Mountjoy v. Cunningham

Mountjoy v. Cunningham                CV-00-018-JD   05/11/00
              UNITED STATES DISTRICT COURT FOR THE
                    DISTRICT OF NEW HAMPSHIRE


Keith Mountjoy

     v.                             Civil No. 00-18-JD
                                    Opinion No. 

Michael J. Cunningham, Warden
New Hampshire State Prison


                            O R D E R


     Keith Mountjoy, proceeding pro se, petitions for habeas

corpus relief, pursuant to 

, from his

incarceration for sentences imposed after his conviction on

charges of burglary and aggravated felonious sexual assault. The

petitioner raises three issues in support of his petition:

violation of his right to conflict-free representation due to the

state trial court's failure to inquire of him about the disclosed

conflict; ineffective assistance of his appellate counsel in

failing to brief a claim that his trial counsel represented him

under an actual conflict of interest; and a due process violation

caused by delay in his appeal.   The respondent has answered the

petition.   Since the petitioner has not requested a hearing and a

hearing does not appear to be required, the petition may be

addressed on the present record.1   See Habeas Corpus Rule 8.


     1The state courts' factual findings are presumed to be
correct since the petitioner has not challenged the findings with
                            Background

     The petitioner was tried three times on charges of burglary

and aggravated felonious sexual assault and was represented by

attorney Stephen Jeffco in each proceeding.   The jury deadlocked

on both charges in the first two trials.   During an in-chambers

conference before the third trial. Attorney Jeffco informed the

trial judge that he was then representing one of the state's

witnesses in an unrelated matter.   The petitioner was not present

during the conference.   Jeffco told the court that he had

informed the petitioner of the other representation and that the

petitioner had consented to continue to be represented by Jeffco.

Neither Jeffco nor the prosecutor believed that the other

representation caused a conflict of interest with his

representation of the petitioner.

     Dennis Pratte, the witness represented by Jeffco, was the

town police officer who had responded to the scene of the crime

from which the charges against the petitioner arose.    Pratte

participated in the investigation of the crime and in the arrest

of the petitioner.   Jeffco represented Pratte on charges of



clear and convincing evidence. See 

(e) (1)
The petitioner has not suggested that any additional factual
development is necessary to present his claims. See §
2254(e)(2); Williams v. Tavlor, ___ U.S.__ , 

(Apr. 18, 2000).

                                2
felonious sexual assault of his stepdaughter, a matter unrelated

to the charges against the petitioner.    At the time of the

petitioner's third trial, Pratte was awaiting trial on the

charges.   It does not appear that the court or the petitioner was

aware of the nature of the charges against Pratte before or

during the petitioner's trial.

     Pratte testified at the petitioner's third trial, as he had

at the first two trials.    As the first officer at the scene of

the crime, Pratte testified that the victim told him that she had

no idea who had attacked her.     Pratte's testimony was important

to the defense because the victim later identified the

petitioner, who lived in the same apartment building, based on

recognizing his voice.     Jeffco questioned Pratte about his

investigation of the crime in the same manner as he had in the

first two trials when Jeffco did not represent Pratte.     The

petitioner was found guilty on both charges on April 15, 1994.

     On May 23, 1994, the petitioner, proceeding pro se, filed a

motion for judgment of acquittal on the ground that his counsel

had operated under a conflict of interest.     A hearing was

scheduled for June 14, 1994, on the petitioner's motion.        On June

8, 19 94, the court appointed public defender Andrew Schulman to

represent the petitioner during post-trial proceedings and the

hearing was continued to give Schulman time to prepare.        In


                                  3
February of 1995, Schulman filed a motion to set aside the

verdict, raising issues of the court's failure to inquire into

Jeffco's conflict of interest and ineffective assistance of trial

counsel based on the conflict.    A hearing was held on the

petitioner's motions on August 10, 1995, and on August 22, 1995,

the court issued an order denying the relief requested.       The

petitioner's notice of appeal was filed in September of 1995, and

after the appeal was accepted, a brief was filed on behalf of the

petitioner on April 1, 1996.     The state sought and was granted an

extension of time and filed its brief on June 16, 1996.

