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
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
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