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POLICANO v. HERBERT

Docket No. 04-5518-PR.

507 F.3d 111 (2007)

David POLICANO, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.

United States Court of Appeals, Second Circuit.

Final Submission: June 4, 2007.

Decided: September 19, 2007.

Attorney(s) appearing for the Case

Rhea A. Grob, Assistant District Attorney (Charles J. Hynes, District Attorney Kings County, Leonard Joblove & Ann Bordley, Assistant District Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellant.

Richard Ware Levitt, New York, NY, for Petitioner-Appellee.

Before: POOLER and SACK, Circuit Judges, and GARAUFIS, District Judge.

SACK, Circuit Judge:

I.

David Policano, acting pro se, brought this application for habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. He sought relief from his conviction in New York Supreme Court, Kings County, of depraved indifference murder under N.Y. Penal Law § 125.25(2). The conviction had been affirmed in the state courts by the Appellate Division. People v. Policano,

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