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United States District Court, S.D. New York

June 16, 2004.

MARVIN PEAKES, Petitioner,
ELIOT SPITZER, New York State Attorney General, & J. ALLARD, Superintendent, Franklin Correctional Facility, Respondents.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Richard M. Berman, United States District Judge:

Pro se petitioner Marvin Peakes*fn1 seeks a writ of habeas corpus from his June 5, 2000 conviction of second degree robbery and sentence of fifteen years imprisonment (Dkt. No. 1: Pet. ¶¶ 1-4), which was reduced by the First Department to ten years imprisonment, People v. Peaks, 297 A.D.2d 578, 578-79, 747 N.Y.S.2d 170, 170 (1st Dep't 2002).

  Peakes' habeas petition raises three grounds: (a) the trial court's refusal to instruct the jury on the lesser included offense of third degree robbery denied Peakes his due process right to a fair trial (Pet. ¶ 12(A)); (b) the fifteen-year sentence was harsh and excessive given Peakes' non-violent criminal history and the fact that the complainants suffered no injuries (Pet. ¶ 12(B)); and (c) the prosecutor's cumulative misconduct during summation deprived Peakes of a fair trial (Pet. ¶ 12(C)).

  For the reasons set forth below, Peakes' habeas petition should be DENIED.


  The Prosecution Case at Trial

  On the morning of December 20, 1998, complainants Francisco and Jean Tabone, a middle-aged married couple from Long Island, were walking south on Seventh Avenue in Manhattan toward Penn Station, when petitioner Peakes approached Mrs. Tabone, who was walking several paces ahead of her husband (J. Tabone: Trial Transcript ["Tr."] 168-69, 179-80; F. Tabone: Tr. 197, 198-99, 209.) Peakes said to Mrs. Tabone, "`I have a gun. Give me your money. I'm going to shoot.'" (J. Tabone: Tr. 169-70, 183-85.) Peakes had his hand in his pocket, which led Mrs. Tabone to believe that he actually did have a gun, although she never saw it. (J. Tabone: Tr. 169-70, 187-88.) Terrified, Mrs. Tabone turned to her husband and screamed: "`He's got a gun. He's going to shoot. Give him your money.'" (J. Tabone: Tr. 171, 185-86.) At that point, Peakes approached Mr. Tabone, pushed him up against the side of a building, and said, "`I have a gun in my pocket. If you don't hand over your money, I'm going to kill you.'" (F. Tabone: Tr. 200-01; J. Tabone: Tr. 171-72, 189, 193-94.) Peakes jabbed Mr. Tabone in the stomach with what Mr. Tabone assumed was a gun in Peakes' pocket. (F. Tabone: Tr. 201-03, 208, 211, 214-15.) Mr. Tabone gave Peakes the money from his wallet, about $80 to $100. (F. Tabone: Tr. 203-04, 213.) Peakes took the money with the other hand than the one in which he was pretending to hold the gun. (F. Tabone: Tr. 208.) After taking the money, Peakes walked uptown. (F. Tabone: Tr. 213.)

  The Tabones located Police Officer Michael Pfeffer outside of Macy's and informed him of what had happened. (J. Tabone: Tr. 173-74; F. Tabone: Tr. 204; Pfeffer: Tr. 253-54.) Officer Pfeffer relayed the Tabones' description of Peakes by radio to police in the area. (F. Tabone: Tr. 205; Pfeffer: Tr. 254.) Officers James Wojcik and Ronald Weintraub apprehended Peakes. (Wojcik: Tr. 218-23, 228.) Officer Thomas Davis drove to Officer Pfeffer's post, picked up the Tabones, and brought them to where Peakes was being held. (J. Tabone: Tr. 174-75; F. Tabone: Tr. 206; Davis: Tr. 238-39, 244; Pfeffer: Tr. 255; Stelmok: Tr. 265-67.) The Tabones positively identified Peakes from the police car. (J. Tabone: Tr. 175-76; F. Tabone: Tr. 206-07; Davis: Tr. 241.) The officers took Peakes into custody, and at the precinct searched him and recovered $118 from his jacket pockets, but no gun. (Wojcik: Tr. 227; Stelmok: Tr. 265, 268-70.) The parties stipulated that "the person who approached the Tabones and the person who was stopped by the police are both the defendant in this case, Mr. Marvin Peakes." (Tr. 246.)

  Both Mr. and Mrs. Tabone identified Peakes at trial as the robber. (J. Tabone: Tr. 172-73; F. Tabone: Tr. 205-07.)

  The Defense Case at Trial

  Marvin Peakes' testimony in his own defense was markedly different from the Tabones' in four respects. First, Peakes testified that he did not rob the Tabones but merely asked them for change for a twenty-dollar bill, since he had been propositioned by a prostitute who offered to charge him $10 or $15. (Peakes: Tr. 286-88, 298, 306-07, 325.) Second, Peakes testified that he never had his hands in his pockets, except to retrieve the twenty-dollar bill to give to Mr. Tabone, and never expressly said or intimated that he had a gun. (Peakes: Tr. 291, 305, 309, 311-12, 314, 325-28.) Third, Peakes testified that he possessed forty dollars before even approaching the Tabones and assumed that Mr. Tabone had mistakenly given him seventy-eight dollars out of sympathy, believing Peakes to be a "bum or derelict." (Peakes: Tr. 288-89, 297-98, 309-10.) Finally, Peakes testified that he did not push Mr. Tabone up against a wall or touch him in any way. (Peakes: Tr. 311-12, 330-31.) He also testified that while Mr. Tabone might have thought he was going to rob him because he (Peakes) is black, he had no reason to rob Mr. Tabone, since he had $16,000 in the bank, owned a house, and earned over $500 per week at his job. (Peakes: Tr. 331-32.)

