The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Eddie Ortiz, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ortiz is currently in the custody of the New York Department of Correctional Services, incarcerated in the Fishkill Correctional Facility. Respondent has answered the petition, and Ortiz filed his traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 2001 a Cayuga County Court jury returned a verdict of guilty on a charge of Aggravated Harassment of an Employee by an Inmate (N.Y. Pen. Law § 240.32). On a post-conviction motion, the trial court vacated the conviction, finding that the verdict was against the weight of the evidence. The People appealed to the Appellate Division, Fourth Department, which reversed the trial court and reinstated the verdict, and the New York Court of Appeals denied leave to appeal.*fn2 On remand, Ortiz was sentenced an indeterminate term of two and one-half to five years, to be served consecutive to his current sentence. Ortiz timely appealed to the Petitioner, Appellate Division, Fourth Department, which affirmed his conviction in a reasoned written opinion and the New York Court of Appeals denied leave to appeal on June 27, 2005.*fn3
On August 17, 2006, Ortiz filed a motion for a writ of error coram nobis in the Appellate Division, Fourth Department, which summarily denied his motion without opinion or citation to authority, and the New York Court of Appeals denied leave to appeal on January 25, 2007.*fn4
Ortiz timely filed his petition for relief in this Court on February 22, 2007, and his amended petition on April 2, 2007.
II. GROUNDS RAISED/DEFENSES
In his petition before this Court Ortiz raises four grounds: (1) and (2) both claim ineffective assistance of appellate counsel; (3) insufficiency of the evidence to support the conviction; and (4) in denying his application for a writ of error coram nobis without ordering a response and holding a hearing violated New York law.
Respondent does not assert any affirmative defenses.*fn5
Because Ortiz 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."*fn6 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."*fn7 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.'"*fn8 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."*fn9 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.*fn10 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.*fn11 Ortiz "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 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.*fn14 If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn15 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn16 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.*fn17 Where there is no reasoned decision of the state court addressing the ground or grounds raised by Ortiz 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.*fn18
To the extent that Ortiz raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn19 A federal court must accept that state courts correctly applied state laws.*fn20 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn21 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn22
Ground 1: Ineffective Appellate Counsel.
Ground 2: Ineffective Appellate Counsel.
Because both the first and second ground raise the same legal issue and a common set of facts, the Court finds it appropriate to discuss the two grounds concurrently.*fn23 Ortiz raised these grounds in his motion for a writ of error coram nobis, which was summarily denied by the Appellate Division without a reasoned decision and without requiring a response by the People.*fn24
Ortiz argues that appellate counsel's performance was deficient in failing to raise and argue ineffective assistance of trial counsel, that the trial court improperly denied Oriz's request for a continuance, and, although the issue was presented to the Appellate Division, counsel incorrectly argued the issue that the sentence imposed was harsh and excessive.
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, Ortiz must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn25 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.*fn26 Ortiz 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.*fn27 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:*fn28
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.
The failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel.*fn29 "However, a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."*fn30
The standard applied in New York in analyzing ineffective assistance of counsel claims is, as set forth in People v. Benevento, a flexible one, "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met."*fn31 The core of the New York test is whether the defendant received "meaningful representation."*fn32 As in Strickland, "counsel's efforts should not be second guessed with the clarity of hindsight to determine how the defense might have been more effective."*fn33
A. Ineffective Assistance of Trial Counsel
Ortiz contends that at trial counsel was deficient in that: (1) counsel failed to object to the introduction of prejudicial evidence; (2) counsel failed to introduce into evidence the correctional officer's clothing and certain laboratory evidence; (3) counsel failed to object to the continued shackling of Ortiz's legs during trial; (4) counsel's objection to the constitutionality of N.Y. Penal Law § 240.32 was deficient; and (5) counsel failed to object to the conviction on the basis of insufficiency of the evidence.*fn34
I. Objection to Introduction of Prejudicial Evidence
The prejudicial evidence of which Ortiz complains was: (1) testimony of the correctional officer that the liquid substance thrown at him smelled like urine, and (2) evidence that a substance found in a puddle tested positive for urine.
Counsel did, in fact, object to the introduction of the testimony of the correctional officer, ...