     In the brief, the appellate defender, James Duggan, argued

the issue of the petitioner's right to have the court inquire of

him and hold a hearing on the issue of his counsel's conflict of

interest.   Although the issue of whether an actual conflict of

interest existed was raised in the notice of appeal, it was not

briefed.    The case was argued to the supreme court on December 6,

1996, and the decision affirming the conviction issued on April

23, 1998.    The supreme court held that under the state law rule

in Hopps v. State Bd. of Parole, 

 (1985), the

trial court should have inquired of the petitioner about his

counsel's conflict of interest but that no constitutional

violation occurred as a result of the court's failure to inquire.

See State v. Mountiov, 

 (1998) .    The court also

                                  4
held that by not briefing the issue the petitioner had waived the

issue of whether his trial counsel was representing him under an

actual conflict of interest.   See 

.

     In the meantime, the petitioner filed a petition for habeas

relief in this court on October 8, 1997.      The court determined

that the petition included both exhausted and unexhausted claims

and dismissed it as a mixed petition and denied the petitioner's

request for a certificate of appealability.       The First Circuit

Court of Appeals also denied a certificate of appealability for

lack of exhaustion.

     The petitioner filed a petition for habeas corpus in state

court on July 7, 1999.   As grounds for relief, he argued that he

was denied the effective assistance of counsel because the trial

judge failed to personally inquire of him or hold a hearing on

the question of his counsel's conflict of interest and that his

appellate counsel provided ineffective assistance by failing to

brief the actual conflict issue.       A hearing was held on his

petition on September 10, 1999, and the petition was denied in a

written opinion issued on September 23, 1999.       The petitioner

represents that he filed a notice of appeal of that decision to

the New Hampshire Supreme Court and that the court declined to

hear the appeal.




                                   5
                            Discussion

     The petitioner's three claims for habeas relief are:

violation of his right to conflict-free representation due to the

state trial court's failure to inquire of him as to whether he

waived the right; ineffective assistance of his appellate counsel

in failing to brief a claim that his trial counsel represented

him under an actual conflict of interest; and a due process

violation caused by delay in his appeal.       In the answer, the

respondent acknowledges that the first two issues have been

exhausted, but contends that the third issue was never raised in

state court and is unexhausted.       The respondent asks that the

court deny the petition on the merits rather than dismiss the

petition because of the unexhausted claim.

     Federal courts are barred from granting an application for a

writ of habeas corpus to state prisoners unless the petitioner

has exhausted all available state remedies.       See 

(b)(1).   Habeas relief cannot be granted as to "any claim

that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim--

     (1) 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; or

     (2) resulted in a decision that was based on an
     unreasonable determination of the facts in light of the

                                  6
       evidence presented in the State court proceeding.

(d); see also Vieux v. Pepe, 

(1st Cir. 1999).    A factual determination made by a state court

is presumed to be correct, and the petitioner may rebut the

presumption only by clear and convincing evidence.     See §

2254 (e)(1).

       As to each claim raised in an application for habeas relief,

the court first determines whether clearly established federal

law, based on Supreme Court precedent, governs the claim.      See

Torres v. Dubois, 

 (1st Cir. 1999).     The court

then decides whether the state court decision was "contrary to"

or an "unreasonable application of" clearly established federal

law.    See Williams, 

 at *22.   A decision is

"contrary to" clearly established law if the state court applied

a legal standard that contradicts the governing federal law or,

based on materially indistinguishable facts, came to a result

that is different from the Supreme Court's previous result.        See

id. at *24.    A decision is an unreasonable application of the law

if, despite correctly identifying the governing legal precedent,

the state court applied the law unreasonably to the facts of the

case or unreasonably extended or failed to extend legal precedent




                                  7
in a new context.2     See id. at *25.

      When a petitioner has not exhausted available state remedies

as to a claim raised in a habeas application, the federal court

may nevertheless dismiss the application, despite the exhaustion

requirement, when the merits of the claim are clearly not in the

petitioner's favor.     See 

(b)(2); West v.

Vaughn, 

 (3d Cir. 2000) .    Therefore, the court

will begin with the unexhausted claim, which alleges a due

process violation based on the time that elapsed between the

petitioner's conviction and the supreme court's decision on his

appeal.



A.   Appellate Delay

      Extreme delay between the conviction and the resolution of

the case on appeal can amount to a due process violation if the

petitioner also shows that he was prejudiced by the delay.      See

United States v. Luciano-Mosquera, 

    (1st Cir.

