     08-1289-pr
     Persad 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 8 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOHN M. WALKER, JR.,
 9                DEBRA A. LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SERUANINE PERSAD,
14                Petitioner-Appellant,
15
16                      -v.-                                             08-1289-pr
17
18       JAMES CONWAY, Warden, Attica
19       Correctional Facility
20                Respondent-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR PETITIONER:              RANDA D. MAHER, Law Office of
24                                              Randa D. Maher, Great Neck, New
25                                              York.
26
27       APPEARING FOR APPELLEES:               PRISCILLA STEWARD, Assistant
28                                              Attorney General for the State


                                                  1
 1                              of New York, New York, New York
 2                              (Barabara D. Underwood, Roseann
 3                              B. MacKechnie, on the brief,
 4                              Solicitor General’s Office of
 5                              the State of New York), for
 6                              Andrew M. Cuomo, Attorney
 7                              General of the State of New
 8                              York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Eastern District of New York (Amon, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Seruanine Persad appeals the judgment of the district
18   court denying his petition for a writ of habeas corpus. We
19   assume the parties’ familiarity with the underlying facts,
20   the procedural history, and the issues presented for review.
21
22        Persad contends that the jury charge was unbalanced to
23   such an extent, and infected his trial with such unfairness,
24   that his conviction must be vacated. To succeed on his
25   claim, Persad must establish that: (1) the jury charge was
26   unbalanced in violation of New York law; (2) the unbalanced
27   charge violated Persad’s Fourteenth Amendment right to due
28   process; and (3) habeas relief is available pursuant to 28
29   U.S.C. § 2254(d). See Harris v. Alexander, 548 F.3d 200,
30   203 (2d Cir. 2008).
31
32        Although we conclude that the charge was unbalanced in
33   violation of New York law, see People v. Williamson, 40
34   N.Y.2d 1073, 1074 (N.Y. 1976); People v. Bell, 38 N.Y.2d
35   116, 123 (N.Y. 1975), we nonetheless affirm because Persad
36   suffered no deprivation of due process. The decisive
37   inquiry is whether the unbalanced instruction, understood in
38   the context of the charge and the trial as a whole, see
39   Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir. 2000), “by
40   itself so infected the entire trial that the resulting
41   conviction violates due process,” Cupp v. Naughten, 414 U.S.
42   141, 147 (1973); see also Jackson v. Edwards, 404 F.3d 612,
43   624 (2d Cir. 2005) (framing the issue as whether the
44   instruction was “sufficiently harmful to make the conviction
45   unfair.” (internal quotation marks omitted)).
46

                                  2
 1        Here, the prosecution adduced overwhelming evidence of
 2   Persad’s guilt, including the testimony of multiple
 3   witnesses, positive identifications (both during the
 4   investigation and in-court during trial), Persad’s own
 5   statement, and Persad’s flight upon learning that he was
 6   under investigation for the shooting. In light of this
 7   evidence, the unbalanced charge did not deprive Persad of
 8   his due process rights under Cupp.
 9
10        Finding no merit in Persad’s remaining arguments, we
11   hereby AFFIRM the judgment of the district court.
12
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16




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