United States District Court, S.D. New York
June 15, 2005.
ANGEL URENA, Petitioner,
WILLIAM LAPE, Acting Superintendent of Clinton Correctional Facility, Respondent.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Pro se petitioner Angel Urena ("Urena") filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§
2254"). Urena was convicted in the New York State Supreme Court,
New York County (the "trial court"), of criminal sale of a
controlled substance in the third degree, in violation of N.Y.
Penal Law § 220.39(1), and criminal sale of a controlled
substance in or near school grounds, in violation of N.Y. Penal
Law § 220.44(2). He was sentenced, as a second felony offender,
to concurrent, indeterminate prison terms of four and one-half to
nine years on each count. In this petition for a writ of habeas
corpus, Urena argues that he was deprived of his due process
right to a fair trial, allegedly on the basis of (1) the trial
court's admission of evidence of uncharged crimes; (2)
prosecutorial misconduct during summation; and (3) the trial
court's failure to address a jury question during deliberations.
For the reasons set forth below, Urena's petition is denied. I. BACKGROUND*fn1
The evidence at Urena's trial established the following facts.
On September 24, 2000, New York City Police Department ("NYPD")
detectives Stephen Minogue ("Minogue") and Jose Rivera ("Rivera")
observed Urena selling narcotics at the intersection of Nagle
Avenue and Academy Street in Manhattan, 752 feet from St. Jude
Elementary School. Detective Libby Guzman ("Guzman") arrested
Urena one block away from this intersection, and he was
subsequently charged with the crimes for which was convicted.
Urena's arrest resulted from the efforts of an NYPD
surveillance team composed of eight officers. Minogue and Rivera
established an observation post from an unmarked vehicle that was
parked across the street from the Nagle Avenue and Academy Street
intersection, a location that in the past had been the site of
numerous drug sales and drug arrests. They were 112 feet away
from Urena and had been in their position for eighty minutes.
The detectives focused on Urena because they observed separate transactions between Urena and two individuals, each of
whom approached Urena, engaged in a transaction in which Urena
gave the individual an object from his pocket in exchange for
money, and then walked away. The first individual arrived in a
truck, parked, got out, and walked directly to Urena. This man
gave Urena money, and Urena pulled a small object from his pocket
and gave it to the man, who returned to his truck and drove away.
Minogue radioed a description of the man and his truck to the
field team, but the team could not locate the vehicle. Some time
later, a second man walked directly to Urena. He handed money to
Urena, and Urena handed a small object to him. The man then
walked away. Again, Minogue radioed a description of the man to
other officers, but they were unable to locate him.
Urena was not charged with criminal activity relating to his
interactions with these first two individuals, but he was charged
with selling crack cocaine to Harriet James ("James"). During the
eighty minutes in which the detectives were positioned in their
vehicle, James also approached Urena and handed him what appeared
to be money. Urena then handed James a small object. Minogue
testified that he could not see what Urena handed to James;
Rivera testified that although he could not see what Urena handed
to James, he could discern that it was a "small, shiny object."
(Tr. at 92, 128, 142, 147.) James placed the object in her right front pocket and walked
away. She walked past the detectives' vehicle, and Rivera stopped
her. From James's right front pocket, Rivera recovered a small
tinfoil package containing crack cocaine along with a crack pipe.
After this encounter, Minogue radioed Urena's description to
the other officers, and Guzman arrested him one block away from
the corner where the three transactions occurred. Guzman found
currency in Urena's right front pocket and a pager on his
The first trial resulted in a mistrial because the jury could
not unanimously agree on a verdict. (Trial Transcript of People
v. Urena, Ind. No. 6464-00, beginning Oct. 24, 2001, Supreme
Court, New York County, Criminal Term, Part 72, at 14-16.)
New proceedings began in December of 2001. Three aspects of
these trial proceedings are relevant to Urena's habeas petition:
(1) over defense objections, the trial court allowed the
introduction of evidence about the two earlier interactions
between Urena and alleged narcotics buyers;*fn2 (2) during
the prosecutor's summation, defense counsel objected to the
repeated use of the phrase "don't fall for that" (Tr. at 236), which the prosecution repeated five times (Tr. at 236, 238,
244, 246, 248); and (3) in a note to the judge during its
deliberations which contained multiple questions, the jury
inquired, "Can we find [Urena] guilty if we think the detectives
did not see the actual piece of tinfoil handed to Harriet James?"
