Fleming v. Noeth

Background

Robert Fleming, who represented himself, challenged under 28 U.S.C. § 2254 his New York conviction by a jury for two counts of second-degree murder. He received two consecutive sentences of 25 years to life. Fleming had unsuccessfully sought to vacate the conviction in state court, and the state appellate courts affirmed the conviction and denied further review.

A magistrate judge recommended denying Fleming’s petition and declining to issue a certificate of appealability. The recommendation stated, among other things, that Fleming had not exhausted his ineffective-assistance-of-appellate-counsel claim. After the recommendation was issued, the respondent submitted records showing that Fleming had filed a state-court request challenging his appellate counsel and had sought review from New York’s highest court. Fleming did not file timely objections to the recommendation.

Issue and governing standard

The court reviewed the unobjected-to portions of the recommendation for clear error. It explained that a claim of ineffective assistance of appellate counsel requires proof that counsel’s performance was objectively unreasonable and that, without the deficient performance, there was a reasonable probability that the appeal would have succeeded.

Court’s analysis

The court found one clear error in the recommendation: Fleming had exhausted his ineffective-assistance claim. He had challenged his appellate counsel in a state-court filing and sought permission to appeal the denial of that filing, completing the state-court process required for exhaustion.

The court then considered the claim on its merits. Fleming argued that he had not authorized the pro bono lawyer’s representation, that the lawyer presented an inadequate oral argument, and that the lawyer left arguments out of the appellate brief. The court held that Fleming had not sufficiently identified the omitted arguments or shown that they were significant and obvious issues that would have been stronger than the arguments counsel presented. The court also found that Fleming had not explained how the oral argument was deficient or harmed his appeal. The submitted briefs addressed several major issues, and Fleming did not show a reasonable probability that his appeal would have succeeded with additional arguments.

Disposition

Judge Schofield adopted the magistrate judge’s Report and Recommendation in part and rejected the recommendation to remove the ineffective-assistance claim for lack of exhaustion. The court denied Fleming’s petition. It declined to issue a certificate of appealability because Fleming had not made a substantial showing that a constitutional right was denied. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk was directed to close the case.