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April 30, 2004.

RAMON TORRES, Petitioner,
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent.

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


Petitioner Ramon Torres, an inmate at the Sing Sing Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument by teleconference on April 30, 2004. For the reasons set forth below, the petition is denied. BACKGROUND

  On October 11, 1998, at around 9:30 p.m., Torres fired a pistol out of his third-floor apartment window, striking Gregory Nelson, Jr. in the neck and killing him. Torres was charged with murder in the second degree and criminal possession of a weapon in the second and fourth degrees. He was convicted by a jury of murder in the second degree on June 14, 1999, and sentenced to fifteen years to life imprisonment.

  Torres thereafter moved in New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming that he was denied the effective assistance of counsel because his attorney did not put forth the defense of justification. On November 20, 2000, the court denied Torres's motion:
In support of this motion, the defendant relies on the trial evidence, the record of his trial attorney's conduct, and a telephone conversation appellate counsel had with trial counsel after the trial. In that conversation when asked if he had considered the defense of justification, trial counsel replied "that he felt that such a defense `just wasn't there' and, `couldn't be established' since defendant used deadly physical force on a group of people who were outside the apartment. . . ."
To the extent that the defendant's motion relies substantially on the trial evidence and the record of trial counsel's conduct, his claim is surely reviewable on the judgment appeal. To the extent that the defendant's motion relies on the brief comments of trial counsel in a telephone conversation with appellate counsel, the motion fails to support a claim of ineffective assistance of counsel.
Nothing in that telephone conversation supports the claim that trial counsel was not aware of the defense of justification, did not properly investigate or research it, or deprived the defendant of the effective assistance of counsel by [not] raising it. No trial evidence is cited establishing that the defendant was responding to "the imminent use of offensive deadly physical force against him or another by an assailant." The evidence at trial establishes that the defendant had retreated to the safety of his apartment before he fired the fatal shot and that he fired the shot "to scare them away[,]" not to defend himself or another from the offensive use of deadly physical force by another.
Under these circumstances, the defendant's motion is insufficient to warrant any relief.
People v. Torres, Indictment No. 10375/1998, slip op. at 1-2 (N.Y.Sup.Ct. Nov. 30, 2000) (citations omitted) (ellipsis in original) (Resp. Ex. D). The Appellate Division, Second Department, denied Torres leave to appeal this decision on March 13, 2001.
  Torres then appealed his conviction to the Appellate Division, raising the same claim he had raised in his § 440.10 motion, i.e., that he was denied effective assistance because his trial attorney did not raise a justification defense. The Appellate Division unanimously affirmed Torres's conviction:
Contrary to the defendant's contention, he was not denied the effective assistance of counsel because the defense counsel did not raise a justification defense. A review of the record indicates that the defense counsel implemented a reasonable strategy at all stages of the trial. In any event, there was no basis for raising a justification defense. Viewed in the light most favorable to the defendant, the evidence was insufficient to establish that he shot the victim while the victim was attempting to commit a burglary.
The defendant's remaining contentions are without merit.
People v. Torres, 732 N.Y.S.2d 898, 899 (2d Dep't 2001) (citations omitted). Leave to appeal to the New York Court of Appeals was denied. People v. Torres, 97 N.Y.2d 762 (2002) (Kaye, C.J.). Torres now raises the same claim in the instant petition.


  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, 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."); Wiggins, 539 U.S. 510, 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 that the factual premise was incorrect by clear and convincing evidence." Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).
B. Torres's Claim: Ineffective Assistance of Trial Counsel

  Torres claims that his trial attorney provided ineffective assistance by failing to raise the defense of justification; specifically, justification based on Torres's reasonable belief that ...

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