  The Charge Conference

  At the charge conference outside the jury's presence, defense counsel requested instruction of the lesser included offense of third degree robbery. (Tr. 336.) The prosecutor argued that "[a]ccording to the defendant's own testimony, it would be [the prosecution's] position that it's really robbery in the second degree or nothing." (Tr. 336.) The judge initially agreed with the prosecutor but then asked for defense counsel's rationale. (Tr. 336.) Defense counsel argued that the jury could accept the Tabones' testimony that they felt "threatened [and] coerced" but reject the Tabones' testimony about the "simulated weapon." (Tr. 336.) The judge asked what evidence there was to show "use or threat of an immediate use of physical force," if the jury disbelieved the Tabones' testimony "about the gun." (Tr. 337.) Defense counsel cited Mr. Tabone's testimony of being "pushed up against the wall and touched at some point" and feeling "scared and . . . threatened." (Tr. 337) The prosecutor countered that any threat or coercion was due to Peakes' use of a simulated weapon, arguing that "it was the gun that actually put [Mr. Tabone] up against the wall." (Tr. 337.) Defense counsel responded that Mr. Tabone's testimony was unclear and inconsistent with his grand jury testimony regarding whether he could tell "if there was anything in the pocket or he thought there was a gun." (Tr. 337-38.) Defense counsel offered to look for case law supporting the defense's position. (Tr. 338.) The judge allowed defense counsel to conduct her research, and told both attorneys his "standard instruction" for robbery in the second degree:

[W]hat I plan on saying is, the Penal Law speaks about what appears to be a pistol. This means to display anything that appears to be such, though held inside a coat or otherwise obscured. Covered by this section of the Penal Law the defendant does consciously display something which could reasonably be conceived as a firearm, or for the purpose of defending or overcoming resistance. This must be witnessed in some manner by the victim. For example, it must appear to the victim that he is threatened by the firearm by sight, threat or sound.
(Tr. 339.) The following day, immediately prior to closing arguments, the judge asked defense counsel if she had found any case law on the lesser included offense charge; defense counsel answered "[n]o," and "rest[ed] on the record." (Tr. 341.) The judge ruled that he would give the jury only "the top count . . . [t]he only count," second degree robbery. (Tr. 341.)

  The Defense Summation

  Defense counsel's closing argument addressed the Tabones' credibility. (Def. Summation: Tr. 356-66) Defense counsel described Mrs. Tabone as an "out-of-towner[]" on an "excursion" who, because she was not accustomed to being solicited for money, ultimately became "hysterical," "overreacted," and "jumped to the wrong conclusion." (Def. Summation: Tr. 356-60.) Defense counsel argued that "maybe [Mr. Tabone was] a little embarrassed he gave his money over right away," and perhaps he did feel threatened and as if he were being robbed, but, in fact, it was merely an incident that "got blown out of proportion" and "was something it never was." (Def. Summation: Tr. 362-63, 366.) Defense counsel described the incident:

. . . [T]he Tabones, let's be fair, they're here on a nice weekend. They just saw a nice show and went to a nice dinner. They're having a good time. They don't want this. They don't need this. They were approached by a guy[,] they felt threatened and frightened and they wanted him to go away. Maybe they thought they were being robbed and they gave the money and they looked at each other, what happened? We were robbed and we better talk to the police. [The Tabones] knew they never voluntarily would turn over seventy, eighty dollars, so they spoke with the police and the police said, "Was there a weapon"? Well, maybe, there might have been and this snowball starts rolling down the hill out of control.
(Def. Summation: Tr. 363-64.)

  The Prosecution Summation

  In his closing argument, the prosecutor argued that the jury needed to decide whether Peakes was telling the truth:

[A.D.A.] O'ROURKE: [W]hat does this trial come down to? Well, we always have to prove our case beyond a reasonable doubt. That is the People['s] burden. But when the defendant takes the stand and testifies and says, no, it didn't happen that way, the job of the jury becomes very crystal clear as fact finders, who is being truthful, and whose story fits and makes sense?
[DEFENSE COUNSEL]: Judge, that's not the standard.
THE COURT: Overruled.
(State Summation: Tr. 369.)

  The prosecutor attacked Peakes' credibility by pointing out the lack of corroborating evidence to support Peakes' testimony that he owned a house, possessed a bank account, and that he had a relative that he claimed was the reason he had come into New York from New Jersey: [A.D.A.] O'ROURKE: . . . There's no evidence besides the defendant's words about owning a house. They have no burden, but there's no evidence to support —

  [DEFENSE COUNSEL]: Objection.

  THE COURT: Overruled.


[A.D.A.] O'ROURKE: — there's no evidence to support these things he said to you. . . .
(State Summation: Tr. 369-70.)


[A.D.A.] O'ROURKE: [Peakes] needs to explain a lot of different things to you to try to come across as credible. That's what he needs to do. So he has to explain first why he's in Manhattan, okay? It's Christmas season. I was bringing Christmas presents up to my cousin early in the morning. A cousin, I believe, he's still in touch with. A cousin who could easily have been here.
THE COURT: Overruled.
. . .
[A.D.A.] O'ROURKE: [Peakes] gives you all of these explanations. That he's trying to explain all this stuff. Why would I want to do a robbery? I got money. There's no evidence of that.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: He has no burden. But wouldn't it be important, couldn't you bring in a bank statement? There's no evidence of that. It's nonsense.
(State Summation: Tr. 377-79.) The prosecutor attempted to undermine the significance of Peakes' sworn testimony:
[A.D.A.] O'ROURKE: [T]he defendant is a convicted felon. What can you do with that? Well, no one is asking anybody to say because somebody is convicted of a crime that they would ever commit another crime. Nobody is asking that. But what does it mean? It means that this person when it's good for him Marvin Peak[e]s is willing to put all of his interests above the rest of a community, above the rest of society. An oath, an affirmation, swearing to tell the truth is not something that's going to put Mr. Peak[e]s on that stand and say well, you know I did target Mrs. Tabone. I saw her alone. I saw her probably going towards Macy's. I figured she had a pocketful of money and that's why I went to take her off. I went to rob her. I never expected the husband to come on, but when he did I had to react to that and you know what? I'm sorry. That's not what happens in every day life. That's what happens on TV. That's what happens in scripts. In movies. I have been doing this for nearly five years —
THE COURT: Overruled.
[A.D.A.] O'ROURKE: Never once have I ever seen in any courtroom somebody come and breakdown during cross-examination, during the cross-examination —
THE COURT: Overruled.
[A.D.A.] O'ROURKE: — and say, okay, you got me. I actually did rob him. I had the gun. They don't do that and don't expect that.
(State Summation: Tr. 385-87.)

