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March 11, 2004.


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


Petitioner Jeffrey Mack seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on February 27, 2004. For the reasons set forth below, the petition is denied. Page 2


  On February 4, 1996, Mack shot Anthony Davenport twice, seriously injuring him. Davenport had known Mack for many years and provided the police with his name and the area where he lived. Police officers were unable to locate Mack, and so issued a "wanted card." Mack was later arrested on April 21, 1998, when officers, who were aware that Mack was wanted, went to his home to investigate a domestic violence report filed by Mack's father. At the time of the arrest, officers recovered from Mack's bedroom a gun case, a holster, a gun catalog, and three wallets containing various forms of identification. While at the precinct, Mack asked the officers why they had taken only the gun case and not the ammunition. Also, when told that he had been arrested for the Davenport shooting, Mack asked the officer why it had taken the police two years to catch him.

  Mack was charged with one count each of attempted murder and criminal possession of a weapon in the second degree, and two counts each of assault in the first degree and criminal possession of a weapon in the third degree. Mack moved to suppress the property recovered by police officers at his home, as well as his statements to officers at the precinct on the grounds that the officers lacked probable cause to arrest him and that the statements were made without the benefit of Miranda warnings. After a hearing, the court denied Mack's motion, holding that the property was recovered incident to a lawful arrest, and that Mack's statements were spontaneously made. (See Dec. 4, 1998 Hr'g at 189-91.)

  On July 29, 1999, a jury convicted Mack of all charges.*fn1 The court sentenced him, as a second felony offender, to concurrent prison terms of fifteen years for the attempted Page 3 murder, ten years for each count of assault and for second-degree weapon possession, two to four years for the first count of third-degree weapon possession, and five years for the second count of third-degree weapon possession.

  In June 2000, Mack perfected his direct appeal to the Appellate Division, Second Department. In his brief, Mack argued that (1) the items seized from his bedroom were not contraband or the instrumentalities of a crime and were seized in violation of his constitutional rights; (2) he was denied his constitutional right to a fair trial by the erroneous admission into evidence of the gun box, holster, and gun catalog; and (3) he was denied his due process right to a fair trial by the prosecutor's summation. The Appellate Division affirmed the judgment of conviction on August 20, 2001, stating:
We agree with the determination of the hearing court that the items seized from the defendant's bedroom should not have been suppressed. The items were properly seized pursuant to the "plain view" doctrine, and properly recovered in a search incident to a lawful arrest. The defendant's contention that the trial court erred in admitting the items into evidence on the ground of relevancy is unpreserved for appellate review since he failed to raise the issue before the trial court.
The defendant's remaining contentions are either unpreserved for appellate review or without merit
People v. Mack, 730 N.Y.S.2d 437, 437-38 (2d Dep't 2001) (citations omitted). Mack's application for leave to appeal to the New York Court of Appeals was denied on December 19, 2001. People v. Mack, 97 N.Y.2d 684 (2001) (Ciparick, J.).

  In the instant petition for a writ of habeas corpus, Mack claims that (1) his conviction was obtained through the use of evidence seized pursuant to an unlawful arrest; (2) the evidence recovered from his bedroom should have been suppressed because it was unlawfully seized and should not have been admitted at trial because it was irrelevant to the Page 4 crimes with which he was charged and was admitted only to establish his propensity for violence; and (3) the prosecutor's summation deprived him of a fair trial.


 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 Page 5 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. l, 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 So. 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 ...

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