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February 6, 2004.

ALBERTO RAMOS, Petitioner, -against- JOHN SABOURIN, Superintendent, Bare Hill Correctional Facility, Respondent

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. Page 2


  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 possession counts.*fn1

  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: Page 3

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 and tactics."
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). Page 4

  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, 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 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)). Page 5

  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 ...

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