  The prosecutor continued by arguing for the Tabones' credibility: I submit to you, [the Tabones are] honest, careful and they're thoughtful about their testimony and it makes sense.

 (State Summation: Tr. 375.)


[A.D.A.] O'ROURKE: [Defendant's case] means that the Tabones are liars. . . . They didn't misunderstand . . . Mr. Tabone worked for the Sanitation Department for 35 years. There's not some clash of cultures. Mr. Tabone is just a hard working regular guy.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: And this clash of cultures [the defense goes] into is turning into a gun-point robbery? . . . You just don't get there from the Tabones' testimony.
(State Summation: Tr. 380-81.) The prosecutor also commented on the disinterestedness of the Tabones. (State Summation: Tr. 383: "[T]here is no motive for these people [the Tabones] to come into this courtroom and to mislead you. To be untruthful to you.") Defense counsel did not object to this remark.

  The prosecutor characterized Peakes' version of the events as "garbage" and described the defense's theory that Mrs. Tabone was incapable of comprehending her situation as "ridiculous." (State Summation: Tr. 370-71.) Defense counsel failed to object to either of those comments. Also, the prosecutor later commented that:

You have no reason, I submit to you, not to believe what the Tabones have come here and told you happened on that day. Everything fits. Everything fits and you have every reason to look at the [] defendant's testimony and say he just has all these explanations to try to wiggle his way out of this. He doesn't want to be held accountable for what he's done.
[DEFENSE COUNSEL]: Objection. THE COURT: Overruled.
[A.D.A.] O'ROURKE: I tell you don't let him do that. Don't let him do that. Use your common sense and hold that man [Peakes] accountable for robbing Mr. Frank Tabone on December 20, 1998, by displaying what Mr. Tabone thought was a gun. . . . I ask you in the name of the People of the State of New York, it's your duty and it's your obligation to hold him accountable for what he did on that day.
(State Summation: Tr. 389-90.)

  Post-Summation Conference

  After the conclusion of the prosecutor's summation and the court's charge of the jury (Tr. 390-416), the judge heard the grounds for defense counsel's objections during the prosecutor's summation. (Tr. 418-22.)

  With regard to the defense's objection to the prosecutor's comment that "the jury should weigh one story against the other," defense counsel argued that the prosecutor introduced an improper legal standard and more specifically was "shifting the burden of proof" from prosecution to defense. (Tr. 418.)*fn2

  The defense also argued that the prosecution's comment about Peakes' "having no bank book to prove that he had a house," was also based on an improper "shifting [of] the burden of proof." (Tr. 418.) Defense counsel further argued that the prosecutor had no "good faith basis to make that comment and he certainly didn't cross-examine on that point." (Tr. 419.) Defense counsel averred that Peakes did, in fact, possess "such documentation" but that her specific objection was to the "shifting [of] the burden of proof." (Tr. 419.)

  Defense counsel objected to the prosecutor's characterizing defense counsel's argument as "ridiculous" because "demeaning counsel's arguments" is "inappropriate." (Tr. 419.)

  Defense counsel based her next objection (i.e., the prosecutor's mention of a cousin "who could have easily been here" (State Summation: Tr. 377-78)) on the interpretation that "here" meant "in the audience." (Tr. 419.) Based on that interpretation — that "no one showed up for" Peakes — defense counsel argued that such a comment was an improper means to discredit the defendant. (Tr. 419.) The prosecutor interjected: "I don't think I actually said that he had no family in the audience." (Tr. 419.) The judge also "didn't get the impression about sitting in the audience." (Tr. 420.)

  Defense counsel's next objection — that the prosecutor's comment regarding Peakes' lack of any evidence besides his own testimony to corroborate the existence of a bank account — was again based on defense counsel's belief that the prosecutor improperly was "shifting the burden of proof." (Tr. 420.)

  Defense counsel argued that the prosecutor's mention of Mr. Tabone's employment history was improper "vouch[ing] for the witness." (Tr. 421.)

  Defense counsel's next objection, with regard to the prosecutor's mention of his own personal experience of never seeing a witness "breakdown" (State Summation: Tr. 386), was based on defense counsel's belief that "the ADA was testifying and injecting himself inappropriately into the proceedings." (Tr. 421.) Defense counsel asserted that the prosecutor's mention of the defendant trying to "wiggle his way out of this," was an "improper comment on Mr. Peak[e]s' testimony." (Tr. 421.)

  Defense counsel's final objection was to the prosecutor's final remark about the jury's "duty" and "obligation" to hold Peakes "accountable for what he did on that day" (State Summation: Tr. 390):

My last objection and I didn't make it contemporaneous because it was the very last thing the prosecutor said, but he said something to the effect that it's the duty of the people . . . of the State of New York it's your duty to come back with a guilty verdict and hold [Peakes] accountable, and I believe that's improper because I believe that implies that [the jurors] have a state sanction[ed] approval to and indeed in some way they should, come back with a guilty verdict. So for those reasons I'm objecting to the People's final comment as improper.
(Tr. 421-22.)

  Defense counsel moved for a mistrial based on "the many errors in the summation as to prosecutorial misconduct." (Tr. 422.) The prosecutor relied on the record. (Tr. 422.) The judge denied the motion, stating that "the prosecutor's comments were appropriate in the context." (Tr. 422.)

  Deliberations, Verdict and Sentence

  During deliberations, the jury submitted a note asking: "Can the defendant be charged with a lesser crime/charge? . . ." (Tr. 423.) The judge told counsel that "I think the answer to th[at] . . . question is quite simply no, in view of the fact that I refused to charge it." (Tr. 423.) Defense counsel attempted to argue that the request was evidence to support her motion during the charge conference; however, the judge disagreed: "Frankly, I think it's evidence that they [the jurors] want to reach a compromised verdict." (Tr. 423-24.) The judge told the jurors in answer to their note, "[t]he answer to that is no. You must decide whether or not the People have proved beyond a reasonable doubt the crime which I presented to you earlier." (Tr. 424-25.)

