United States District Court, E.D. New York
MEMORANDUM & ORDER
RAYMOND J. DEARIE, District Judge.
Gaviria was identified at trial by the victim, Diego Cortes, who testified that he and Gaviria had an argument over a cigarette. According to Cortes, Gaviria threatened him with a knife. Cortes threw a beer bottle at Gaviria. Gaviria got in a car and chased Cortes up and down the block. When he caught up to Cortes, Gaviria got out of the car and stabbed him several times.
Gaviria was also identified by Claudia Moreno, who testified that Gaviria made a pass at her outside the bar. Several minutes later, she saw Gaviria bleeding from a cut on his palm. He wrapped his hand in at-shirt that he retrieved from the trunk of a car. Then he drove down the street after Cortes. Moreno saw Gaviria get out of the car and make thrusting motions towards Cortes. Moreno memorized the license plate number of the car. At trial, the parties stipulated that Gaviria was the only person who had access to the car that night.
During her testimony, Moreno repeatedly described herself as "nervous." At one point in the cross-examination, she began to cry and covered her face. The trial judge, believing that the cause of Moreno's discomfort was a man who had just entered the courtroom, ordered the man removed. Outside the presence of the jury, the judge questioned Moreno about the incident, explaining that, while she "had appeared nervous and has cried throughout the course of her testimony,  on this particular time she just looked a little more distressed than usual." Tr. at 426. Moreno explained that she became upset because she saw Gaviria's wife looking through the window of the courtroom door. Defense counsel sought to elicit from Moreno that the cause of her distress was Gaviria's wife. The judge concluded, however, that allowing such crossexamination would prejudice Gaviria by suggesting that Moreno was intimidated by his family. Instead, in the jury's presence, the judge asked Moreno if she had covered her face because of the man who entered the courtroom, whether that man had made her nervous, and whether she had seen him before. She answered "no" to each question. Tr. at 427.
In his sunrmation, the prosecutor made the following comment about Moreno's demeanor on the stand:
Claudia Moreno, forget about interpreting body language. It was obvious with her body language. She covered her face. She was actually whispering throughout the entire time but she actually came out and said it, she actually used the words "nervous" and "scared." You have the type of reaction, I submit, when you see the man who almost committed murder right in front of you.
Tr. at 628 (emphasis added). Counsel did not object to this statement.
At the end of trial, defense counsel objected to the verdict sheet. He asked that it be modified so that the option for "not guilty" would precede the option for "guilty." The judge refused. to change the verdict sheet, explaining that "this is the format I have always used." Tr. at 601.
Gaviria was convicted of attempted second-degree murder, first-degree and seconddegree assault, and third-degree criminal possession of a weapon. He appealed on the basis of the same three grounds raised in this petition. The Appellate Division affirmed the trial court's refusal to allow Gaviria's counsel to question Moreno about the reason that she covered her face. People v. Gaviria, 886 N.Y.S.2d 900, 900 (2d Dep't 2009). The Appellate Division also held that the verdict sheet was neutral and did not unduly emphasize the "guilty" option. Id . Turning to Gaviria's argument that the closing remarks were inappropriate, the Appellate Division ruled that Gaviria's counsel failed to properly preserve the issue for appeal. Id . The Court of Appeals denied leave to appeal. People v. Gaviria, 14 N.Y.3d 840 (2010).
Habeas petitioners like Gaviria are held to an exacting standard. If a petitioner's claim has been adjudicated on the merits in state court, he must show that the state court ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). "[C]learly established federal law, as determined by the Supreme Court" means the holdings (not dicta) of cases decided by the Supreme Court (not lower federal courts). Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013). An application oflaw is unreasonable only ifit involves some increment of incorrectness beyond error. Id . When applying this highly deferential standard ofreview, the habeas court looks to the "last reasoned decision" of the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Here, the last reasoned state court decision was that of the Appellate Division.
The Appellate Division rejected, on the merits, Gaviria's claim that his constitutional confrontation and due process rights were violated by the trial court's refusal to allow him to elicit from Moreno that she had been upset by the sight of Gaviria's wife peering into the courtroom. Gaviria, 886 N.Y.S.2d at 900. Because the Appellate Division reached the merits of this claim, Gaviria can prevail only if ...