Salih Sevencan v. Victor Herbert, Superintendent, Attica Correctional Facility

I concur in the judgment. Regretfully, I cannot concur in the majority’s reasoning, which has two central flaws. First, the majority ignores the careful factual record made by the district court and thus sweeps far more widely than necessary to resolve this appeal. More important, the majority opinion misconstrues and conflicts with Yung v. Walker, 296 F.3d 129 (2d Cir.2002) and impermissibly restricts the authority granted to the district court by 28 U.S.C. § 2254(d)(2).

To explain why the record below justifies affirmance without any consideration of the parameters of Yung, I will briefly…