         10-3017-pr
         Gainey v. Conway

                                 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                LEE H. ROSENTHAL,1
10                         District Judge.
11
12
13
14       LAVIONE GAINEY,
15
16                                     Petitioner-Appellant,
17
18                      -v.-                                                10-3017-pr
19
20       JAMES T. CONWAY,
21
22                                     Respondent-Appellee.
23
24
25




                1
                Judge Lee H. Rosenthal, of the United States District
         Court for the Southern District of Texas, sitting by designation.
 1   FOR APPELLANT:       SALLY WASSERMAN, New York, NY.
 2
 3   FOR APPELLEE:        PAUL B. LYONS, Assistant Attorney General
 4                        (Barbara D. Underwood, Solicitor General,
 5                        Roseann B. MacKechnie, Deputy Solicitor
 6                        General for Criminal Matters, on the
 7                        brief), for Eric T. Schneiderman,
 8                        Attorney General of the State of New
 9                        York, New York, NY.
10
11        Appeal from the United States District Court for the
12   Western District of New York (Telesca, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the district court be

16   AFFIRMED.

17       Lavione Gainey (“Appellant”) appeals from a final

18   judgment of the United States District Court for the Western

19   District of New York (Telesca, J.), which denied his

20   petition for a writ of habeas corpus pursuant to 28 U.S.C.

21   § 2254.     This Court granted a certificate of appealability

22   on the issue of whether statements made by the prosecutor

23   during summation deprived Appellant of a fair trial.     We

24   assume the parties’ familiarity with the underlying facts,

25   the procedural history, and the issues presented for review.

26       This Court reviews a district court's decision to grant

27   or deny a petition for a writ of habeas corpus de novo.

28   Anderson v. Miller, 346 F.3d 315, 324 (2d. Cir. 2003).

29       For substantially the same reasons stated by the

                                     2
1    district court in its decision, we hold that the district

2    court properly denied Appellant’s petition for a writ of

3    habeas corpus.   New York Criminal Procedure Law ("C.P.L")

4    § 470.05(2)(New York’s “contemporaneous objection” rule) is

5    an adequate and independent state law ground to bar review

6    of Appellant’s constitutional claim.   See Whitley v. Ercole,

7    642 F.3d 278, 286-87 (2d Cir. 2011).   Although a habeas

8    court may still consider the merits of a procedurally barred

9    claim if the petitioner demonstrates cause for his default

10   and actual prejudice attributable to the default, see

11   Coleman v. Thompson, 501 U.S. 722, 750 (1991), Appellant has

12   failed to show either in this case.

13       For the foregoing reasons, the judgment of the district

14   court is hereby AFFIRMED.

15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




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