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December 31, 2003.

GLEN DALEY, Petitioner, -against- DALE ARTUS, Superintendent, Clinton Correctional Facility; and ELIOT SPITZER, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Glen Daley seeks habeas relief from a judgment of conviction entered after a jury trial in stale court. I held oral argument on November 21, 2003. For the reasons set forth below, the petition is dented. BACKGROUND

  On May 27, 1997, Daley, a retired New York City police officer, shot Charles Durham in the lobby of the building they both lived in. Daley shot Durham four times with a 38-caliber revolver, injuring, inter alia, Durham's lung. Daley called 911 and surrendered his firearm and pistol license to police at the scene. After the shooting, Daley told an acquaintance that Durham had been a "pain" and had deserved to be shot, and that Daley's friends on the police force would cover up the shooting. Daley was charged with attempted murder in the second degree, two counts of assault in the first degree, and assault in the second degree. On August 3, 1998, a jury found Daley guilty on all counts. On October 8, 1998, the court sentenced Daley to an indeterminate prison term of 12 ½ to 25 years.

  Lombard, through counsel, appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department. Daley raised five claims in his brief to the Appellate Division: (1) that the government improperly elicited at trial that Daley was a paranoid and violent person; (2) that the prosecutor improperly forced Daley in his trial testimony to characterize the state's witnesses as liars and improperly told the jurors on summation that they could acquit only if they found that the state's witnesses lied; (3) that the trial court improperly admitted evidence of a prior uncharged crime and bad acts; (4) that the cumulative effect of the above errors denied Daley a fair trial; and (5) that his sentence was harsh and excessive.

  On March 25, 2002, the Appellate Division unanimously affirmed Daley's conviction. People v. Daley, 292 A.D.2d 630 (2d Dep't 2002). Specifically, the Appellate Division held that the trial court properly admitted evidence of Daley's conduct in the building prior to the shooting to explain his state of mind. Id. at 631, The court also held that Daley's claims of prosecutorial misconduct, both during the cross-examination of Daley and during summation, were not preserved for appellate review, Id. The court further held that the claims of prosecutorial misconduct were in any event harmless "in light of the overwhelming evidence of [Daley]'s guilt. Id. The Appellate Division also held that Daley's sentence was not harsh or excessive, and that his remaining contentions were meritless. Id. On August 29, 2002, the New York Court of Appeals denied Daley's leave to appeal People v. Daley, 98 N.Y.2d 709 (2002) (Kaye, C.J.).

  By petition dated August 20, 2003, Daley seeks a writ of habeas corpus based on the following two grounds: (1) that the prosecutor's improper comments both on cross-examination of Daley and in summation were so numerous and, in combination with improper character evidence described in ground two, so prejudicial that Daley was denied the right to a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; and (2) that the erroneous admission of prejudicial evidence against Daley in the form of testimony on the state's direct case characterizing Daley as a violent, paranoid, and antisocial individual, which was admitted solely to show Daley's propensity for violence, constituted a denial of fundamental fairness and denied Daley due process of law, in violation of the Fifth and Fourteenth Amendments.


 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed alter AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision `"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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams. 529 U.S. at 413, A decision is an "unreasonable application" of clearly established Supreme Court Jaw if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough y. Gentry, 124 S.Ct. 1, 157 L.Ed.2d 1, 7 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."): Wiggins. 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim en the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law
261 F.3d 303, 312 (2d Cir. 2001).
  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1),
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review, . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).

 B. Daley's Claims

  1. Procedural Default

  Daley claims that the prosecutor improperly (1) forced him to characterize the state's witnesses as liars, and (2) told the jurors in summation that they could acquit only if they discredited all of the state's witnesses. The Appellate Division held that these two claims "were not preserved for appellate review," Daley, 739 N.Y.S.2d at 614. For the reasons set forth below, I find that the Appellate Division's implicit conclusion that Daley failed to comply with the ...

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