1995) .   No constitutional inquiry is required unless there was a

delay sufficient to raise concerns as to its prejudicial effects,


     2The Supreme Court's recent interpretation of the "contrary
to" and "unreasonable application of" prongs of § 2254(d)(1) may
call into question the First Circuit's interpretation announced
in O'Brien v. Dubois, 

 (1st Cir. 1998). See
Williams, 

 at *24-25.
in which case the court considers the reasons for the delay,

whether the petitioner asserted his right to speedy process, and

most importantly, whether the delay actually caused prejudice.

See Barker v. Winqo, 

 (1972); Mims v. LeBlanc,

    (5th Cir. 1999); United States v. Smith, 

    (6th Cir. 1996); United States v. Hawkins, 

   (8th Cir. 1996); Simmons v. Beyer, 

(2d Cir. 1995); Latimore v. Spencer, 

 (D.

Mass. 1998).    "Whether an appellate delay results in prejudice

sufficient to warrant reversing a conviction rests, most

importantly, on a showing that it has impaired the appeal or the

defense in the event of retrial."      Luciano-Moscruera, 

 .

     The petitioner was convicted in April of 1994; his notice of

appeal was filed in September of 1995; the briefs were submitted

to the New Hampshire Supreme Court by June of 1996; the case was

submitted following oral argument in December of 1996; and the

supreme court issued its decision in March of 1998.      Whether the

delay in resolving the appeal was sufficiently extreme to warrant

constitutional inquiry need not be decided in this case because

the petitioner has presented no evidence, argument, or

allegations in support of his mere statement that he was

prejudiced.     There is nothing in the petition or the record that

                                   9
would suggest that his appeal was prejudiced in any way by the

delay.   Since his conviction was affirmed, no prejudice to his

defense in the event of a retrial occurred.     Absent a showing of

prejudice, the petitioner cannot prevail on an appellate delay

claim.   See Luciano-Mosquera, 

.

     The petitioner's appellate delay claim, therefore, is

dismissed on the merits.



B.   Failure to Inquire About Counsel's Conflict

     The petitioner contends that the trial court's failure to

inquire of him as to whether he knowingly waived his right to

conflict-free representation was a violation of his Sixth

Amendment right to counsel.   Relying on Holloway v. Arkansas, 

 (1978), the petitioner contends that he was entitled to

an automatic reversal of his conviction so that the state court's

decision affirming his conviction was contrary to established

Supreme Court precedent.   The claim asserting the petitioner's

right to conflict-free representation and the court's obligation

to conduct an adequate inquiry as to possible conflict is

governed by Holloway, 

; Cuvier v. Sullivan, 

 (1980); and Wood v. Georgia, 

     (1981).   See also

Atlev v. Ault, 

 (8th Cir. 1999) .

     If the trial court "'knows or reasonably should know that a

                                10
particular conflict exists,'" the court is constitutionally

required to initiate an inquiry into the nature of the conflict

and the defendant's knowledge of it.3 Wood, 

 n.18

(quoting Cuvier, 

).     Therefore, if the defendant

made a timely objection to representation under a conflict and

the trial court did not inquire further, an actual conflict is

presumed and the conviction must be reversed.     See Holloway, 

.     On the other hand, when no objection is raised

and "[ajbsent special circumstances,    . . . trial courts may

assume either that multiple representation entails no conflict or

that the lawyer and his clients knowingly accept such risk of

conflict as may exist."     Cuvier, 

.   A defendant

who did not make a timely objection to possibly conflicted

representation "must demonstrate that an actual conflict of

interest adversely affected his lawyer's performance."      

 at

348 .

        In this case, the petitioner's trial counsel. Attorney

Jeffco, informed the court and the prosecutor, before the third



     3Courts have interpreted the standards in Holloway and
Cuvier to apply in other conflict situations in addition to the
joint representation of co-defendants. See, e.g.. Wood, 450 U.S
at 271-72; Riggs v. United States, ___ F.3d     , 

at *6 n.l (6th Cir. Apr. 11, 2000); Atlev, 

 n.4;
Spreitzer v. Peters, 

, 1451 n.7 (7th Cir. 1997).