(Tr. at 288.) The judge decided that he could not answer this
question with a "yes, no" answer and responded in this manner.
(Tr. at 289-91.) Five minutes after the judge answered the jury's
questions, the jury returned a verdict convicting Urena of both
charges. (Tr. at 309, 310-11.)
Urena appealed his conviction to the New York Supreme Court,
Appellate Division, First Department (the "Appellate Division").
He presented three arguments, each asserting that the trial
court's errors denied him his constitutional right to a fair
trial. First, Urena argued that the trial court's admittance of
the evidence of uncharged alleged criminal acts was highly
prejudicial because it enabled the jury to infer that he had the
propensity to commit the crime. (State Urena Br. at 1-2.)
Although not at issue here, Urena also argued that the admission
of the crack pipe found on James into evidence was similarly
prejudicial. Id. Second, Urena contended that the prosecutor
made "prejudicial and disparaging remarks" during her summation,
implying that the "defense counsel was trying to deceive the jurors . . . stating
numerous times, `don't fall for that.'" (State Urena Br. at 2.)
Finally, he argued that the trial judge refused to respond
meaningfully to the jury's question, thus denying Urena his
constitutional right to a fair trial. (State Urena Br. at 2.)
The Appellate Division unanimously affirmed the conviction on
both counts. People v. Urena, 760 N.Y.S.2d 319 (App.Div. 1st
Dep't 2003) ("Urena II"). The Appellate Division stated that
the testimony regarding the immediately preceding uncharged drug
sales was properly admitted and was relevant "since its probative
value in providing a complete and coherent narrative of the
offense, including an explanation of why the police targeted
[Urena] for continuing observation, outweighed any prejudicial
effect." Id. at 319. The court also determined that the remarks
made in the summation "were responsive to defense arguments and
did not exceed the broad bounds of rhetorical comment permissible
in closing argument." Id. Finally, the Appellate Division held
that the trial court "provided a meaningful response when it
properly advised the deliberating jury that its question
regarding the interpretation of circumstantial evidence could not
be answered with the simple `yes' or `no' called for by the
question." Urena II, 760 N.Y.S.2d at 319. The court also recognized that "[i]n view of the overwhelming evidence of
defendant's guilt, the court's response could not have caused any
serious prejudice." Id. The New York Court of Appeals issued a
certificate denying leave to appeal on September 23, 2003.
People v. Urena, 100 N.Y.2d 625 (2003).
Urena timely filed this pro se petition for a writ of
habeas corpus pursuant to § 2254, raising the same issues he
brought before the Appellate Division with the exception of his
challenge to the admission of the crack pipe, following the Court
of Appeals' denial of leave to appeal.
A. STANDARD OF REVIEW
A petitioner in custody pursuant to a state court judgment is
entitled to habeas relief only if he can show that his detention
violates the United States Constitution or laws or treaties of
the United States. See 28 U.S.C. § 2254(a). Pursuant to
28 U.S.C. § 2254(d) (1), which was introduced in its current form by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1218, this Court may
grant habeas relief to a petitioner whose claims were decided on
the merits 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," or was "based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." § 2254(d);
see also Williams v. Taylor, 529 U.S. 362, 409 (2000)
(noting that under § 2254(d), the test is whether "the state
court's application of clearly established federal law was
objectively unreasonable"); Eze v. Senkowski, 321 F.3d 110,
120-21 (2d Cir. 2003) (holding that the post-AEDPA standard
applies to all claims "adjudicated on the merits in [s]tate court
proceedings") (quoting § 2254(d)).
A state court adjudicates a petitioner's federal claim "on the
merits," and thus triggers the highly-deferential AEDPA standard
of review, when it: (1) disposes of the claim on the merits; and
(2) reduces its disposition to judgment. See Sellan v.
Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). In so doing, the
state court need not explicitly refer to either the particular
federal claim or to any federal case law. See id. The only
requirement is that the claim be finally resolved, with res
judicata effect, on substantive rather than procedural grounds.
