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This is an appeal from an order of the United States District Court for the Southern District of New York (Broderick, J.) conditionally granting the petition of Larry Mills for a writ of habeas corpus.

Mills was convicted of murder in the second degree, in violation of N.Y. Penal Law § 125.25(1) (McKinney 1975), and criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03 (McKinney 1980), upon a jury verdict rendered in the Supreme Court, Kings County, on August 10, 1983. He was sentenced on September 12, 1983 to an indeterminate term of twenty years to life on the murder charge and three to nine years on the weapons charge, the sentences to be served concurrently. The Appellate Division affirmed the conviction in a memorandum opinion, People v. Mills, 105 A.D.2d 759, 481 N.Y.S.2d 411 (2d Dep't 1984) (mem.), and the New York Court of Appeals denied leave to appeal, People v. Mills, 64 N.Y.2d 891, 487 N.Y.S.2d 1038, 476 N.E.2d 1015 (1985). A motion to vacate the judgment of conviction was denied by the Kings County Supreme Court on September 12, 1985, and the Appellate Division, on November 19, 1985, denied leave to appeal from the order denying the motion.

The instant petition for a writ of habeas corpus, pursuant to the provisions of 28 U.S.C. § 2254, was filed after the conclusion of all state court proceedings. The writ was granted conditionally by Judge Broderick in a memorandum order dated February 18, 1987. Mills v. Scully, 653 F.Supp. 885 (S.D.N.Y.1987). Judge Broderick determined that Mills "was not accorded a fair trial because of the effect on the jury of the failure of either the prosecutor or the defense counsel to correct false and misleading testimony." Id. at 895. Accordingly, he concluded that Mills' trial attorney did not provide effective assistance and that the verdict was infected by prosecutorial misconduct. We reverse.


826 F.2d 1192 (1987)

Larry MILLS, Petitioner-Appellee, v. Charles SCULLY, Superintendent, Green Haven Correctional Facility, Respondent-Appellant.

No. 1289, Docket 87-2133.

United States Court of Appeals, Second Circuit.

Argued May 29, 1987.

Decided August 26, 1987.

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