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August 3, 2005.

JOSE YAPOR, Petitioner,

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Petitioner Jose Yapor ("Petitioner"), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000). The case was referred to Chief Magistrate Judge Andrew J. Peck who, by Report and Recommendation ("Report") dated April 19, 2005, recommended that the petition be denied. Petitioner objects to the Report in its entirety. For the reasons set forth below, the Court adopts the Report and denies the petition.

I. Background

  The Court briefly recounts the relevant facts here. In February 1997, Petitioner was working as a cashier at the Inwood Pool Hall ("Hall") in Manhattan when he was involved in an altercation with Welcar Dominguez, a regular patron of the Hall. During the altercation, Petitioner drew a gun and had to be restrained by others in the Hall. In the weeks following the incident, Dominguez passed by the Hall and stared at Petitioner.

  On April 20, 1997, Dominguez and five friends were drinking and playing dice across the street from the Hall. The Hall's owner, Geromino Landestoy, approached Dominguez and asked him to stop coming to the Hall because he was making Petitioner nervous. Petitioner then went outside and an argument between Petitioner and Dominguez ensued. While the nature and specifics of the exchange are unclear, immediately following the argument Petitioner shot and killed Dominguez. Petitioner fled to Orlando, Florida, where he turned himself in to the police four days later. Petitioner was charged with second degree murder, second degree attempted murder, second degree assault, second degree criminal possession of a weapon, and first degree reckless endangerment under New York law.

  A. Petitioner's State Trial Proceedings

  During evidentiary hearings before trial, the trial court ruled that the prosecution could introduce evidence that: (1) Petitioner had a gun on his person during the February 1997 altercation with Dominguez for the purpose of demonstrating intent; and (2) Petitioner's wife was arrested for drug possession for the limited purpose of demonstrating that her arrest was not a ploy to "smoke out" Petitioner. Defense counsel objected to both rulings. With respect to the testimony at trial relating to Petitioner's wife's arrest, the judge gave a limiting instruction and told the jury it could not consider her arrest as evidence of the Petitioner's guilt.

  At trial, the prosecution called Milagros Rivera Hernandez as a fact witness. On cross examination, defense counsel asked Hernandez if she had "hear[d] that [Petitioner] had a bad reputation for peaceableness?" Report at 6. The court allowed the prosecution, on re-direct, to challenge Hernandez's credibility as a character witness and ask her if she had "heard that [Petitioner] . . . was fired from the [Sheraton] hotel because he was violent." Report at 7. After the prosecutor's question, the court immediately gave the jury a limiting instruction that the prosecutor's question was "only to show [Hernandez's] ability to accurately reflect the [Petitioner's] reputation. Report at 7 (quoting Tr. 520). Defense counsel thereafter sought to introduce a letter from the employment agency that assigned Petitioner to the Sheraton Hotel. The court excluded the letter, reasoning its limiting instruction would prevent the jury from considering the question about the Sheraton incident for its truth. The judge repeated the limiting instruction to the jury at the conclusion of the trial.

  At the pre-charge conference, the court granted defense counsel's request that the jury be instructed on the defenses of extreme emotional disturbance and self defense. Defense counsel did not object to the substance of the court's instructions on these topics. During its deliberation, the jury sent a number of notes to the judge. The judge responded to all the notes, again, without objection from defense counsel.

  The jury found Petitioner guilty of first degree manslaughter, second degree possession of a criminal weapon, and first degree reckless endangerment. At sentencing, defense counsel remarked that the jury had "found room to make allowances here," and he asked that "the [c]ourt continue on that road laid out by the jury [by] . . . add[ing] the touch of mercy. . . ." Report at 15. The judge sentenced Petitioner to twelve and one-half to twenty-five years on the first degree manslaughter count, to run concurrently with the sentences of seven and one-half to fifteen years on the second degree possession of a weapon count and two and one-third to seven years on the first degree reckless endangerment count. The sentence for each count was the maximum permissible under the law.

  B. Petitioner's Direct Appeal

  In his appeal to the First Department, Petitioner claimed that: (1) he was denied a fair trial when the trial court allowed a character witness to be cross-examined without a good faith basis about Petitioner's termination from a job; (2) he was denied his right to due process and a fair trial when the trial court admitted evidence that his wife had been arrested for a drug crime; (3) he was denied a fair trial when the trial court allowed the prosecutor to introduce evidence that Petitioner had possessed a gun during a prior altercation with the decedent; (4) he was deprived of his right to a jury verdict because of erroneous jury instructions on extreme emotional disturbance and self defense; (5) he received ineffective assistance of trial counsel at sentencing; and (6) his sentence to the maximum term was excessive and should be reduced. The First Department affirmed Petitioner's conviction and declined to reduce his sentence. People v. Yapor, 764 N.Y.S.2d 261 (1st Dep't 2003). The First Department held that the evidentiary rulings challenged by Petitioner were "appropriate exercises of discretion by the trial judge," Petitioner received effective counsel, and that there was no basis to reduce his sentence. Id. at 262. Petitioner's application for leave to appeal to the New York Court of Appeals was denied. People v. Yapor, 775 N.Y.S.2d 798 (2003).

  II. Discussion

  A. Standard of ...

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