                                  11
trial began, that he had undertaken the representation of one of

the state's witnesses. Officer Pratte, on an unrelated matter,

after the conclusion of the second trial.   Jeffco represented to

the court that he did not believe a conflict of interest existed

and that the petitioner had been informed and did not object to

continued representation by Jeffco.   The prosecutor agreed that

Jeffco's representation of Pratte did not create a conflict of

interest as to his representation of the petitioner.      The

discussion took place in chambers, not on the record, and the

petitioner was not included nor did the court inquire of the

petitioner as to his knowledge of the conflict or agreement to

Jeffco's continued representation.    The question of a conflict of

interest did not arise again until the post conviction motions

were filed.

     In response to the petitioner's motion for judgment of

acquittal, which raised the lack of an adequate inquiry into the

conflict issue, the trial court conceded that further inquiry

should have been made.   The court reexamined the trial

transcript, the pleadings, and held a hearing on the motion.      The

court found that Jeffco had disclosed to the petitioner just

before trial that he represented Pratte in another matter.      The

court also found that Pratte provided favorable evidence for the

defense on the issue of identification, that Jeffco would have


                                12
called him as a defense witness if the state had not, and that

Jeffco handled the defense and his cross-examination of Pratte

just as he had in the first two trials when he did not represent

Pratte.   Based on all of the evidence, including the testimony at

the hearing, the trial court determined that Jeffco's

representation of Pratte did not cause a conflict of interest in

his representation of the petitioner.

       On appeal, appellate counsel pursued the issue of whether

the trial court made an adequate inquiry under the Hopps

standard.4    The New Hampshire Supreme Court held that the Hopps

inquiry requirement applied to any potential conflict of

interest, not exclusively to joint representation of co­

defendants, and that the trial court should have conducted such

an inquiry.    Mountjoy, 

.   The court concluded,

however, that the requirement was merely a prophylactic state

rule to avoid unnecessary collateral attacks on criminal

convictions and was not constitutionally mandated.     See 

.   The court held that the automatic reversal rule under

Holloway was inapplicable to the case because the petitioner did

not object at trial to the potential conflict and that the actual



     4Hopps, 

 (requiring a hearing on the record
to secure a defendant's informed consent to representation by
counsel with a potential conflict of interest).

                                  13
conflict standard under Cuvier applied instead.   See 

     Because

the petitioner's appellate counsel had not briefed the issue of

an actual conflict, however, the court deemed the actual conflict

issue to have been waived.

     The New Hampshire Supreme Court distinguished the Supreme

Court's decision in Wood, 

, in which the Court

considered the issue of conflict sua sponte and remanded the case

for a hearing on the issue.   See Mounti ov, 

.    The

New Hampshire court noted that unlike the trial court in Wood,

the trial court in Mounti ov addressed the issue of whether an

actual conflict existed in response to the post-trial motions

obviating any need under Wood to reverse the convictions and

remand for a hearing on the conflict issue.   See 

   The

conviction was affirmed.

     The New Hampshire Supreme Court correctly determined that

this is not a case, as in Holloway, in which the defendant      (or

counsel) obi ected to a possible conflict of interest and the

trial court ignored the possibility of a conflict and denied the

objection without an adequate inquiry.5   The court's conclusion



     5The supreme court focused on the lack of an objection to
the potential conflict and did not explicitly address the effect
of the inquiry the trial court did make. In this case, unlike
Wood, defense counsel and the prosecutor assured the trial court
that no conflict existed and that the petitioner had been

                                14
that automatic reversal was not mandated under Holloway,

therefore, was neither contrary to nor an unreasonable

application of Supreme Court precedent.

     Under Wood, however, when a trial court knows or should have

known of an unchallenged potential conflict, the court is

obligated to make an adequate inquiry into the matter.     See Wood,

.   If the court ignores an unchallenged

potential conflict, the remedy applied in Wood is to vacate the

conviction and remand the case for a hearing on the conflict

issue to determine whether an actual conflict existed that would

require reversal of the conviction.     See Wood, 

.

On the other hand, trial courts may rely on the good faith and

good judgment of counsel in assessing the possibility of conflict

and prejudice to the defendant, without making further inquiry

into unchallenged but obvious potential conflicts such as joint

representation of co-defendants.     See Cuvier, 

.

Therefore, to the extent Supreme Court precedent is clear,

automatic reversal is not required when no objection has been

made to an obvious potential conflict.     See, e.g., Dawan v.

Lockhart, 

 (8th Cir. 1992)    (discussing inquiry


informed that his attorney also represented the state's witness.
See Spreitzer v. Peters, 

 (7th Cir. 1997)
(finding that trial court appropriately relied on defense
counsel's assessment of potential conflict of interest).

