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February 12, 2004.

ULYSSES WEST, Petitioner, -against- CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent

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


Petitioner Ulysses West, an inmate at the Green Haven 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 16, 2004. For the reasons set forth below, the petition is denied. Page 2


  On August 14, 1994, Patrick Rennie ("P. Rennie" or the "victim"), a car mechanic, was working in front of an abandoned building at 407 Chauncey Street in Brooklyn, New York. At about 7:15 p.m., P. Rennie was packing up his tools when West arrived in a blue and white van. West was angry and twice asked P. Rennie where his battery was. P. Rennie twice replied that it was "down the street." P. Rennie then went into the building and tried to push the sagging plywood doors (which were hinged but had no knobs) closed while West tried to push his way in, shouting, "I'm going to put two bullets into you, boy."

  After West's friend, Lee Wiggins, gave West a loaded pistol, West chambered a round. While pushing on the door with his right arm, West reached through the opening with his left arm and fired a shot that hit P. Rennie. P. Rennie ran up the stairs, told his girlfriend that West had shot him, and laid down to wait for the police. West, meanwhile, got back in the van and drove away. Emergency Medical Services personnel took P. Rennie to the hospital, where he died that evening. Among other witnesses, the government called at trial Keith Rennie ("K. Rennie), the victim's brother, who testified that he had observed West do the shooting; Linda Toney, the victim's girlfriend, who testified that the victim stated, "West just shot me"; Wiggins, who observed West do the shooting; and Gordon Joseph, who testified that West told him he had shot the victim.

  West was charged with two counts of murder in the second degree and one count each of criminal possession of a weapon in the second and third degrees. He was acquitted of intentional murder but convicted by the jury of "depraved indifference" murder, in violation of Page 3 New York Penal Law section 125.25(2). On May 23, 1995, the court sentenced West to a term of imprisonment of 25 years to life.

  West appealed from his judgment of conviction, claiming that (1) his identification by K. Rennie should have been suppressed because it was the product of an impermissibly suggestive lineup; (2) the trial court erred by admitting into evidence, as an excited utterance, P. Rennie's statement that West had shot him; and (3) the evidence of his guilt was insufficient. On October 4, 1999, the Appellate Division, Second Department, unanimously affirmed West's judgment of conviction:
Contrary to the defendant's contention, the hearing court properly found that the lineup in which he participated was not impermissibly suggestive. Thus, the defendant's motion to suppress identification testimony was properly denied. In addition, the statement made by the victim a minute or two after he was shot, naming the defendant as the shooter, was properly admitted into evidence as an excited utterance.
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find the evidence was legally sufficient to establish his guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
People v. West, 696 N.Y.S.2d 689, 689-90 (2d Dep't 1999) (citations omitted). West sought leave to appeal the Appellate Decision's decision to the New York Court of Appeals, which was denied on November 29, 1999. People v. West, 94 N.Y.2d 831 (1999) (Smith, J.). West now petitions for a writ of habeas corpus on the same three grounds he raised in his direct appeal to the Appellate Division. Page 4


  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. Page 5 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."); Wigging, 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). Page 6

  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 ...

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