Harris

Appellant/petitioner (hereafter petitioner) makes this novel claim: he was denied effective assistance of appellate counsel in his first appeal (B044048) because appellate counsel pursued rather than abandoned that appeal.

We find petitioner has failed to prove his claim and accordingly deny the petition and affirm the judgment.

Procedural and Factual Background

Because the only issue is effective assistance of counsel in the first appeal, the facts may be stated simply. We adopt Justice Ashby’s summary: “About seven months before the murder, the victim, Kenneth Fulcher, and appellant had a fistfight in front of appellant’s girlfriend, and Fulcher knocked appellant out. Appellant became obsessed with the incident and he determined to confront Fulcher. [ j[] About three weeks before the murder appellant went to San Francisco and purchased a handgun, using a falsified driver’s license. In the early morning hours of February 26, 1986, appellant fashioned a mask from a piece of thermal underwear, took a large cardboard box into Fulcher’s garage and hid in the box for two hours waiting for Fulcher. When Fulcher entered the garage, appellant exchanged words and pushes with…