  On August 12, 1999, the jury found Peakes guilty of the sole count of second degree robbery. (Verdict: Tr. 446-48.)

  On June 5, 2000, Peakes was sentenced as a predicate felon to the maximum allowed, fifteen years imprisonment. (6/5/00 Sentencing Tr. 5-6, 16.)

  Peakes' Appeal

  On appeal to the First Department, Peakes' appellate counsel's brief raised two grounds: (1) the trial court's refusal to charge third degree robbery as a lesser included offense of second degree robbery constituted a violation of Peakes' due process right to a fair trial (Dkt. No. 5: Gill Aff. Ex. A: Peakes 1st Dep't Br. at 8-12); and (2) the sentence of fifteen years was harsh and excessive (Peakes 1st Dep't Br. at 12-14). In a supplemental pro se brief, Peakes added a prosecutorial misconduct claim, alleging that several of the prosecutor's comments in summation improperly bolstered the prosecution witnesses' testimony, shifted the burden to Peakes, interfered with the jury, and mischaracterized Peakes' case, depriving him of a fair trial and due process. (Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br. at 3-17.)

  On September 24, 2002, the First Department affirmed Peakes' conviction:

The court properly declined to submit robbery in the third degree as a lesser included offense of robbery in the second degree since there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater. Each victim's testimony that defendant held his hand inside his pocket in a manner making it appear that he was holding a gun, and that defendant also threatened to shoot the victims, constituted an integrated whole. Such testimony clearly established that defendant displayed what appeared to be a firearm within the meaning of Penal Law § 160.10(2)(b). There was no evidence suggesting that the robbery was committed in some other manner, particularly since defendant testified that there was no robbery at all.
. . . .
The contentions contained in defendant's pro se supplemental brief are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
People v. Peaks, 297 A.D.2d 578, 579, 747 N.Y.S.2d 170, 170-71 (1st Dep't 2002) (citations omitted). The First Department, however, "in the interest of justice . . . reduc[ed] the sentence to a term of 10 years." Id. at 578-79, 747 N.Y.S.2d at 170.

  The New York Court of Appeals denied leave to appeal on December 19, 2002. People v. Peaks, 99 N.Y.2d 562, 754 N.Y.S.2d 215 (2002).

  Peakes' Federal Habeas Corpus Petition

  Peakes' timely-filed federal habeas corpus petition raises three grounds: (a) the trial court's refusal to instruct the jury on the lesser included offense of third degree robbery denied Peakes his due process right to a fair trial (Dkt. No. 1: Pet. ¶ 12(A)); (b) the fifteen-year sentence was harsh and excessive given Peakes' non-violent criminal history and the fact that the complainants suffered no injuries (Pet. ¶ 12(B)); and (c) the prosecutor's cumulative misconduct during summation deprived Peakes of a fair trial (Pet. ¶ 12(C)).


  I. THE AEDPA REVIEW STANDARD*fn3 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] Before the Court can determine whether Peakes is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

  In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).*fn4 The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn5 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn6 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn7

  In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 So. Ct. at 1523.*fn8 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn9 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 So. Ct. at 1521.*fn10 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn11 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S.Ct. at 2149.*fn12 Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn13

  Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

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.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected defendants' remaining claims,'" AEDPA deference applies.); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn14 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn15 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

  Peakes' lesser included offense and excessive sentence claims were decided on the merits by the First Department (see pages 13-14 above), and thus AEDPA deference applies. Peakes' prosecutorial misconduct claim is partly barred by an adequate and independent state ground and the rest is entitled to AEDPA deference. (See page 30 below.) II. PEAKES' LESSER INCLUDED OFFENSE JURY CHARGE CLAIM SHOULD BE DENIED

  Peakes claims that the trial court's "refusal to charge the lesser included offense of Robbery 3° [in the third degree] denied [him] his Due Process right to [a] fair trial." (Dkt. No. 1: Pet. ¶ 12(A).) The First Department denied this claim on the merits (see pages 13-14 above), and thus under the AEDPA the issue is whether the First Department's decision involved an unreasonable application of Supreme Court precedent. (See pages 18-19 above.)

  The Supreme Court has not directly addressed whether the Due Process Clause requires a jury instruction of a lesser included offense in a non-capital case. In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382 (1980), the Supreme Court held that "if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the state] is constitutionally prohibited from withdrawing that option from the jury in a capital case." Beck v. Alabama, 447 U.S. at 638, 100 S.Ct. at 2390.*fn16 The Supreme Court in Beck expressly reserved the question of whether this principle also should apply to non-capital cases. Beck v. Alabama, 447 U.S. at 638 n. 14, 100 S.Ct. at 2390 n. 14 ("We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.").

  In Rice v. Hoke, 846 F.2d 160 (2d Cir. 1988), the Second Circuit addressed the issue of instruction of lesser included offenses in non-capital cases: [Petitioner] argues that the trial court's refusal to instruct on the lesser included offenses deprived him of due process. The State, on the other hand, argues that [petitioner's] petition is not subject to habeas review because it states neither a federal claim nor a perceived error of state law amounting to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment. . . . Although the Supreme Court has determined that in capital cases a judge must charge the jury on lesser included noncapital offenses where the evidence warrants such a charge, see Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 2384 (1980), it has expressly reserved the question whether due process requires a lesser included offense instruction in a noncapital case. Id. at 638, n. 14, 100 S.Ct. at 2390 n. 14. This circuit has not yet ruled on this issue. See, e.g., Harris v. Scully, 779 F.2d 875, 880 (2d Cir. 1985) (evidence did not warrant instruction on lesser included offense); Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985) (defendant requested instruction on crime that was not lesser included offense of crime charged); cf. United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974) (jury charge in state trial not normally reviewable on federal habeas corpus absent showing that alleged errors deprived defendant of constitutional right), cert. denied, 423 U.S. 856, 96 S.Ct. 106 (1975). The circuit courts that have considered the issue are divided. The Fifth, Eighth, and Ninth Circuits hold that failure to instruct on a lesser offense does not present a federal constitutional question and therefore will not be considered in a federal habeas proceeding. Cooper v. Campbell, 597 F.2d 628, 631 (8th Cir.), cert. denied, 444 U.S. 852, 100 S.Ct. 106 (1979); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976); Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir. 1975) (per curiam). On the other hand, the Third, Sixth, and Seventh Circuits hold that federal courts have jurisdiction to review the refusal to instruct on lesser included offenses if the refusal deprived the defendant of due process. Bishop v. Mazurkiewicz, 634 F.2d 724, 725 (3d Cir. 1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053 (1981); Brewer v. Overberg, 624 F.2d 51, 52 (6th Cir. 1980) (per curiam), cert. denied, 449 U.S. 1085, 101 S.Ct. 873 (1981); Davis v. Greer, 675 F.2d 141, 143-44 (7th Cir.), cert. denied, 459 U.S. 975, 103 S.Ct. 310 (1982).