                                15
requirement under Wood); Brien v. United States, 

, 15

n.10   (1st Cir. 1982)   (same); Mickens       v. Greene, 

    (E.D. V a . 1999)   (same).

       Wood, however, requires that an inquiry be made into an

unchallenged potential conflict, which was known to the trial

court, to determine whether an actual conflict existed.           See

Wood, 

.      The state supreme court determined that

the trial court satisfied the inquiry requirement because the

court considered the conflict issue post trial and determined

that no actual conflict existed.           Other federal courts have

considered the inquiry requirement in Wood and determined that

any further judicial inquiry which establishes that no actual

conflict existed fills the gap in the record and satisfies due

process.     See, e.g., Garcia v. Bunnell, 

          (9th

Cir. 1994)    (relying on district court's       hearing on conflict);

Brien, 

 n.10; Mickens,           

(discussing requirements and citing cases).           See also O'Brien,

 ("To the extent that inferior federal courts have

decided factually similar cases, reference to those decisions is

appropriate in assessing the reasonableness vel non of the state

court's treatment of the contested issue.").           The state supreme

court's decision is neither contrary to nor an unreasonable

application of the legal principles in Wood.

                                      16
         Therefore, under the circumstances of this case, where

counsel raised the conflict issue before trial and told the court

both that no actual conflict existed and that he had informed the

petitioner, and the prosecutor agreed that no conflict existed,

the New Hampshire Supreme Court's decision that Holloway did not

apply and that Wood was satisfied by the trial court's post-trial

inquiry was neither contrary to nor an unreasonable application

of Supreme Court precedent.     See Cuvier, 

; see

also Williams, 

 at *24.

        The petitioner has not challenged the state court's

determination of the facts and, therefore, has not provided clear

and convincing evidence that the court's findings were erroneous.

See § 2254(e).     The state court's factual findings are therefore

presumed to be correct.     The record and the petition provide no

basis to grant the writ due to a decision that was contrary to or

an unreasonable application of Supreme Court precedent or that

resulted from an unreasonable determination of the facts in the

case.     See § 2254(d).



C.   Ineffective Assistance of Appellate Counsel

        Constitutionally ineffective assistance of appellate counsel

is reviewed under the familiar standard established in Strickland

v. Washington, 

 (1984).     See Smith v. Robbins, 120 S.

                                  17
Ct. 746, 764 (2000).     The Strickland test requires claimants to

prove that counsel's performance was both deficient and

prejudicial to his case.     See Strickland, 

; accord

Roe v. Flores-Qrteqa, 120 S. C t . 1029, 1034 (2000) .     Deficient

performance is representation "that falls below 'an objective

standard of reasonableness' under prevailing professional norms

when considering all the circumstances."       Matthews v. Rakiev, 

    (1st Cir. 1995)    (quoting Strickland, 

).     Counsel's performance is to be evaluated by a highly

deferential standard in light of the circumstances that existed

in the case at the time of counsel's conduct.       See Roe, 120 S.

C t . at 1035.   Prejudice "in this context means 'a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"        Prou v.

United States, 

      (1st Cir. 1999)   (quoting

Strickland, 

).

        The petitioner raised the issue of ineffective assistance of

appellate counsel in his state habeas proceeding.        The state

court considered the claim under the standard provided in a state

case. State v. Wisowatv, 

 (1993), which relied

on the Strickland standard.6    See 

     The state habeas court


     6Since the state supreme court declined the petitioner's
appeal in his habeas proceeding, the decision of the state trial

                                  18
stated the applicable standard as follows:

      In order to prevail on a claim of ineffective
      assistance of counsel, petitioner must show (1) that
      his attorney made such egregious errors that he was not
      functioning as the counsel guaranteed by the Federal
      and State Constitutions, and (2) that such errors were
      prejudicial, in the sense that there is a reasonable
      probability that the result of the legal proceeding
      would have been different had he received competent
      legal representation.

Mountjoy v. Risley, No. 99-E-260 at 3, Sept. 26, 1999     (internal

quotations omitted).     The court's legal standard for ineffective

assistance of counsel does not contradict the Strickland

standard, nor is the decision different from a factually

indistinguishable Supreme Court case.     See Williams, 

 at *24; see also, e.g.. Smith v. Robbins, 120 S. C t . 746

(2000)   (discussing ineffective assistance claim for failure to

file appellate brief on merits); Burger v. Kemp. 