See id. at 311. Urena II's disposition of Urena's claims
indicates that the State has adjudicated his claims on the
merits. See State Urena Br. (raising constitutional claims);
Urena II, 760 N.Y.S.2d at 319-20 (rejecting challenges to
conviction based on admission of uncharged crimes evidence,
prosecutorial summation, and response to jury question, and stating, "We have considered and
rejected defendant's remaining claims.") Thus, the § 2254(d)
standard of review applies to Urena's claims.
It is undisputed that Urena has exhausted his state remedies by
presenting his federal constitutional arguments to each state
court that reviewed his claims. See § 2254(b) (1) (A); Jones
v. Keane, 329 F.3d 290, 295 (2d Cir. 2003) ("Exhaustion requires
a petitioner fairly to present the federal claim in state
court.") His claims in the instant petition are thus ripe for the
B. EVIDENCE OF UNCHARGED CRIMES
Urena argues that the admission of evidence of the two observed
transactions, which he characterizes as evidence of "alleged"
uncharged crimes, violates state law and his due process right to
a fair trial. See U.S. Const. amend. XIV, § 1.
1. Admittance of Evidence as a Matter of State Law
Urena's claim based on state law questions the propriety of the
trial court's determination that the probative value of the
evidence, which was used to "complete the story of the crime" by
explaining why the police focused their attention on Urena,
outweighed any prejudice Urena may have suffered as a result of
the introduction of the evidence. This is the standard that the
state was required to satisfy under New York evidentiary law. See People v. Till, 661 N.E.2d 153 (N.Y.
1995) (applying this standard). To the extent that Urena's
challenge to the admission of evidence of uncharged crimes seeks
to question the state's interpretation and application of state
evidentiary law, his challenge must fail. The United States
Supreme Court has emphasized that "it is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see also Howard v. Walker, 406 F.3d 114, 121 (2d
Cir. 2005) ("A claim that a state conviction was obtained in
violation of state law is not cognizable in the federal court.")
The trial court and the Appellate Division both determined that
the evidence of uncharged crimes was properly admitted as a
matter of state law. See Urena II, 760 N.Y.S.2d at 319. This
Court will not "independently determine the appropriateness of
whether or not that evidence should have been admitted under New
York State evidentiary rules." Allaway v. McGinnis,
301 F. Supp. 2d 297, 300 (S.D.N.Y. 2004). Such an understanding conforms
with the view that "it is not [the] court's duty to balance the
probative value against the unfair prejudice because the Due
Process Clause does not permit federal courts to engage in a
finely tuned review of the wisdom of state evidentiary rules."
Id. (quoting Anderson v. Sternes, 243 F.3d 1049, 1055 (7th Cir. 2001)) (internal
quotation marks omitted). Consequently, this challenge based on
state law must fail.
2. Due Process Clause
If this Court instead interprets Urena's challenge as alleging
a due process violation (see Pet. at 5 (alleging that the
introduction of alleged uncharged crimes evidence resulted in
"blatant disregard to petitioner's constitutional rights")), he
may obtain habeas relief only if the trial court's decision to
admit evidence of Urena's immediately prior or contemporaneous
actions rendered his trial so fundamentally unfair as to deny him
his right to due process of law. See Estelle, 502 U.S. at 75;
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998); Bonet v.
McGinnis, No. 98 Civ. 6529, 2001 WL 849454, at *3 (S.D.N.Y. July
27, 2001). Even if the evidence were admitted erroneously,
"introduction of improper evidence against a defendant does not
amount to a violation of due process unless the evidence `is so
extremely unfair that its admission violates fundamental
conceptions of justice.'" Dunnigan, 137 F.3d at 125 (quoting
Dowling v. United States, 493 U.S. 342, 352 (1990)).
There is no evidence in the record suggesting that the
admission of evidence concerning the two uncharged transactions
denied Urena due process of law. The trial court correctly instructed the jury that it was not permitted to
consider this evidence as proof of Urena's propensity to commit
crimes. Rather, as the trial court explained, it could be
considered only to complete the story of the crime by explaining
why the police officers began monitoring Urena:
I have allowed the People to introduce evidence that
[Urena] was seen exchanging certain items for money
[with] two individuals other than Ms. James. As I
told you during the trial, the fact that the
defendant was involved in this activity, is no proof
whatsoever that [Urena] is the person who possesses a
propensity or predisposition to commit crimes. This
testimony was not offered for such purpose and must
not be considered by the jury for that purpose.
