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April 28, 2004.

PEDRO GARCIA, Petitioner,
CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.

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


Pedro Garcia petitions for a writ of habeas corpus, challenging his convictions in state court. On March 26, 2004, I held oral argument, in which Garcia participated by telephone conference. The petition is denied for the reasons set forth below.

  BACKGROUND The government's evidence at trial established that, on February 12, 1995, Garcia went on a shooting rampage. He shot and killed his wife, Evelyn, in front of their four-year-old daughter, Venus. He shot Evelyn's son, Michael Alicea, in the face at point-blank range and then shot her nephew, David Alicea, in the arm. Within minutes, the police responded to the crime scene, learned from the surviving victims that Garcia was the shooter, and arrested him.

  Garcia was charged with murder in the second degree, two counts of attempted murder in the second degree, two counts of assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree.

  Before the jury was charged, defense counsel moved for a mistrial based on the prosecutor's conduct during summation. Defense counsel claimed that the prosecutor deprived Garcia of a fair trial by, among other things, attempting to appeal to the emotions of the jury, introducing evidence outside the record, denigrating defense counsel and vouching for the government's witnesses. The trial judge denied this motion.*fn1

  The jury found Garcia guilty of murder in the second degree, one count of attempted murder in the second degree (relating to Michael Alicea), assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. He was acquitted of the second count of attempted murder (relating to David Alicea), and of second degree assault. Garcia was sentenced, as a second felony offender, to consecutive prison terms of twenty-five years to life on the murder conviction, twelve and one-half to twenty-five years for the attempted murder conviction, seven and one-half to fifteen years for the first-degree assault conviction, and from three and one-half to seven years for the reckless endangerment conviction. Additionally, he was sentenced to a concurrent prison term of seven and one-half to fifteen years for the weapons conviction.

  Garcia, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel argued that Garcia should receive a new trial because prosecutorial misconduct during the summation deprived him of a fair trial. In particular, counsel alleged that the prosecutor improperly: (1) argued facts not in evidence (i.e., that Garcia was on parole at the time of the shooting, and that he was using drugs in violation of parole); (2) tried to appeal to the emotions of the jury; (3) denigrated defense counsel by belittling his arguments; (4) shifted the burden of proof to the defense; and (5) vouched for the credibility of government witnesses.

  The Appellate Division rejected all of these challenges and affirmed Garcia's conviction on January 31, 2000. People v. Garcia, 702 N.Y.S.2d 847 (2d Dep't 2000). The court stated:
The defendant's contention that reversal is required due to the prosecutor's improper summation is largely unpreserved for appellate review. In any event, the challenged comments do not require reversal. A prosecutor has broad latitude during summation, particularly when responding to defense counsel's summation, and here the prosecutor's statements were, for the most part, fair comment on the evidence, or fair response to the defense summation, which extensively attacked the credibility of the People's witnesses. Furthermore, the evidence of the defendant's guilt was overwhelming, rendering any error harmless.
Id. (internal citations omitted). The Court of Appeals denied Garcia's application for leave to appeal on April 11, 2000. People v. Garcia, 94 N.Y.2d 947 (2000). Garcia then filed a motion for reconsideration, pro se. The Court of Appeals granted reconsideration, but denied the application once again on June 29, 2000. People v. Garcia, 95 N.Y.2d 835 (2000).

  On February 15, 2001, Garcia filed a pro se petition for a writ of habeas corpus in this Court, on the same grounds raised by his appellate counsel 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, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (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)).

  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 factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or ...

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