The opinion of the court was delivered by: JOHN GLEESON, District Judge
Petitioner Alberto Ramos, an inmate at the Bare Hill Correctional
Facility, seeks habeas corpus relief from a judgment of conviction
entered after a jury trial in state court. I held oral argument by
telephone conference on January 30, 2004. For the reasons set forth
below, the petition is denied.
On October 1, 1998, at approximately 9:40 a.m., inside Prospect Park in
Brooklyn, New York, Ramos and his accomplice, Tony White, robbed David
Tucker at knifepoint. White held the knife against Tucker's body while
Ramos removed money and cigarettes from Tucker's pants pockets. White
also took Tucker's New York Yankees jacket, which White was wearing when
police arrested him and Ramos in the park several hours later. As the
police approached the two men, White threw the knife to the ground.
Ramos and White were charged with robbery in the first, second, and
third degrees, grand larceny in the fourth degree, menacing in the second
degree, criminal possession of a weapon in the fourth degree, and petit
larceny. Ramos was convicted by a jury of robbery in the first and second
degrees, grand larceny in the fourth degree, menacing in the second
degree, and criminal possession of a weapon in the fourth degree. On July
19, 1999, he was sentenced to concurrent prison terms of nine years each
for the first- and second-degree robbery counts, three years for the
grand larceny count, and one year each for the menacing and weapon
Ramos appealed from his judgment of conviction, claiming that (1) his
trial lawyer provided ineffective assistance because he failed to object
to the admission of improper evidence of uncharged crimes, and (2) his
sentence was harsh and excessive. The Appellate Division unanimously
affirmed Ramos's conviction, stating:
Contrary to his contention, the defendant received
the effective assistance of counsel. "Mere losing
tactics are not to be confused with
ineffectiveness, and to sustain a claim of
ineffective assistance of trial counsel, proof of
less than meaningful representation is required,
rather than disagreement with counsel's strategies
The sentence imposed was not excessive.
People v. Ramos. 723 N.Y.S.2d 394
(2d Dep't 2001) (citations
omitted) (quoting People v. Sinclair. 698 N.Y.S.2d 876, 876 (2d
Dep't 1999)). Ramos's application for leave to appeal to the New York
Court of Appeals was denied. People v. Ramos. 97 N.Y.2d 642
(2001) (Graffeo, J.).
On April 22, 2002, Ramos filed the instant petition for a writ of
habeas corpus. The claims are the same as those raised on direct appeal.
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 after 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 law 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,
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 v.
Gentry. 124 S.Ct. 1, 4 (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 on 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 ...