## Facts

- Witnesses saw a shooter known as “Florida” kill two men in Rochester, New York.
- Five days later, in an unrelated drug “buy-and-bust,” an undercover officer purchased crack cocaine from Marcus Mosby through a window at 46 Costar Street.
- Officers went to 46 Costar Street without an arrest warrant, entered after being told Mosby was upstairs, and took Mosby into custody.
- While Mosby sat in a police car outside, a neighbor spontaneously referred to him as “Florida,” drawing a connection to the homicide nickname.
- Police assembled a photo array; homicide eyewitnesses identified Mosby as the shooter.
- At the station, after Miranda warnings and a waiver of counsel, Mosby confessed to the homicides.
- Mosby moved to suppress the confession and photo identifications as fruits of an unlawful warrantless home arrest; the trial court denied suppression on the ground that Mosby lacked a privacy interest in the house.
- On direct appeal, Mosby’s appellate counsel did not raise the suppression issue; Mosby was unsuccessful on a later state coram nobis claim alleging ineffective appellate counsel.
- Mosby sought federal habeas relief under 28 U.S.C. § 2254; the district court denied the petition.

## Issues

1. Whether appellate counsel was constitutionally ineffective for failing to argue that Mosby’s confession and identifications should have been suppressed as fruits of a warrantless home arrest.
2. Whether, assuming a Fourth Amendment violation, the confession and identifications were nonetheless admissible because intervening events attenuated any taint from the arrest.

## Decision

- The Second Circuit affirmed the denial of habeas relief.
- The court held Mosby failed to show Strickland prejudice because the unraised suppression argument was unlikely to succeed.
- Applying Brown v. Illinois attenuation factors, the court concluded intervening, untainted identifications and other circumstances broke any causal link between the entry/arrest and the later confession.
- Because the underlying suppression claim lacked merit, the omission on direct appeal did not create a reasonable probability of a different appellate outcome.

## Legal Principles

- Ineffective assistance of appellate counsel is governed by Strickland v. Washington: a petitioner must show deficient performance and a reasonable probability that the omitted issue would have changed the result on appeal.
- Appellate counsel need not raise every nonfrivolous claim; prejudice turns on the strength of the omitted argument.
- Under Brown v. Illinois, evidence following an unlawful arrest may be admissible if sufficiently attenuated, considering temporal proximity, intervening circumstances, and the purpose or flagrancy of police misconduct.
- Intervening, independent identifications can break the causal chain between an unlawful entry/arrest and a subsequent confession, defeating a fruit-of-the-poisonous-tree suppression theory.

## Conclusion

The court denied § 2254 relief because Mosby could not establish that appellate counsel’s failure to raise a Fourth Amendment suppression claim affected the outcome: intervening, independent identifications and related events attenuated any taint from the warrantless home entry, making suppression unlikely and eliminating Strickland prejudice.


Mosby v. Senkowski, 470 F.3d 515 (2d Cir. 2006)