its

prejudice analysis under McPherson's ineffective assistance

of counsel claim.

“[A]n adequate and independent finding of procedural default

will bar federal habeas review” of the underlying claim.

Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)

(quoting

Harris v. Reed, 489 U.S. 255, 262 (1989)).

This is true even where, as in the instant case, the state

court “reach[es] the merits of a ... claim in an alternative

holding.” Id. (emphasis in original) (quoting

Harris, 489

U.S. at 264 n.10). The New York courts’ application of

their rules regarding the preservation of legal issues for

appellate review in criminal cases—codified at N.Y. Crim.

Proc. Law § 470.05[2]—constitute independent and adequate

state grounds for their rejection of McPherson's insufficiency

claim. See

Jimenez v. Walker, 458 F.3d 130, 136 (2d

Cir. 2006) (“[F]ederal courts may not review the judgment

of a state court that ‘rests on a state-law ground that is

both “independent” of the merits of the federal claim and

an “adequate” basis for the court's decision.’ ” (quoting

Harris, 489 U.S. at 260)); see also

Garvey v. Duncan,

485 F.3d 709, 720 (2d Cir. 2007) (“[T]he procedural bar of

§ 470.05(2) constitutes an independent and adequate state

ground for the Appellate Division's holding.”).

In light of this, the District Court found McPherson's

insufficiency claim procedurally barred. We agree that it is.

McPherson argues that he can overcome this procedural

bar through his ineffective assistance of counsel claim.

That is, separate from the ineffective assistance claim

that McPherson advances on its own merits as grounds

for habeas relief (addressed in the next Part of this

order), McPherson also argues that his counsel's ineffective

assistance “demonstrate[s] cause for his state-court default ...

and prejudice therefrom,” allowing a “federal habeas court

[to] consider the merits of [his] claim.”

Carmona v. U.S.

Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001) (quoting

Edwards v. Carpenter, 529 U.S. 446, 451 (2000)). We

disagree. McPherson's ineffective assistance claim itself fails

as we discuss in Part 2 of this order. 1 And “ineffective

assistance can establish cause for a procedural default only if

it is itself a valid constitutional claim.”

Aparicio v. Artuz,

269 F.3d 78, 99 n.10 (2d Cir. 2001) (citing

Edwards, 529

U.S. at 451). It therefore is of no help to McPherson in

overcoming his procedural bar.

*3 Moreover, even if we were to ignore the procedural

bar, we would reject McPherson's insufficiency claim. “[W]e

may affirm the district court's denial of [McPherson's] habeas

petition on any ground available in the record.

Tavarez,

814 F.3d at 650 n.4 (citing Cornell v. Kirkpatrick, 665 F.3d

369, 378 n.6 (2d Cr. 2011)). Here, the Appellate Division

found that although McPherson's insufficiency claim was

procedurally barred, it was, “[i]n any event,” without merit.

McPherson, 932 N.Y.S. 2d at 87. In addition, as noted,

the Court of Appeals did indicate that the insufficiency

claim lacked merit in rejecting McPherson's ineffective

assistance of counsel claim. See

Heidgen, 22 N.Y.3d at

279. “[B]ecause the [appellate courts’] ruling[s] ... indicate[ ]

‘merits’ consideration, we [may] assume without deciding

that there was an ‘adjudication on the merits’ in the state

courts, and ... analyze whether habeas relief is warranted

under the deferential

§ 2254(d) standard.”

Cotto

v. Herbert, 331 F.3d 217, 231 (2d Cir. 2003). Applying

that standard, we can readily conclude that McPherson has

failed to establish that the Court of Appeals’ rejection of

his insufficiency claim on the merits was an unreasonable

McPherson v. Keyser, Not Reported in Fed. Rptr. (2021)

2021 WL 4452078

application of clearly established Supreme Court law. See

28 U.S.C. § 2254(d).

claim were not barred, it would not succeed as grounds for

habeas relief.

“[A] defendant challenging the sufficiency of the evidence

bears a heavy burden. On such a challenge, we view the

evidence in the light most favorable to the government,

drawing all inferences in the government's favor and deferring

to the jury's assessments of the witnesses’ credibility.”

We turn next to McPherson's ineffective assistance of counsel

claim.

United States v. Rojas, 617 F.3d 669, 674 (2d Cir. 2010)

(internal quotation marks omitted). Evaluating the totality of

the evidence, we “uphold the jury's verdict as long as ‘any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’ ” Id. (emphasis

To make out a claim for ineffective assistance of counsel,

a defendant must show that (1) “counsel's representation

fell below an objective standard of reasonableness” and (2)

“there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

in original) (quoting

Jackson v. Virginia, 443 U.S. 307,

319 (1979)). Therefore, were we to decide the insufficiency

claim on its merits, we would ask whether any rational juror

could find that McPherson acted with “depraved indifference

have been different.”

Strickland, 466 U.S. at 688, 694.

