The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Alphonzo Davis, a state prisoner proceeding pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Davis is currently in the custody of the New York Department of Correctional Services, incarcerated at the Great Meadow Correctional Facility. Respondent has answered, to which Davis has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Davis was convicted in the Albany County Court, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law § 125.25(1)), Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25(1)), and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)). The trial court sentenced Davis as a second felony offender to a prison term of 25 years to life for the murder count, a consecutive 25-year determinate sentence with five years' of post-release supervision for the attempted murder count, and a concurrent 15-year determinate period of incarceration with five years' post-release supervision for the weapons-possession count, for an aggregate prison term of 50 years. Davis timely appealed his conviction to the Appellate Division, Third Department, which affirmed the conviction, and the New York Court of Appeals denied leave to appeal on February 24, 2006.*fn2 Davis timely filed his petition for relief in this Court on March 2, 2007.
II. ISSUES PRESENTED/DEFENSES
In his petition Davis raises three grounds: (1) the admission into evidence of statements to the lead detective during the course of the investigation by a witness who did not testify at trial violated his right to confrontation; (2) comments by the prosecutor in summation deprived petitioner of a fair trial; and (3) the imposition of consecutive sentences was illegal and violated petitioner's right to a jury trial. Respondent contends that Davis has not properly exhausted his second ground, improper summation by the prosecutor. Respondent does not assert any other affirmative defenses.*fn3
Because Davis 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 Davis 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: Confrontation Claim
Davis presents the same arguments before this Court as he did before the Appellate Division. The testimony challenged was that of the lead detective who investigated the crime, Kenneth Wilcox. Wilcox testified to a statement made to him by a third party (Anthony Malloy) that a separately tried co-defendant, Sherrod Craft, had told Malloy that he (Craft) and Davis committed the crime; presenting a double-hearsay issue. Davis argues that the admission of this testimony violated the Confrontation Clause or, alternatively, if not in violation of the Confrontation Clause was unduly prejudicial and should have been excluded. The Appellate Division recounted in encapsulated form the challenged testimony and rejected Davis's arguments:*fn16
Defendant now appeals primarily challenging County Court's ruling permitting the lead detective, Kenneth Wilcox, to relate statements made to him during the course of the investigation by a witness who did not testify at trial. Defendant argues that this ruling violated his Sixth Amendment right to confront witnesses (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ) and, even if the testimony was admissible, it was unduly prejudicial. On direct examination, Wilcox detailed the course of the 14-month investigation, recounting that two weeks after the shooting he determined the motive for it and possible suspects after a witness reported that Craft had admitted his and defendant's role in the shooting during a conversation the day after it occurred. The court overruled defense counsel's hearsay objection, repeatedly instructing the jury that the statements were not offered to prove the truth of what the witness had said to Wilcox out of court and were not direct evidence but, rather, were admissible merely to recount the actions taken by law enforcement. On cross-examination, defense counsel focused on how other suspects had been eliminated and explored the motive for the out of court statements to the detective. On redirect examination, the court permitted Wilcox to testify to the statement in greater detail, over defense objections.
Initially, although Crawford was decided after this trial, it enunciated a "new rule" (Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 ) and, as such, applies retroactively to this appeal (see People v. Hardy, 4 N.Y.3d 192, 197, 791 N.Y.S.2d 513, 824 N.E.2d 953 ; People v. Pacer, 21 A.D.3d 192, 194, 796 N.Y.S.2d 787 ; People v. Ryan, 17 A.D.3d 1, 3 n. 1, 790 N.Y.S.2d 723 ). Under Crawford, the witness statement was "testimonial" in nature in that it was taken by police officers "in the course of interrogations" (Crawford v. Washington, supra at 52, 124 S.Ct. 1354; see People v. Ryan, supra at 4, 790 N.Y.S.2d 723; cf. People v. Bradley, 22 A.D.3d 33, 37, 799 N.Y.S.2d 472, 476 ; People v. Newland, 6 A.D.3d 330, 331, 775 N.Y.S.2d 308 , lv. denied 3 N.Y.3d 759, 788 N.Y.S.2d 676, 821 N.E.2d 981 ). Here, however, the Confrontation Clause was not implicated because, as County Court properly instructed the jury, the statement was not admitted for its truth (i.e., that defendant and Craft were the shooters) but, rather, for the limited purpose of explaining the detective's actions and the sequence of events during the lengthy investigation leading to defendant's arrest (see People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456 ; People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545 , lv. denied 4 N.Y.3d 763, 792 ...