 Rice v. Hoke, 846 F.2d at 164-65 (emphasis added).*fn17 The Second Circuit in Rice in dicta stated that there was "some merit" in petitioner's argument, but found that the trial judge correctly ruled that the evidence did not warrant the instruction and thus it "need not decide whether the failure to give an instruction on lesser included offenses in a non-capital case presents a constitutional claim." Rice v. Hoke, 846 F.2d at 165.*fn18

  More recently, the Second Circuit has reiterated its lack of position on the matter. In Knapp v. Leonardo, 46 F.3d 170 (2d Cir.), cert. denied, 515 U.S. 1136, 115 S.Ct. 2566 (1995), the Second Circuit held that "[n]either the Supreme Court nor this circuit has decided whether the failure to instruct a jury on lesser included offenses in noncapital cases is a constitutional issue that may be considered on a habeas petition." 46 F.3d at 179 (citing Rice v. Hoke).*fn19 In Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (per curiam), another pre-AEDPA decision, the Second Circuit expanded on its rationale for declining to rule on the issue, holding that "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule," which would be barred by the Supreme Court's ruling in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989).

  After passage of the AEDPA, District Courts within the Second Circuit have recognized that both the Supreme Court and the Second Circuit have not decided whether a lesser included offense charge is required in non-capital cases, and thus have denied habeas relief under the AEDPA standard. See, e.g., Smith v. Barkley, No. 99-CV-0257, 2004 WL 437470 at *5-6 (N.D.N.Y. Feb. 18, 2004); Lindsey v. Fischer, 02 Civ. 1668, 2004 WL 112884 at *7 (S.D.N.Y. Jan. 23, 2004) (Because the Supreme Court has left the issue open and the Second Circuit refrained from deciding the issue in Jones v. Hoffman based on Teague, therefore "Petitioner's claim is not cognizable under current habeas corpus law," i.e., was not an unreasonable application of Beck v. Alabama.); Fleurant v. Duncan, No. 00-CV-7647, 2003 WL 22670920 at *9 (E.D.N.Y. Nov. 7, 2003); Smith v. Walsh, 02 Civ. 5755, 2003 WL 21649485 at *8 (S.D.N.Y. July 14, 2003); House v. Miller, No. 02-CV-5379, 2003 WL 23198788 at *15-16 (E.D.N.Y. Oct. 27, 2003) (Weinstein, D.J.) (decision not to charge lesser included offense was not "an unreasonable application of Supreme Court precedent, or even erroneous under New York state law"); Davis v. Herbert, No. 02-CV-04908, 2003 WL 23185747 at *14 (E.D.N.Y. Oct. 24, 2003) (Weinstein, D.J.) ("There is no Supreme Court authority requiring state courts to charge lesser included offenses in anything other than a death penalty case."); Greene v. Fisher, No. 02-CV-3854, 2003 WL 22956997 at *11 (E.D.N.Y. Oct. 16, 2003) (Weinstein, D.J.) ("The defendant's claim regarding the refusal of the court to charge the [lesser included offense] cannot furnish the basis for habeas relief because the Supreme Court of the United States has never held in a non-capital case, an accused is constitutionally entitled to the submission of any lesser included offenses."); Collins v. Greiner, No. 02-CV-4727, 2003 WL 22953067 at *12 (E.D.N.Y. Oct. 15, 2003) (Weinstein, D.J.); Willis v. Duncan, No. 00-CV-4171, 2003 WL 21845664 at *6 (E.D.N.Y. Aug. 4, 2003) (Weinstein, D.J.); Rattray v. Brown, 261 F. Supp.2d 149, 155 (E.D.N.Y. 2003); Barnes v. Giambruno, 01 Civ. 8965, 2002 WL 850020 at *7-8 (S.D.N.Y. May 2, 2002); Long v. Andrews, No. 99-CV-7553, 2000 WL 1716443 at *3 (E.D.N.Y. Nov. 13, 2000) ("Because there is no Supreme Court precedent on the issue, the Appellate Division's rejection of petitioner's [lesser included offense] claim cannot have been contrary to, or an unreasonable interpretation of, clearly established federal law," citing Beck v. Alabama and Jones v. Hoffman. In any event, state courts correctly held that evidence did not support the charge.); Stephens v. Ross, No. 97-CV-719, 1997 WL 1068711 at *7-8 (E.D.N.Y. Dec. 10, 1997) (same reasoning as Long); Allah v. Kelley, 32 F. Supp.2d 592, 597 (W.D.N.Y. 1998); Garcia v. Keane, 973 F. Supp. 364, 367-69 (S.D.N.Y. 1997).*fn20

