Dwayne Henry v. Thomas Poole, Superintendent Five Points Correctional Facility and Eliot L. Spitzer, Attorney General of New York

Judge SACK concurs, in a separate opinion.

KEARSE, Circuit Judge.

Petitioner Dwayne Henry, a New York State (“State”) prisoner convicted of robbery, appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel when his trial attorney elicited and emphasized an alibi that was clearly given for the wrong day. The district court denied the petition on the ground that the state court’s rejection of…