the same test is used with respect to appellate counsel.”). In other words, Petitioner “must first show that his counsel was objectively unreasonable” in failing to raise the issue on appeal, and then “must show a reasonable probability that, but for his counsel’s unreasonable failure [to raise the issue], he would have prevailed on his appeal.” Smith, 528 U.S. at 285-86, 120 S.Ct. 746. Under the first prong, “it is difficult to demonstrate that counsel was incompetent” for “fail[ing] to raise a particular claim” because “appellate counsel ... need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Smith, 528 U.S. at 288, 120 S.Ct. 746; see also Jones, 463 U.S. at 754, 103 S.Ct. 3308 (<HOLDING>); Aparicio, 269 F.3d at 95 (“Counsel is not
holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel holding that appellate counsel is not required to raise meritless issues on appeal holding that similar argument did not raise a colorable question of law for purposes of jurisdiction recognizing that appellate counsel is under no duty to raise every colorable claim suggested by a client recognizing that every theory of relief must raise federal issue for claim to arise under federal law