  Here, as in these prior cases, this Court cannot hold that the First Department unreasonably applied Supreme Court precedent, because the only Supreme Court case on the issue of lesser included offenses, Beck v. Alabama, specifically ruled only as to capital cases and specifically reserved decision as to non-capital cases. (See page 23 above.) The Supreme Court has recognized, in Beck and other cases, that "death is different." See, e.g., Ring v. Arizona, 536 U.S. 584, 605-06, 122 So. Ct. 2428, 2441 (2002) ("There is no doubt that `death is [d]ifferent'"); Lankford v. Idaho, 500 U.S. 110, 125, 111 So. Ct. 1723, 1732 (1991); Solem v. Helm, 463 U.S. 277, 289, 294, 103 S.Ct. 3001, 3009, 3011 (1983); Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204 (1977) ("death is a different kind of punishment from any other which may be imposed in this country"); Beck v. Alabama, 447 U.S. at 637-38 & n. 13, 100 S.Ct. at 2389-90 & n. 13. Neither the Second Circuit nor any district court case in this Circuit has extended Beck to non-capital cases. This Court cannot say that the First Department's decision was an unreasonable application of or an unreasonable failure to extend Beck v. Alabama. See Yarborough v. Alvarado, 124 S.Ct. 2140, 2149 (2004) (quoted at pages 19-20 n. 12 above). Accordingly, Peakes' lesser included offense habeas claim should be denied pursuant to the AEDPA.*fn21 III. PEAKES' EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

  Peakes' habeas petition asserts that his sentence of fifteen years is unconstitutional because it is "harsh and excessive given [Peakes'] otherwise non-violent [c]riminal past and the[] fact that complainants suffered no injuries." (Dkt. No. 1: Pet. ¶ 12(B).) As an initial matter, the Court notes that while Peakes' habeas petition continues to challenge a fifteen-year sentence, Peakes' sentence was reduced to ten years on direct appeal. People v. Peaks, 297 A.D.2d 578, 578-79, 747 N.Y.S.2d 170, 170 (1st Dep't 2002).

  Peakes' excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).*fn22 In this case, it is undisputed that Peakes' sentence was within the range prescribed by state law. Peakes was found guilty of second degree robbery, and sentenced as a second felony offender to a determinate prison term of fifteen years, reduced on appeal to ten years. Second degree robbery is a Class C violent felony, Penal Law § 70.02(1)(b), § 160.10, and for a second felony offender the court must impose a determinate sentence with a maximum term of fifteen years. Penal Law § 70.06(6)(b).

  Because Peakes' sentence is within the statutory range, it is not reviewable by this Court for "excessiveness." (See cases cited at page 29 n. 22 above.)


  Peakes claims that the "cumulative misconduct of the prosecutor se[v]erely prejudiced [him] depriving him of a fair trial and Due process of Law." (Dkt. No. 1: Pet. ¶ 12(C).) The "cumulative misconduct" to which Peakes refers occurred solely during the prosecutor's summation. (Dkt. No. 5: Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br.) Peakes alleges that his right to a fair trial was compromised by the prosecutor's misconduct during summation when he, inter alia, "repeatedly asked about defendant's failure to show evidence of ownership of property and finance statements which had already been presented in testimony." (Pet. ¶ 12(C).) Peakes claims that the prosecutor improperly bolstered and vouched for his witnesses' credibility, interjected himself as an unsworn witness, shifted the burden of proof, and denigrated the defense's argument. (Dkt. No. 5: Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br. at 4-18.)

  Every objection that Peakes' counsel made during the prosecutor's summation was overruled. (See pages 6-10 above.) After summation and the judge's charge to the jury, Peakes' counsel explained her objections in more detail for the record and moved for a mistrial. (see pages 10-12 above.) The trial court denied the motion, deeming the prosecutor's comments "appropriate in the context." (See page 12 above.)

  On direct appeal, Peakes submitted a pro se supplemental brief, raising prosecutorial misconduct claims based on his counsel's objections. (See Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br.) The First Department held: "The contentions contained in defendant's pro se supplemental brief are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them." People v. Peaks, 297 A.D.2d 578, 579, 747 N.Y.S.2d 170, 171 (1st Dep't 2002).

  To the extent Peakes' habeas petition is intended to incorporate his Pro Se Supplemental First Department Brief's claims as to several comments by the prosecutor that were not objected to at trial, such claims are barred:*fn23 The Second Circuit (and district courts within the Circuit) have held that failure to object to the prosecutor's summation is an adequate and independent state ground sufficient to bar habeas relief. See, e.g., Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir.) (petitioner's claim barred from habeas review for failure to object to prosecutor's summation statements), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996); Reardon v. Richardson, 956 F.2d 391, 391-92 (2d Cir. 1992); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *10 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.).*fn24 Accordingly, Peakes' claim is barred from habeas review as to those prosecutorial comments to which Peakes' counsel did not object at trial.

  To the extent Peakes' counsel objected to the other alleged comments, the First Department's alternative holding that were it to review the claims it "would reject them" (see page 14 above) is a sufficient decision on the merits to be entitled to the deferential AEDPA review standard. See, e.g., Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *13 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.) (Claims that First Department held "unpreserved" but also without merit "either will be found barred from habeas review by an independent and adequate state law ground or, were the Court to reach the merits, the deferential AEDPA review standard would apply."); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *11 (S.D.N.Y. July 18, 2002) (Peck, M.J.) ("[T]he First Department's holding is an adequate and independent state procedural ground that bars federal habeas review . . ., but because of the First Department's alternative holding on the merits, to the extent the federal courts reach the merits of the sentencing claim, the deferential AEDPA review standard applies.").

  "Prosecutorial misconduct violates a defendant's due process rights only when it is of `sufficient significance to result in the denial of the defendant's right to a fair trial.'" Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *25 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109 (1987)); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991).*fn25 Stated another way, "the law is settled that `federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S.Ct. 230 (1994).*fn26

  To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is important `as an initial matter to place th[e] remar[k] in context'"); United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986).*fn27

  First, Peakes claims that the prosecutor vouched for and bolstered his witnesses' credibility. (Dkt. No. 5: Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br. at 4-5.) The only properly preserved example in this category is: "`Mr. Tabone worked for the Sanitation Department for 35 years. There's not some clash of cultures. Mr. Tabone is just a hard working regular guy.'" (Peakes Pro Se Supp. 1st Dep't Br. at 5, quoting State Summation: Tr. 380.) This claim is not cognizable on habeas review, since "bolstering" is a state law issue, and does not state a federal constitutional issue cognizable on federal habeas corpus. See, e.g., Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *12 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report & rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *49 n. 77 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Bailey v. New York, 01 Civ. 1179, 2001 WL 640803 at *8 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *32 n. 23 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. & Peck, M.J.) (& cases cited therein); Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978) (Weinfeld, D.J.) ("[T]his Circuit has never regarded the practice [of bolstering] as inimical to trial fairness.").

