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 Preston5 (“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-misc66(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-CV5214(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 selfdefense 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. 
 The majority’s discussion of the objective reasonableness 

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

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

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

conclusion assumes that any deficiency in pursuing the EED 

defense is therefore excused. I do not believe that Strickland

condones deficient performance in investigating one defense if 

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

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

investigate requires that counsel conduct a substantial 

investigation into any of his client’s plausible lines of 

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

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

(ineffective assistance may be demonstrated where counsel 

performs competently in some respects but not others). In 

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

majority does not consider the range of Murden’s allegations 

properly before us: that trial counsel did not consult with 

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

counsel did not interview witnesses for that defense, but should 

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

attempted suicide, but should have done so. 

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 Murden’s allegations are supported by the record. Pretrial transcripts show that counsel requested time to review the 
file on the January 9, 1991 calendar call, and to “sit with the 

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

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

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

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

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

intended to call until he consulted with his client. Although 

counsel testified at the December 2004 hearing before the 

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

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

to establish that he had done any investigation into the EED 

defense. 

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 Nothing in the record contradicts Murden’s assertions that 

counsel did not consult with him about the EED defense or 

otherwise pursue it. Even setting aside what has been asserted 

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

trial proclaim that he did not prepare or investigate the EED 

defense. Counsel neither mentioned the EED defense in his 

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

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

any witnesses to bolster the defense. He introduced no evidence 

of Murden’s psychiatric history or prior suicide attempt. 

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

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

evidence supporting it. 

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

to make a reasonable decision that makes particular 

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

readily apparent that counsel here gave no thought to laying the 

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

counsel adequately prepared for the case, he would have thought 

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

investigation, it would have revealed that Murden had a 

psychiatric history and that he had threatened suicide and to 

hurt his previous girlfriend when she threw him out of their 

apartment. We also know that at least one psychologist believes 

Murden was suffering from a mood and personality disorder and 

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

timely investigation would have revealed similar expert 

testimony for use at the trial. 

 I can conceive of no strategic reason for an attorney who 

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

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

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

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

the reasonableness of counsel’s challenged conduct on the facts 

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

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

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

this defense, I do not understand what strategy would compel 

counsel to avoid presenting the defense in opening statements or 

introducing any evidence or testimony supporting the defense. 

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

considerations do not account for a challenged decision by 

counsel, the deficient-performance prong of Strickland will 

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

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

counsel’s decision not to introduce readily-available evidence 

that would have corroborated a particular line of defense). 

Accordingly, to the extent the state court and district court 

found trial counsel’s performance effective despite this lack of 

preparation, and to the extent the majority implicitly adopts 

these finding, I respectfully disagree. 

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