The opinion of the court was delivered by: James K. Singleton, Jr., United States District Judge
Petitioner Dwayne Buckery, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Buckery is currently in the custody of the New York Department of Correctional Services, incarcerated in the Attica Correctional Facility. Respondent has answered the petition and Buckery filed his traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
Buckery was convicted by a jury in the Warren County Court of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Buckery was sentenced as a persistent felony offender to an indefinite term of 20 years to life. Buckery timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction July 28, 2005, and the New York Court of Appeals denied leave to appeal on September 26, 2005. People v. Buckery, 798 N.Y.S.2d 788 (N.Y. App. Div.), lv. denied, 837 N.E.2d 740 (N.Y. 2005). His conviction became final 90 days later, December 27, 2005,*fn2 when his time to seek certiorari from the United States Supreme Court lapsed.
On September 18, 2006, Buckery filed a motion for a writ of error coram nobis in the Appellate Division, Third Department. The Appellate Division summarily denied the motion without reasoned opinion and the New York Court of Appeals denied leave to appeal on May 31, 2007. People v. Buckery, 869 N.E.2d 662 (N.Y. 2007).
Buckery timely filed his petition for relief in this Court on December 26, 2006, and his amended petition with leave of court on August 3, 2007.
II. ISSUES RAISED/DEFENSES
In his amended petition, Buckery raises four issues: (1) he received ineffective assistance of counsel at the pre-trial stages; (2) he was denied due process and a fair trial due to the court's supplemental jury instructions and the introduction of uncharged crimes; (3) his persistent felony offender status is unconstitutional; and (4) he received ineffective assistance of appellate counsel.
Respondent contends that Buckery's second and third grounds are unexhausted. Respondent raises no other affirmative defenses.
Because Buckery filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.*fn4 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect."*fn6 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn7 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn8
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn9
In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn10 If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn11 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn12 A state court decision is conclusively presumed to have been on the merits when the state court disposes of the claim on other than procedural grounds, even where it fails to provide any reasoning for the disposition.*fn13 Where there is no reasoned decision of the state court addressing the ground or grounds raised by Buckery on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn14
Ground 1. Ineffective Assistance of Counsel (Pre-Trial)
Buckery asserts several instances in that he describes as constituting ineffective assistance of counsel during the pretrial period: (1) failure to obtain immediate release on his own recognizance for the failure to hold a preliminary hearing within the time prescribed by N.Y. Criminal Procedure Law § 180.80; (2) failure to preserve his rights to testify at the grand jury proceedings; (3) failure to seek preclusion of People's evidence based on the failure of the prosecution to timely respond to an Omnibus motion; and (4) failure at a Huntley hearing to adequately cross-examine the officer who took Buckery's statement, conceding Buckery's rights were not violated, and withdrawing the request for a Huntley hearing.*fn15
Buckery raised these issues on direct appeal. The Appellate Division did not specifically address the ineffective counsel issue, but denied it in the catch-all at the end of its decision: "Defendant's remaining contentions have been reviewed and rejected."*fn16
Under the standard in Strickland v. Washington, to demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn17 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn18 Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn19
Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland:*fn20
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
A. Failure to Obtain Release
The record reflects the following occurred.*fn21 (1) Buckery was arrested on August 6 or 7, 2003. (2) On August 8 Buckery, appearing pro se, requested a preliminary hearing. (2) On August 17 counsel first visited Buckery. (3) On August 18 counsel also requested a preliminary hearing. (4) A preliminary hearing was scheduled for 11:00 a.m., August 22. (5) The grand jury returned an indictment at approximately 10:55 a.m., August 22. It is uncontested that Buckery was incarcerated during the entire period between his arrest and the date the grand jury returned the indictment, and that time exceeded the time permitted under N.Y. Criminal Procedure Law § 180.80.
Counsel then filed an application for a writ of habeas corpus in the Warren County Court. In the habeas petition, counsel argued that because of the violation of § 180.80 Buckery was entitled to immediate dismissal of the charges and release from confinement. The County Court denied the writ and set bail. In doing so, the County Court opined that had Buckery sought relief before the indictment was returned he would have been entitled to release on his own recognizance under § 180.80 ...