Instead, the People offered this evidence to show why
the police were watching the defendant and in order
to provide a full and complete background surrounding
[Urena's] arresting [sic]. I instruct you that such
testimony must be considered for those purposes
(Tr. at 272-73.) Cf. Estelle, 502 U.S. at 75 n. 5 (noting
that the Supreme Court has not yet determined whether admission
of "prior crimes" to prove propensity to commit crimes would
violate the Due Process Clause). Critical elements of these
proper instructions were reiterated in response to a jury note.
(Tr. at 288, 304-306.) This Court must assume that jurors
understand and follow limiting instructions. See Zafiro v.
United States, 506 U.S. 534, 540 (1993); Roldan v. Artuz,
78 F. Supp. 2d 260
, 281 (S.D.N.Y. 2000). After receiving these instructions concerning the testimony relating to
uncharged crimes, the jury was able to reach a unanimous verdict,
presumably having understood the limited purpose for which the
evidence could be used.
Viewing the evidence of alleged uncharged crimes in light of
the proper instructions before the jury, the admission of this
testimony cannot constitute a due process violation.
Consequently, Urena is not entitled to habeas relief on this
B. PROSECUTION'S SUMMATION
Urena next argues that the prosecutor's repeated use of the
phrase "don't fall for that" during summation deprived him of a
right to a fair trial. (Pet. at 6.) He claims that by permitting
this phrase to be repeated by the prosecutor, the trial court
acquiesced to prosecutorial denigration of defense counsel and
the defense's theory of the case. (Id.)
Urena's claim that these remarks violated the Constitution can
only succeed if he can demonstrate that the prosecutor's remarks
"so infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChrisoforo,
416 U.S. 637, 643 (1974)); United States v. Elias, 285 F.3d 183,
190 (2d Cir. 2002). Prosecutorial misconduct during summation is
grounds for reversal only when the remarks caused "actual prejudice" by
infecting the trial with unfairness. See Tankleff v.
Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). Prejudice cannot be
demonstrated in the absence of evidence of prosecutorial
misconduct. Id. (describing three-factor test for evaluating
claims of prejudice predicated on existence of prosecutorial
No prejudice exists where a prosecutor appropriately responds
to defense counsel's arguments. See United States v. Young,
470 U.S. 1, 12-13 (1985) ("the reviewing court must not only
weigh the impact of the prosecutor's remarks, but must also take
into account defense counsel's opening salvo. . . . [I]f the
prosecutor's remarks were `invited,' and did no more than respond
substantially in order to `right the scale,' such comments would
not warrant reversing a conviction."). When responding to defense
comments, "[p]rosecutors have greater leeway in commenting on the
credibility of their witness when the defense has attacked that
credibility." United States v. Perez, 144 F.3d 204, 210 (2d
Cir. 1998); see also United States v. Feliciano,
223 F.3d 102, 123 (2d Cir. 2000) ("[W]hen the defense counsel have
attacked the prosecutor's credibility or the credibility of the
government agents, the prosecutor is entitled to reply with
rebutting language suitable to the occasion.") (quoting United
States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994)).
Viewed in light of Urena's counsel's closing arguments, the
prosecutor's repetition of the phrase "don't fall for that" is
properly seen as "rebutting language suitable to the occasion."
Feliciano, 223 F.3d at 123. Each use of the phrase was
responsive to specific arguments made by Urena's counsel, and
each was within the prosecutor's broad discretion to rebut those
An examination of the trial transcript confirms the propriety
of the prosecutor's summation. Urena's counsel argued during his
summation that it was possible that James got the crack cocaine
from somewhere else since there was no testimony as to where she
got the crack pipe. (Tr. at 210-11.) His counsel then called
attention to the fact that when the police arrested Urena, he did
not have "another dozen tinfoil packages" in his pocket,
suggesting that the jury should consider it relevant that Urena
did not have drugs on his person when he was arrested. (Tr. at
217.) Next, his counsel argued that the detectives were not able
to view the transaction between Urena and James because of
vehicular traffic, pedestrians, and a fence obstructing the view,
and that in addition, the detectives, who were the only
eyewitnesses to the alleged transaction, did not use binoculars
or a telescope with a telephoto lens that would have enabled them to actually see the transaction. (Tr. at 213.)
