The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Luis Morales, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Morales is currently in the custody of the New York Department of Correctional Services incarcerated at the Coxsackie Correctional facility. Respondent has answered; Morales has failed to timely reply.
I. BACKGROUND/PRIOR PROCEEDINGS
Morales was convicted, after a jury trial, in the Rensselaer County Court of one count each of Attempted Burglary in the First Degree (N.Y. Penal Law §§ 110.00/140.30(4)), Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110.00/160.15(4)) and Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09(1)). The Rensselaer County Court sentenced Morales to a definite prison term of 15 years, plus 5 years post-release supervision, for the attempted burglary and robbery counts, and an indeterminate term of from 5 to 15 years for the drug possession count. All sentences were ordered to run concurrently.
Morales timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction, and the New York Court of Appeals denied leave to appeal on Petitioner, May 7, 2007.*fn2 Morales timely filed his petition in this Court on August 6, 2007, and his amended petition on September 19, 2007.
II. ISSUES RAISED/DEFENSES
In his amended petition Morales raises two issues: (1) error in refusing to include a lesser-included offense instruction; and (2) the sentence imposed was unduly harsh and excessive. Respondent contends that Morales' claims are unexhausted. Respondent raises no other affirmative defense.*fn3
Because Morales 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(d). Consequently, this Court cannot grant relief unless the decision of the state court 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."*fn4 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."*fn5 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.'"*fn6 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 or erroneous."*fn7 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.*fn8 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 jury's verdict.*fn9
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn10 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn11
To the extent that Morales 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.*fn12 A federal court must accept that state courts correctly applied state laws.*fn13 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn14 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.*fn15
Ground 1: Failure to Include Lesser-Included Offense Instruction
Morales contends that the Rensselaer County Court erred in not giving a lesser-included charge of attempted burglary in the second degree in addition to the first-degree attempted burglary charge and a charge of attempted robbery in the second degree in addition to the first-degree attempted ...