    13-1317
    Page v. Martuscello

                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    9th day of April, two thousand fourteen.

    PRESENT:
                PIERRE N. LEVAL,
                GUIDO CALABRESI ,
                GERARD E. LYNCH,
                      Circuit Judges.
    _____________________________________

    Tyreek Page,


                               Petitioner-Appellant,

                          v.                                              13-1317

    Daniel Martuscello, Jr.,

                               Respondent-Appellee.

    _____________________________________

    FOR PETITIONER-APPELLANT:                              Richard M. Greenberg, Office of the
                                                           Appellate Defender, New York, NY.

    FOR RESPONDENT-APPELLEE:                               David M. Cohn, Assistant District Attorney
                                                           (Eleanor J. Ostrow, on the brief), for Cyrus
                                                           R. Vance, Jr., District Attorney, Office of
                                                           the District Attorney, New York, NY.


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        Appeal from a judgment of the United States District Court for the Southern District of

New York (Jed S. Rakoff, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

        Tyreek Page appeals from a March 18, 2013 district court judgment denying his petition

for habeas corpus under 28 U.S.C. § 2254. Page challenges the validity of his New York state

court conviction for second degree murder, attempted second degree murder, first degree assault,

first degree criminal use of a firearm, second degree criminal possession of a weapon, and first

degree reckless endangerment. Page was initially sentenced to consecutive prison sentences on

various counts, aggregating to a term of 60 years to life; the sentence was reduced on appeal to

25 years to life. After an unsuccessful state court collateral challenge to his conviction, Page

timely filed his petition in federal court, contending that his trial counsel had provided him with

ineffective representation by failing to properly advise him of the merits of a plea offer. We

assume familiarity with the underlying facts and procedural history of this case, and recount only

those details directly relevant to this appeal.

        We review a district court’s denial of a section 2254 petition de novo. Hawkins v.

Costello, 460 F.3d 238, 242 (2d Cir. 2006). However, we defer to a district court’s factual

findings unless those findings are clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 223 (1988).

Additionally, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

when a state court has adjudicated a petitioner’s claim on the merits, a federal court may grant

habeas relief only if the state court’s decision is either “(1) contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme
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Court of the United States; or (2) . . . 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). Here, the district

court concluded that Page’s trial counsel’s performance “fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984). However, constrained by

AEDPA’s requirement that it defer to the state court’s factual findings, the district court further

held that state court reasonably concluded that counsel’s deficient performance did not prejudice

Page. Page testified that he would have accepted a plea resulting in a 12-year sentence had he

understood his true sentencing exposure. The state trial court rejected Page’s testimony as “self-

serving” and “incredible,” and concluded that Page “failed to establish a reasonable probability

that but for [counsel’s] alleged deficiencies, he would have entered a plea of guilty.” J. App’x at

353. While we agree that Page’s counsel provided deficient representation, we cannot reject the

state court’s conclusion that Page failed to establish that he was prejudiced by his counsel’s

errors.

          Because AEDPA requires us to defer to such state court factual findings, we AFFIRM the

judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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