His counsel then argued that by claiming that he was "about 100
feet" from Urena even though "he knew the answer was 112 feet,"
Rivera deliberately tried to mislead the jury. (Tr. at 215-16.)
The prosecutor responded to each of these assertions in part by
using the rhetorical comment, "don't fall for that." In referring
to Urena's counsel's assertion that James may have gotten the
crack cocaine from somewhere else, the prosecutor argued that it
was unlikely that James was simply walking on the streets
purposelessly holding onto crack cocaine, concluding her argument
with, "Don't fall for that. We're not talking about cigarettes."
(Tr. at 236.) Responding to the implication that Urena could not
be convicted if he did not have drugs on him when he was
arrested, the prosecutor stated, "I don't have to prove to you
that [Urena] had drugs on him after the sale in order to prove
that a sale occurred. . . . Don't fall for that." (Tr. at 238.)
Next, the prosecutor addressed the claim that the NYPD detectives
assumed that they witnessed a drug sale transaction without
actually observing it, arguing that "drug transactions are not
overt operations. . . . They are covert by design. . . . [W]e
don't expect that the defendant would be standing on the corner
yelling out, okay, now I am handing out crack, it didn't happen like that because it doesn't happen like that.
Don't fall for that." (Tr. at 243-44). In response to the claim
that there was no evidence other than eyewitness accounts, the
We all know that type of evidence while not necessary
to have is not the only source of the truth[;] the
lack of video or photograph of a crime doesn't make
it any less real. It doesn't mean it didn't happen.
Don't think that without that evidence you cannot be
convinced beyond a reasonable doubt. Don't think
without that evidence you cannot convict. Don't fall
(Tr. at 245-46).
Finally, the prosecutor responded to the credibility issues
submitted by the defense counsel, punctuating her position that
the detectives did not single out Urena, go to that corner
looking for him, or have difficulty in seeing the interaction
with James, by stating, "They had a job to do. This is the law.
Don't fall for that." (Tr. at 248.)
The Appellate Division held that "the challenged portions of
the prosecutor's summation were responsive to defense arguments
and did not exceed the broad bounds of rhetorical comment
permissible in closing argument." Urena II,
760 N.Y.S.2d at 319. This Court agrees with that conclusion.
Because Urena cannot demonstrate that it was error to permit
the prosecutor to make the challenged statements, he cannot prove
that the admission of these statements violated his due process
rights. Consequently, he cannot receive habeas relief on this basis.
C. THE JURY QUESTION
Finally, Urena argues that the judge in the trial court failed
to give a meaningful response to a jury question during
deliberations and that this failure resulted in the denial of a
fair trial. In a note to the judge, the jury asked five
questions, the first four of which concerned circumstantial
 "We the jury request that the Judge review the
law on circumstantial evidence". Under that it says:
 "What is circumstantial evidence?" Then it says:
 "How can circumstantial evidence be used in
determining a verdict"? Under that:  "Can we find
[Urena] guilty if we think the detectives did not see
the actual piece of tinfoil handed to Harriet James"?
(Tr. at 288.)
After defense counsel and prosecution argued their positions to
the judge as to how to answer the fourth question, the judge
decided that he could not answer it with a "yes, no." (Tr. at
289-91.) Defense counsel asked if the judge was "going to ignore
the question." (Tr. at 292.) The judge instead chose to inform
the jury that its fourth question "cannot be answer[ed] with a
yes, no answer. And I will not answer it with a yes, no. It can't
be." (Tr. at 300.)
