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May 24, 2004.

JAMES J. WALSH, Superintendent, Sullivan Correctional Facility, Respondent.

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


Tony Francesehi petitions for a writ of habeas corpus, challenging his convictions in state court. On April 16, 2004, I held oral argument, in which Francesehi participated by telephone conference. The petition is denied for the reasons set forth below. BACKGROUND

  The government's evidence at trial established that, on December 18, 1977, Tony Francesehi and Vincent Cilone struck off-duty Officer Ronald Stapleton in the face with a sharp instrument and then shot him twice, outside the Trade Winds Bar in Brooklyn. Robert Race, a detective at the time, met Stapleton at the emergency room where Stapleton relayed that he was grabbed by a couple of guys who beat him up, struck him in the face with a sharp instrument, and then, shot him. Stapleton died of complications from the gunshot wounds.

  The case remained unsolved until nearly twenty years later, when the federal government indicted mobster Frank Gioia in another case. Gioia provided information to the police about the Stapleton murder after he found out that his fiancee, the niece of Francesehi, cheated on him with another man. Specifically, Gioia reported that Francesehi had boasted to him on several occasions that he had been involved in the murder of an off-duty police officer many years ago. The details provided by Gioia matched those of Stapleton's murder. Mobster Michael Cilone, Vincent Cilone's brother and a nephew of Francesehi's wife, also reported that Francesehi had similarly boasted to him numerous times.

  As a result of this belated information, almost twenty-one years after Stapleton was murdered, Francesehi was finally charged with his murder. The jury found him guilty of murder in the second degree and he was sentenced to a term of imprisonment of twenty-five years to life.

  Francesehi, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel raised the following claims: (a) the evidence was legally insufficient to support Francesehi's conviction; (b) the prosecutor improperly elicited testimony on Francesehi's post-arrest demeanor; (c) the trial court incorrectly denied Francesehi's request for a circumstantial evidence charge which incorporates a "moral certainty" standard; and (d) the trial court's Allen*fn1 charge was improper.

  The Appellate Division rejected all of these challenges and affirmed Francesehi's conviction on October 29, 2001. People v. Francesehi, 733 N.Y.S.2d 193 (2d Dep't 2001). The court ruled as follows:
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Additionally, the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's contention that the trial court should have declared a mistrial based on the prosecutor's reference to the defendant's postarrest demeanor is without merit. The trial court promptly instructed the jury to strike the reference from their minds, and followed up that instruction in detail in its jury charge. Furthermore, because the defendant declined the court's offer to give further curative instructions, any contentions related to the sufficiency of those instructions are unpreserved for appellate review (see, CPL 470.05 [2]). The defendant's remaining contentions are unpreserved for appellate review.
Id. (internal citations omitted). The Court of Appeals denied Francesehi's application for leave to appeal on December 21, 2001. People v. Francesehi, 738 N.Y.S.2d 297 (2001).

  On April 28, 2002, Francesehi 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 that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, ...

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