1 Judge Lee H. Rosenthal, of the United States District

Court for the Southern District of Texas, sitting by designation.

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

New York, on the 16th 4 day of February, two thousand twelve.

5

6 PRESENT: RICHARD C. WESLEY,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges,

LEE H. ROSENTHAL,1 9

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
2

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
3

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