Urena can only prevail on his habeas claim if, as with the
admission of uncharged evidence, the judge's response "so infected the entire trial that the resulting conviction violates
due process." Estelle, 502 U.S. at 72 (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)); Davis v. Strack,
270 F.3d 121 (2d Cir. 2001); see also Cupp, 414 U.S. at 146 ("Before
a federal court may overturn a conviction resulting from a state
trial in which this instruction was used, it must be established
not merely that the instruction is undesirable, erroneous, or
even `universally condemned,' but that it violated some right
which was guaranteed to the defendant by the
Fourteenth Amendment."). Analysis of a judge's answer to a jury question
follows the same reasoning utilized by a reviewing court to
consider jury instructions provided by the trial judge. See,
e.g., Weeks v. Angelone, 528 U.S. 225 (2000) (utilizing case
law regarding general jury instructions to analyze judge's answer
to jury question); Ortiz v. Artuz, 113 F. Supp. 2d 327, 339
(E.D.N.Y. 2000) (applying the jury charge analysis under
Estelle and Cupp to trial court's response to jury question).
In general, the "scope of review on a habeas petitioner's claim
that he was deprived of a fair trial by errors in the charge to
the jury is very narrow." Ortiz, 113 F. Supp. 2d at 339 (citing
Estelle, 502 U.S. at 73). Further, "not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the
level of a due process violation." Middleton v. McNeil,
541 U.S. 433, 437 (2004). To determine the effect of the answer on the validity of
Urena's conviction, "[A] single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context
of the overall charge." Id. (quoting Boyde v. California,
494 U.S. 370, 378 (1990)).
The Court concludes that Urena has not met this high standard.
It agrees with the Appellate Division, which considered the
answer within the context of the jury instructions and the other
questions asked by the jury, and concluded that the trial court
"provided a meaningful response when it properly advised the
deliberating jury that its question regarding the interpretation
of circumstantial evidence could not be answered with the simple
`yes' or `no' called for by the question." Urena II,
760 N.Y.S.2d at 319. The Appellate Division also recognized that
"[i]n view of the overwhelming evidence of defendant's guilt, the
court's response could not have caused any serious prejudice."
The trial court's response to the question rested within its
considerable discretion. As the Supreme Court has stated:
Once the judge has made an accurate and correct
charge, the extent of its amplification must rest
largely in his discretion. The trial judge, in the
light of the whole trial and with the jury before
him, may feel that to repeat the same words would
make them no more clear, and to indulge in variations
of statement might well confuse. How far any charge
of technical questions of law is really understood by
those of lay background would be difficult to ascertain, but it is certainly more
evident in the living scene than in a cold record.
United States v. Bayer, 331 U.S. 532
, 536-37 (1947), quoted
by Ortiz, 113 F. Supp. 2d at 339. Urena does not contend that
the trial court's original charge regarding circumstantial
evidence was incorrect, nor can he reasonably argue that the
trial court's response to the jury question was prejudicial to
him. Urena could have been, and apparently was, convicted
based on circumstantial evidence that he sold the crack contained
within the tinfoil to James. The trial court could have properly
answered "yes" to the jury question. The trial court did not do
so, perhaps to avoid prejudicing Urena by leading the jury to
believe that it was required to convict him based on the
circumstantial evidence of his guilt or, it appears from the
record, due to the absence of testimony concerning the officers'
direct observation of an exchange of tinfoil between Urena and
James. Consequently, the trial court's decision to decline to
answer "yes" or "no" to the question could not have been harmful
to Urena. Moreover, its decision to avoid further amplification
of the standards pertaining to circumstantial evidence was within
its discretion. See Bayer, 331 U.S. at 536-37; Wu v.
O'Keefe, No. 92 Civ. 6651, 1994 WL 30424, at *3 (S.D.N.Y. Feb.
2, 1994) (stating that it was within the trial court's discretion not to
give a "yes or no" response to a jury question).
Urena cannot establish that the trial court's answer to this
question in some way prejudiced the jury deliberations, or that
the response made his trial fundamentally unfair. Therefore, the
trial judge's response to the jury question, which was affirmed
by the Appellate Division, was not contrary to or an unreasonable
application of Federal law as determined by the Supreme Court.
See § 2254(d) (1).
For the foregoing reasons, it is hereby
ORDERED that the petition of Angel Urena ("Urena") for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
Because Urena has failed to make a substantial showing of
denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c).
The Clerk of Court is directed to close this case.