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Argued: April 20, 2001

Petitioner appeals from the denial by the United States District Court for the Southern District of New York (Berman, J.) of his petition to set aside his New York state convictions for manslaughter and illegal gun possession in the second degree. Petitioner claims that the trial judge’s refusal to charge the jury on the defense of justification for the use of deadly force resulted in a denial of due process. The Court of Appeals, Leval, Circuit Judge, holds that under New York law petitioner was entitled to have the jury instructed on justification with respect to the homicide charge. The withholding of the instruction denied him the opportunity to present his defense. This error so prejudiced the petitioner’s trial as to constitute a denial of due process under the test of Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). With respect to the charge of illegal gun possession, petitioner failed to show entitlement.

Affirmed in part; reversed in part.

 
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