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**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A**  **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of February, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges , 8 LEE H. ROSENTHAL, 1 9 District Judge. 10 11 12 13 LAVIONE GAINEY, 14 15 Petitioner-Appellant , 16 17 -v.- 10-3017-pr 18 19 JAMES T. CONWAY, 20 21 Respondent

- Appellee. 22 23 24 252 FOR APPELLANT: SALLY WASSERMAN, New York, NY. 1 2 FOR APPELLEE: PAUL B. LYONS, Assistant Attorney General 3 (Barbara D. Underwood, Solicitor General, 4 Roseann B. MacKechnie, Deputy Solicitor 5 General for Criminal Matters, on the 6 brief ), for Eric T. Schneiderman, 7 Attorney General of the State of New 8 York, New York, NY. 9 10 Appeal from the United States District Court for the 11 Western District of New York (Telesca, 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 Lavione Gainey (“Appellant”) appeals from a final 17 judgment of the United States District Court for the Western 18 District of New York (Telesca, J. ), which denied his 19 petition for a writ of habeas corpus pursuant to 28 U.S.C. 20 § 2254. This Court granted a certificate of appealability 21 on the issue of whether statements made by the prosecutor 22 during summation deprived Appellant of a fair trial. We 23 assume the parties’ familiarity with the underlying facts, 24 the procedural history, and the issues presented for review. 25 This Court reviews a district court's decision to grant 26 or deny a petition for a writ of habeas corpus de novo. 27 Anderson v. Miller , 346 F.3d 315, 324 (2d. Cir. 2003). 28 For substantially the same reasons stated by the 293 district court in its decision, we hold that the district 1 court properly denied Appellant’s petition for a writ of 2 habeas corpus. New York Criminal Procedure Law ("C.P.L") 3 § 470.05(2)(New York’s “contemporaneous objection” rule) is 4 an adequate and independent state law ground to bar review 5 of Appellant’s constitutional claim. See Whitley v. Ercole , 6 642 F.3d 278, 286-87 (2d Cir. 2011). Although a habeas 7 court may still consider the merits of a procedurally barred 8 claim if the petitioner demonstrates cause for his default 9 and actual prejudice attributable to the default, see 10 Coleman v. Thompson , 501 U.S. 722, 750 (1991), Appellant has 11 failed to show either in this case. 12 For the foregoing reasons, the judgment of the district 13 court is hereby **AFFIRMED**
. 14
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19