  Moreover, even assuming arguendo that a bolstering claim were constitutionally cognizable (which it is not), any error in admitting the prosecutor's remark about Mr. Tabone's employment history was harmless error. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993) (pre-AEDPA, the appropriate harmless error standard to apply on habeas corpus review of trial errors is whether the error "`had substantial and injurious effect or influence in determining the jury's verdict.'") (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)). This Court cannot conclude that the prosecutor's comment about Mr. Tabone's employment history had a substantial and injurious effect or influence in determining the jury's verdict against Peakes. The comment provided background to Mr. Tabone and is not the sort of emotionally charged evidence as could prejudice a defendant.*fn28 Nor did the comment make Peakes' conviction substantially more likely. In Vargas v. Hoke, then-District Judge Leval denied a habeas petition because, although the trial court allowed impermissible bolstering testimony, the statement added little to an already compelling case. Vargas v. Hoke, 664 F. Supp. 808, 812 (S.D.N.Y. 1987). Here, the testimony of the Tabones that they saw and felt what they believed to be a gun in Peakes' pocket creates a compelling case such that the prosecutor's comment about Mr. Tabone's 35-year employment with the Sanitation Department, if error, clearly was harmless error. See also, e.g., Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (properly admitted evidence was sufficiently strong to outweigh the impact that the erroneously admitted evidence had, viewed objectively in light of the entire record before the jury); Bentley v. Scully, 41 F.3d 818, 824-25 (2d. Cir. 1994) (where evidence of guilt was "overwhelming," prosecutor's brief summation comments were harmless error), cert. denied, 516 U.S. 1152, 116 S.Ct. 1029 (1996). Indeed, the prosecutor was responding to defense counsel's summation argument that the Tabones believed that they were being robbed because they were from Long Island, "out-of-towners," and that as such there was a culture gap that prevented the Tabones from realizing they were being panhandled not robbed. (Defense Summation: Tr. 356-60.) See, e.g., United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) ("Prosecutors have greater leeway in commenting on the credibility of their witnesses when the defense has attacked that credibility."); United States v. Perry, 643 F.2d 38, 51 (2d Cir.) ("[I]n light of the fact that the defense lawyers attacked the credibility and honesty of the Government's case in their closings, the Government's statements vouching for witnesses were understandable if not laudable"), cert. denied, 454 U.S. 835, 102 S.Ct. 138 (1981).

  Second, Peakes claims that the prosecutor "became an unsworn witness by improperly . . . support[ing] his case by his own veracity and position" (Peakes Pro Se Supp. 1st Dep't Br. at 6) by stating:

[A.D.A.] O'ROURKE: I have been doing this for nearly five years —
THE COURT: Overruled.
[A.D.A.] O'ROURKE: Never once have I ever seen in any courtroom somebody come and breakdown during cross-examination, during the cross-examination. [DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
(State Summation: Tr. 386.)

  Peakes' claim that the prosecutor violated the "unsworn witness" rule lacks merit. "An attorney acts as an unsworn witness when" he has "first-hand knowledge of the events presented at trial. . . . Moreover, his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination." United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 1646 (1994); accord, e.g., Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *12 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.). The unsworn witness rule "generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. . . . [T]he rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor." People v. Paperno, 54 N.Y.2d 294, 300-01, 445 N.Y.S.2d 119, 123 (1981); accord, e.g., Dickens v. Filion, 2002 WL 31477701 at *12.

  Here, in context, the prosecutor was merely stating that in his experience, unlike television, defendants do not confess during cross-examination and that the jury should not expect such an admission in real life, as opposed to what they see on television. The comment was harmless. Cf. Parson v. Portuondo, 259 F. Supp.2d 309, 313 & n. 3 (S.D.N.Y. 2003) (Counsel not ineffective for failing to object where "[t]he trial court remarked to the panel of prospective jurors: `Two things will not happen in this case. No people will rush up here at the appropriate time, stand here and say, "Judge, stop the proceedings. We are the people who robbed the cab drivers." That happens on Perry Mason. Do not expect it.' . . . Placing the remark in proper perspective makes clear that the trial court was cautioning the prospective jurors to pay close attention to the evidence, particularly cross-examination. The statement followed the court's having amply and properly reminded the panel of defendant's presumption of innocence and the government's burden to prove guilt beyond a reasonable doubt.").

  Third, Peakes claims that he was deprived of a fair trial because the prosecutor improperly shifted the burden of proof to the defense. (Peakes Pro Se Supp. 1st Dep't Br. at 7-14.) The specific prosecutorial comments at issue are: (1) "`There's no evidence besides the defendant's own words about owning a house. They have no burden, but there's no evidence to support . . . these things he said to you.'" (Peakes Pro Se Supp. 1st Dep't Br. at 7, quoting State Summation: Tr. 369-70); (2) "`He gives you all of these explanations. . . . Why would I want to do a robbery? I got money. There's no evidence of that. . . . He has no burden. But wouldn't it be important, couldn't you bring in a bank statement? There's no evidence of that. It's nonsense.'" (Peakes Pro Se Supp. 1st Dep't Br. at 7-8, quoting State Summation: Tr. 379); and (3) Peakes testified that he "`was bringing [C]hristmas presents up to [his] cousin early in the morning. A cousin, I believe, he's still in touch with. A cousin who could easily have been here'" (Peakes Pro Se Supp. 1st Dep't Br. at 8, quoting State Summation: Tr. 378).

