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February 18, 2004.

GORDON J. SMITH, Petitioner,
WAYNE BARKLEY, Superintendent of Riverview Correctional Facility, Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge


I. Background

  A. State Court Proceedings

  According to the testimony adduced at trial, in the early morning hours of February 20, 1996, Robert Crawford, who was in a crowded bar in Colonie, New York, brushed up against a woman who was also in the bar at the time. See Transcript of Trial of Gordon J. Smith (11/19/96) ("Tr.") at PP. 98-99.*fn1 Crawford and his fiance, Corleen Andrews, left the bar approximately two hours later (Tr. at PP. 97, 99). As the two were in the parking lot of the tavern, petitioner, pro se Gordon J. Smith approached them and stated to Crawford "don't disrespect my girlfriend" (Tr. at P. 100). When Crawford indicated to Smith that Crawford did not know what he was talking about, Smith punched Crawford in the face (Tr. at PP. 100-01). Crawford asked Andrews to go to her car to avoid being injured (Tr. at P. 101), and as she began walking toward her car, she felt someone grab her by her hair (Tr. at P. 68). Andrews turned around and recognized Smith as the individual who had pulled her hair (Id.). Smith proceeded to pick Andrews up and throw her, head first, through the glass hatchback of her Page 3 automobile (Tr. at PP. 68-69).*fn2

  On April 16, 1996, an Albany County grand jury charged Smith with first and second degree assault and third degree criminal mischief. See Indictment No. SU960200 (reproduced in Record on Appeal at PP. R3-5).

  Smith was tried before a jury on the above charges in a trial that commenced on November 19, 1996, with Albany County Court Judge Joseph C. Teresi presiding. Smith testified in his own defense at the trial and claimed that Andrews' injuries were the result of an accident (Tr. at P. 200). At the conclusion of the trial, the jury convicted Smith of second degree assault but acquitted him of first degree assault and the criminal mischief charge (Tr. at PP. 274-75). On December 23, 1996, Judge Teresi sentenced Smith as a predicate felon to a determinate term of seven years imprisonment on the conviction. See Sentencing Tr. (12/23/96) at P. 8.

  Smith appealed the conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. On appeal, appellate counsel argued that: i) comments made by Assistant District Attorney Renee Zirpolo ("ADA Zirpolo") during the prosecution's summation Page 4 denied Smith his right to a fair trial; and, ii) Judge Teresi's failure to charge the jury with the lesser included offense of third degree assault deprived Smith of his right to a fair trial. See Appellate Br. The Appellate Division affirmed, People v. Smith, 246 A.D.2d 852 (3d Dept. 1998), and the Court of Appeals denied Smith leave to appeal. People v. Smith, 91 N.Y.2d 977 (1998). Smith did not file any other state court challenges to his conviction. Pet. at ¶ 10.

  B. This Action

  Smith commenced this action on February 22, 1999. See Pet. In his petition, Smith claims that he is entitled to habeas relief due to: i) prosecutorial misconduct (Pet. at Grounds One, Two); and, ii) Judge Teresi's charge to the jury which Smith claims was constitutionally defective (Pet. at Ground Three). In an order dated April 15, 1999, the Hon. Lawrence E. Kahn, United States District Judge, directed Smith to pay the filing fee due in this action (Dkt. No. 6). Smith paid that fee, and the Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed an answer and memorandum of law in opposition to the petition, and provided the court with various records associated with the relevant state court proceedings (Dkt. Nos. 13-14). On Page 5 November 15, 1999, Smith's request for permission to file a traverse in further support of his petition was granted by this court (Dkt. No. 17), however, Smith never filed any additional documents in support of his application.

 III. Discussion

  A. Standards of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim:
that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed Page 6 to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, Page 7 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.

  B. Substance of Petition

  1. Grounds One and Two

  The first two grounds in the petition allege that Smith was denied his right to a fair trial due to prosecutorial misconduct. Specifically, he claims that during summation, the prosecution improperly suggested to the jury that Smith's testimony was not credible and that he was required to provide additional evidence in his defense of the charges against him (Pet. at Ground One). Smith additionally argues that the prosecution's reference to the ...

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