dissenting:
I respectfully dissent but do so reluctantly as I recognize that the court has made a careful study of this case and that it has reached its result only after thoughtful deliberation. Nevertheless, there can be no doubt that the Appellate Division of the Superior Court of New Jersey on two occasions went through a similar process with no less an awareness of its obligations and yet reached a result opposite than that the court reaches here. In the final analysis, then, this case involves a choice of two different views of tbe effect of the prosecutor’s misconduct and the trial court’s efforts to remedy the situation.
I do not reiterate the background of this case as the court fairly sets it forth. Nor do I discuss the controlling legal authorities at length as the court lays them out. Rather, I merely state the overarching legal principles involved here. Under the AEDPA when a federal court considers a state prisoner’s habeas corpus petition, the underlying decision of the state court with respect to any claim that was adjudicated on the merits must control unless, as germane here, it “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Inasmuch as this court acknowledges that this case does not implicate the “contrary to” prong of section 2254(d)(1), the court must determine whether the state decisions were an unreasonable application of Federal law as determined by the Supreme Court. I am satisfied that they were not and, in fact, were correct. Indeed, I believe that, if anything, the prosecutor’s comments which resulted in the admonitions and directions of the trial court prejudiced the state at the trial. After all, the jury could not possibly have failed to recognize that the prosecutor was making an improper appeal to it. In this regard, I point out that this is not a situation in which the prosecutor suggested to the jury that he had important evidence pointing to the defendant’s guilt which for some reason he had not *122presented to the jury. Thus, while the prosecutor made arguments not supported by the evidence they were merely improper on the basis of the evidence of which the jury was aware. Moreover, I see no reason to believe that the jury would have had any difficulty carrying out the judge’s instructions to disregard the improper comments.
It is also important to remember that the Appellate Division reviewed this matter not once but twice and thus the court makes reference to both of its decisions. Actually, two separate panels of the Appellate Division consisting of five different judges considered this case, once on direct appeal and once in post-conviction relief proceedings and came to the unanimous conclusion that the prosecutor’s conduct did not require a reversal of the convictions.1 It also is important to recognize that these proceedings are remedial, not punitive, so that if, as I think is clearly the case, the verdict was not influenced by the prosecutor’s improper remarks, we should deny Moore relief.
Finally, I point out that under the AED-PA we are in the unfamiliar position of being obliged to make a highly deferential review of a state court’s decisions of law for ordinarily our review of legal determinations is plenary. Thus, we must guard against the possibility that our result is driven by our mere conclusion that the state court erred as the AEDPA requires more for the granting of habeas corpus relief.
For the foregoing reasons I respectfully dissent.
. Moore contended that his right to a fair trial had been violated in the post-conviction relief proceedings as an aspect of an argument that he was entitled to a new trial because counsel had been ineffective.