When an ineffectiveness claim is advanced as a grounds for

habeas relief under AEDPA, “it is not enough to convince

a federal habeas court that, in its independent judgment, the

to human life.” See N.Y. Penal Law § 125.25[2]; People

v. Feingold, 7 N.Y.3d 288, 296 (2006) (“[A] depraved and

utterly indifferent actor is someone who does not care if

another is injured or killed[.] ... [D]epraved indifference to

human life is a culpable mental state.” (internal quotations

marks omitted)).

state-court decision applied Strickland incorrectly.”

Bell,

535 U.S. at 698-99. Instead, a petitioner must show “that

the [state court] applied Strickland to the facts of his case in

In the early morning of October 19, 2007, McPherson drove

five miles down the Southern State Parkway in the wrong

direction, causing a car crash that killed the driver of an

oncoming car. Blood drawn from him approximately an hour

later showed that he had a blood alcohol content of .19.

McPherson essentially argues that under New York law,

he was too intoxicated to form a mens rea of deliberate

indifference. Appellant's Br. 31-43. But multiple items of

evidence adduced at McPherson's trial could have led a

juror to rationally conclude that he possessed the required

mens rea, including: that he recognized the need to flee the

nightclub after allegedly discharging his firearm there; that he

helped place a more intoxicated friend in a car; and that he

ignored multiple indications he was driving the wrong way,

such as wrong way signs, backwards signs, near-misses with

oncoming traffic, and a truck that blew its airhorn at him for

several seconds.

In sum, McPherson's insufficiency claim is procedurally

barred, and we therefore reject it on that basis, but even if the

(2)

an objectively unreasonable manner.” Id.; see also

Cullen

v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that

Strickland review under AEDPA is “doubly deferential” to

both counsel's performance and the state court's decision).

*4 We have no trouble concluding, like the District Court,

that the state court correctly applied Strickland when it

rejected McPherson's ineffectiveness claim. As the New York

Court of Appeals explained, while McPherson's trial counsel

“should have moved to dismiss the charge of depraved

indifference murder” because that argument was not “so

weak as to be not worth raising,” nonetheless, “a motion to

dismiss would not have been successful.”

Heidgen, 22

N.Y.3d at 278-79 (internal quotation marks omitted). In sum,

McPherson was not prejudiced by his counsel's failure to

move to dismiss the second-degree murder charge.

McPherson faults the Court of Appeals for stating—in the

context of explaining why McPherson was not prejudiced—

that “a motion to dismiss would not have been successful.”

Id. at 279. To McPherson, this demonstrates that the

court held him to a higher standard than Strickland allows,

since Strickland only requires a “reasonable probability” of

McPherson v. Keyser, Not Reported in Fed. Rptr. (2021)

2021 WL 4452078

success. Appellant's Br. 61-66. But this argument ignores the

clear language of the Court of Appeals’ holding later in the

same paragraph: “Since there was no reasonable probability

that the result would have been different, defendant's claim

also fails under the federal standard.”

Heidgen, 22 N.Y.3d

at 279 (emphasis added) (citing

Strickland, 466 U.S. at

694). The court clearly knew the correct standard and applied

it.

In sum, New York's highest court did not apply Strickland

incorrectly or unreasonably. We therefore agree with the

District Court that McPherson cannot obtain habeas relief

based on his ineffective assistance of counsel claim.

CONCLUSION

We have reviewed all of the arguments raised by McPherson

on appeal and find them to be without merit. For the foregoing

reasons, we AFFIRM the November 15, 2019 order and

November 19 judgment of the District Court.

All Citations

Not Reported in Fed. Rptr., 2021 WL 4452078

Footnotes

In Part 2 of this order, we analyze McPherson's ineffective assistance claim under the AEDPA standard

explicitly, since we are evaluating it as an independent ground for habeas relief. That is, we ask not merely

whether the state court's application of

Strickland v. Washington, 466 U.S. 668 (1984) was incorrect, but

whether “[the state court] applied Strickland to the facts ... in an objectively unreasonable manner.”

Bell v.

Cone, 535 U.S. 685, 699 (2002). The parties disagree as to “whether de novo review or AEDPA deference

applies when a habeas petitioner advances a claim of ineffective assistance as cause to excuse procedural

default (rather than as independent grounds for habeas relief).”

Tavarez v. Larkin, 814 F.3d 644, 650 (2d

Cir. 2016). This is a matter about which our sister Circuits have disagreed, and on which we have not yet

spoken definitively. See

id. at 650 n.3 (summarizing the circuit split). It is unnecessary for us to explicitly

invoke one standard of review or the other here. We find in this case that whether the ineffective assistance

claim is evaluated de novo or with AEDPA deference, it fails for the same reason: McPherson is unable to

establish that he was prejudiced by his trial attorney's alleged ineffectiveness.

Part 2.

End of Document

Id. at 650; see also infra

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

_____________________________________________

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

19th day of November, two thousand twenty-one.

________________________________________

Franklin McPherson,

Petitioner - Appellant,

ORDER

William Keyser, Jr., Superintendent, Sullivan

Correctional Facility,

Docket No: 20-161

Respondent - Appellee.

_______________________________________

Appellant, Franklin McPherson, filed a petition for panel rehearing, or, in the alternative,

for rehearing en banc. The panel that determined the appeal has considered the request for panel

rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.