Appellate counsel not ineffective for failing to raise meritorious issue that was otherwise harmless

APPEAL/COLLATERAL REVIEW United States v. Magleby, No. 03-4191, ___ F.3d ___ (10th Cir. Aug. 19, 2005)(Utah). Appeal of district court’s denial of habeas corpus relief under 28 U.S.C. § 2255 for convictions of violating civil rights and conspiracy to violate civil rights under 18 U.S.C. § 241 and 42 U.S.C. § 3631. HELD: Where defendant was charged with conspiracy to violate civil rights of interracial couple in violation of 18 U.S.C. § 241 by burning cross outside their home, district court erred by issuing jury instruction that never defined term threat as requiring threat of force. However, defendant’s appellate attorney was not constitutionally ineffective on direct appeal for not raising jury instruction issue. Erroneous instruction would likely have been deemed harmless on appeal because term “threat” was properly defined in different instruction on related but separate count charging use or threatened use of force to violate civil rights in violation of 42 U.S.C. § 3631. Read the opinion here.