  None of these comments were improper because they constituted a fair response to Peakes' testimony and defense counsel's summation. See, e.g., People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 504 (1994) (Where "defense had elected to come forward with evidence, the [prosecutor's summation] comments [about defendant's failure to call witnesses to support his claim] did not constitute an impermissible effort to shift the burden of proof."); People v. Youmans, 292 A.D.2d 647, 648, 738 N.Y.S.2d 756, 757 (3d Dep't) ("[W]here the defendant presents evidence with regard to a material witness, the prosecution does not impermissibly shift the burden of proof by commenting in summation on the defendant's failure to call that witness. . . . Moreover, the prosecution may comment upon the failure to present a certain witness where it is a fair response to defense counsel's summation."), appeal denied, 98 N.Y.2d 704, 747 N.Y.S.2d 423 (2002); People v. Diaz, 254 A.D.2d 94, 94, 682 N.Y.S.2d 123, 123 (1st Dep't 1998) ("The prosecutor did not shift the burden of proof by commenting in summation on defendant's failure to call a material witness since defendant presented evidence with regard to said witness at trial."), appeal denied, 93 N.Y.2d 852, 688 N.Y.S.2d 499 (1999); People v. Overlee, 236 A.D.2d 133, 142-143, 666 N.Y.S.2d 572, 579 (1st Dep't 1997) ("[T]he prosecutor's inquiry as to whether [the defendant] had any documentation . . . to corroborate his testimony" held not improper, because "[w]hen a defendant chooses to present affirmative proof, his failure to produce supportive evidence, especially where such proof would ordinarily be available, may be brought to the jury's attention.") (citing People v. Liang, 208 A.D.2d 401, 402, 617 N.Y.S.2d 163, 163 (1st Dep't 1994), appeal denied, 84 N.Y.2d 869, 618 N.Y.S.2d 15 (1994)), appeal denied, 91 N.Y.2d 976, 672 N.Y.S.2d 855 (1998); People v. Gathers, 207 A.D.2d 751, 752, 616 N.Y.S.2d 732, 733 (1st Dep't 1994) ("[A] prosecutor's reminder to the jury that an asserted defense is not supported by any evidence does not shift the burden of proof"), appeal denied 84 N.Y.2d 1031, 623 N.Y.S.2d 187 (1995). Moreover, in context, none of the three objected-to comments put the burden of proof on the defense or denied Peakes a fair trial. The prosecutor's comments were brief and isolated, and the prosecutor also repeatedly told the jury that the prosecution, not the defense, had the burden of proof. (See page 7 above.) More importantly, immediately following the prosecutor's summation, the judge's charge informed the jury that the "burden [of proof] remains upon the prosecution throughout the trial and never shifts to the defendant" and that "[n]o defendant is required to prove his innocence." (Tr. 403).*fn29 Finally, there was strong evidence of Peakes' guilt: The Tabones testified that Peakes threatened them with what they believed was a gun and robbed Mr. Tabone. (See page 2 above.) Peakes was arrested within minutes of the robbery. (See page 3 above.) The Tabones positively identified Peakes at the time of his arrest and again at trial as the man who had robbed them. (See page 3 above.) There was no mistaken identity claim — the parties stipulated that the person who approached the Tabones and the person who was arrested was, in fact, Peakes. (See page 3 above.) In contrast, Peakes' testimony that he had merely asked the Tabones for change of a twenty dollar bill so he could pay a prostitute ten or fifteen dollars, and that Mr. Tabone mistook Peakes' solicitation for a mugging (see pages 3-4 above), was far fetched and obviously was not believed by the jury.

  This Court finds that even if there was error in the People's summation concerning a shifting of the burden of proof, it was harmless in view of the trial court's instruction, the brief and isolated nature of the action, and the overwhelming evidence of guilt. See, e.g., Rao v. Artuz, No. 97-2703, 199 F.3d 1323 (table), 1999 WL 980947 at *2-3 (2d Cir. Oct. 22, 1999) ("strength of the evidence against the petitioner" was enough to "bar[] the conclusion that he suffered actual prejudice as a result of the prosecutor's remarks"); Tankleff v. Senkowski, 135 F.3d 235, 253 (2d Cir. 1998) ("[S]everity of the prosecutor's misconduct . . . was mitigated by the brevity and fleeting nature of the improper comments" and "the evidence was [not] so closely balanced that the prosecutor's comments were likely to have had a substantial effect on the jury"); Herrera v. Lacy, No. 95-2800, 112 F.3d 504 (table), 1996 WL 560760 at *2 (2d Cir. Oct. 3, 1996) ("While some improper statements were made . . ., the misconduct was not so severe that it was not rendered harmless by the court's curative instruction and the substantial evidence of [petitioner's] guilt."); Bentley v. Scully, 41 F.3d 818, 824-25 (2d Cir. 1994) (denying prosecutorial misconduct claim where prosecution presented "compelling evidence" against petitioner and alleged misconduct was both brief and isolated), cert. denied, 516 U.S. 1152, 116 S.Ct. 1024 (1996); United States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (court's instructions to jury obviated any prosecutorial error); Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (although prosecutor made improper statements during summation, no prejudice to defendant where trial court instructed jury that the summations were not evidence and case against defendant was strong); Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir. 1991) (no violation where "cumulative effect of the prosecutor's alleged misconduct was not so severe as to amount to the denial of a fair trial [and] absent the alleged misconduct, . . . overwhelming evidence" existed against petitioner); Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990) ("clear evidence of guilt demonstrates that [petitioner] was not prejudiced by the prosecutor's" misconduct), cert. denied, 501 U.S. 1221, 111 So. Ct. 2835 (1991); United States v. Parker, 903 F.2d 91, 98-99 (2d Cir. 1990) (even where prosecutor acted improperly, no claim for misconduct where "transgression was isolated, the trial court took swift and clear steps to correct [improper conduct], and the evidence against the defendant was strong"); United States v. Coffey, 823 F.2d 25, 28 (2d Cir. 1987) (no constitutional violation where alleged misconduct was isolated and not intentional, the trial court provided curative instructions and trial evidence demonstrated defendant's guilt); United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam) ("the existence of substantial prejudice turns upon the strength of the government's case: if proof of guilt is strong, then the prejudicial effect of the [misconduct] tends to be deemed insubstantial . . ."), cert. denied, 456 U.S. 989, 102 S.Ct. 2269 (1982); Cruz v. Greiner, 1999 WL 1043961 at *31.*fn30 Accordingly, the First Department's decision was not an unreasonable application of Supreme Court law. Peakes' prosecutorial summation misconduct claims should be denied.


  For the reasons set forth above, Peakes' habeas petition should be denied. Since Peakes' petition has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2).


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

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