   (1987)   (discussing appellate counsel's discretion to choose

meritorious claims).

      The second prong of § 2254(d)(1) requires an analysis of

whether a state court decision, applying the correct legal

principles, was an unreasonable application of the law to the

facts of the case.     See Williams, 

 at *27.   The


court is the last reasoned opinion on the issue and is the
decision that is considered for purposes of federal habeas
review.  See Ylst v. Nunnemaker, 

 (1991); accord
Phoenix v. Matesanz, 

 (1st Cir. 1999) .

                                   19
state court determined that the petitioner could not show either

that his appellate counsel's representation constituted sub­

standard performance or that he was prejudiced by counsel's

failure to brief the actual conflict of interest issue on appeal.

     With respect to appellate counsel's representation, the

state court credited counsel's testimony at the habeas hearing

that he believed there was little factual basis for pursuing a

claim of an actual conflict of interest and that he was concerned

that pursuing such a weak claim would detract from the stronger

claim based on the court's failure to inquire about the conflict.

Quoting Burger, 

, the court held that counsel's

decision to winnow out the weaker claim showed effective

appellate advocacy.

     The Supreme Court has held that appellate counsel is not

obligated to raise and brief every colorable claim, but may,

instead, choose the stronger claims to pursue on appeal.       See

Jones v. Barnes, 

   (1983); accord Smith v.

Murray, 

 (1986).    Appellate counsel's

supportable strategic decision to forego an issue on appeal does

not constitute ineffective assistance of counsel.    See Burger,

.   Therefore, the state court's analysis of

appellate counsel's performance is consistent with and not

contrary to or an unreasonable application of Supreme Court

                                20
precedent.   See 

 ("the 'process of "winnowing out weaker

claims on appeal and focusing on" those more likely to prevail,

far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.'")     (quoting Smith, 

quoting Jones 

-52 ).

     As to whether a reasonable probability existed that briefing

the actual conflict issue might have lead to a different outcome

on appeal, there must have been a reasonable probability that an

actual conflict of interest which adversely affected Jeffco's

performance could have been shown to exist.     See Strickland, 

 (quoting Cuvier, 

).     The state habeas

court reviewed the three alternative strategies the petitioner

argued Jeffco might have pursued but for his concurrent

representation of Pratte.   The court held that the evidence did

not support a theory that the police, including Pratte, rather

than the victim, suggested the petitioner as the perpetrator.

The court also found the record showed that the police

investigation was quite extensive, although not perfect, and that

Jeffco had highlighted the deficiencies just as he had done in

the two previous trials when he did not represent Pratte.      As to

the petitioner's theory of impeaching Officer Pratte with his own

indictment for sexual assault, the court said that such

examination would not have been permissible under the rules of

                                21
evidence.

     The court concluded that because of the importance to the

defense of Pratte's testimony about the identification of the

perpetrator, "any competent attorney representing the defendant

would have pursued the same strategy in dealing with Pratte as

was employed by Jeffco."    Mounti ov, 99-E-260 at 6.   The court

held that appellate counsel determined correctly that Jeffco "did

not have an actual conflict of interest arising out of his

representation of Officer Pratte" and that appellate counsel

"made a prudent and reasonable decision not to pursue before the

supreme court the issue of an actual conflict of interest."

Mounti ov, 99-E-260 at 7.

     The state habeas court's analysis of the second prong of the

Strickland standard, requiring a reasonable probability of a

different outcome if the issue of actual conflict had been

briefed, was neither contrary to nor an unreasonable application

of Supreme Court precedent.    See § 2254(d)(1).   Since the

petitioner did not challenge the factual basis of the court's

decision and the record indicates no infirmity, there is no

indication that the decision was based on an unreasonable

determination of the facts.    See § 2254(d)(2).   The record   does

not support a writ of habeas corpus on the petitioner's

ineffective assistance of appellate counsel claim.

                                 22
                              Conclusion

      For the foregoing reasons, the petitioner's application for

a writ of habeas corpus   (document no. 1) is denied.    The clerk of

court shall enter judgment accordingly and close the case.

      SO ORDERED.


                                       Joseph A. DiClerico, Jr,
                                       District Judge

May 11, 2000

cc:   Keith Mounjoy, pro se
      Ann M. Rice, Esquire




                                  23