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McFARLAND v. SMITH

No. 1300, Docket 79-2059.

611 F.2d 414 (1979)

Robert E. McFARLAND, Petitioner-Appellant, v. Harold J. SMITH, Respondent-Appellee, and Lawrence T. Kurlander, Monroe County District Attorney, Intervenor-Appellee.

United States Court of Appeals, Second Circuit.

Decided October 29, 1979.

Attorney(s) appearing for the Case

Steven Lloyd Barrett, New York City (The Legal Aid Society, Federal Defender Services Unit, New York, N.Y., on the brief), for petitioner-appellant.

Kenneth R. Fisher, Rochester, N.Y. (Lawrence T. Kurlander, Monroe County Dist. Atty., Rochester, N.Y., on the brief), for intervenor-appellee.

Before VAN GRAAFEILAND, NEWMAN and KEARSE, Circuit Judges.

NEWMAN, Circuit Judge:

This is an appeal from a denial of a petition for a writ of habeas corpus brought by a state prisoner to challenge his conviction essentially on the ground that his constitutional rights were denied by the prosecutor's inclusion of improper racial remarks in the summation.

Petitioner was found guilty by a jury of criminal sale of a controlled substance (heroin) in the second degree, N.Y. Penal Law § 220.41, and sentenced on June...

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