The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Trover Richins, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Richins is currently in the custody of the New York Department of Correctional Services incarcerated at the Shawangunk Correctional Facility. Respondent has answered and Richins has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Richins was convicted, after a jury trial, in the Albany County Court of two counts of Assault in the First Degree (N.Y. Penal Law § 120.10(3)), two counts of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (N.Y. Vehicle and Traffic Law § 511(1)(a)) and one count of False Personation (N.Y. Penal Law § 190.23). The Albany County Court sentenced Richins, as a second felony offender, to definite concurrent prison terms of 25 years, plus 5 years' post-release supervision for each assault count, to run concurrently with an indeterminate prison term of from 31/2 to 7 years for each of the reckless endangerment counts.
Richins was sentenced to time served on the remaining counts. Richins 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 August 4, 2006.*fn2
The Appellate Division summarized the facts supporting Richins's conviction:*fn3 Evidence at trial established that defendant, whose license had been suspended, was fleeing from the police officer to avoid arrest for an outstanding parole warrant. He was traveling at high rates of speed through residential and city streets at night-at times in excess of 80 miles per hour-despite repeated pleas by his passenger to stop the vehicle and let her out.
During the chase, in addition to ignoring the police officer's flashing lights and sirens, he traveled in the opposite lane of traffic on a major city thoroughfare, picked up speed in an area where traffic grew heavier, swerved around vehicles in an effort to avoid detention and neither stopped nor slowed at intersections and traffic signals. Defendant twice spun out of control during the chase, skidded sideways at one point and turned off his headlights at another point. He finally lost control while attempting to swerve around yet another vehicle causing him to cross the median and crash into the minivan.
Richins timely filed his petition for relief in this Court on August 6, 2007. Subsequently, Richins filed a motion for a writ of error coram nobis in the state courts and requested a stay of this action pending the outcome of that motion before the state courts.*fn4 The request for a stay was denied without prejudice to renew.*fn5 Richins renewed his motion to stay.*fn6 Richins then filed a motion to amend his petition to assert the grounds raised before the state courts in his error coram nobis proceedings.*fn7 Richins's motion to stay was denied as moot,*fn8 and his motion to amend denied on the basis that the newly asserted claims would be barred by the one-year limitation period under AEDPA.*fn9
II. ISSUES PRESENTED/DEFENSES
In this petition Richins raises four grounds: (1) a peremptory removal of a prospective female African-American juror in violation of Batson;*fn10 (2) denial of a fair trial in that the Albany County Court impermissibly permitted the introduction of prior drug convictions under Sandoval*fn11 and prosecutorial misconduct in referring to the drug convictions; (3) insufficiency of the evidence; and (4) ineffective assistance of counsel.*fn12 Respondent contends that the first ground, part of the second ground (prosecutorial misconduct), and the third ground are procedurally barred as the Appellate Division found those claims were unpreserved for review. Respondent asserts no other affirmative defense to the four grounds raised in the petition.*fn13
Because Richins 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."*fn14 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."*fn15 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.'"*fn16 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.*fn17 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.*fn18 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.*fn19
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn20 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.*fn21
To the extent that Richins 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.*fn22 A federal court must accept that state courts correctly applied state laws.*fn23 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn24 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.*fn25
The prosecutor peremptorily challenged two African-American women, juror number 16 and juror number 20, and defense counsel interposed a Batson objection. The following took place before the Albany County Court:*fn26
THE COURT: Perempts, Ms. Boland?
MS. BOLAND: Thank you, Your Honor. 11, 12, 15, 16, 18, 19, 20.
MS. BOLAND: That's it, Your Honor.
MR. LYNCH: Judge, before I make my challenge, it's clear that Juror Number 16 is a black female, as well as Juror Number 20 is also a black female, and I think it is incumbent upon the prosecutor to put on the record a basis for the challenges, because we now have two black females who have been taken out on peremptory challenges, when it did not appear from voir dire that there was anything said that would indicate that they were not otherwise qualified to be jurors. I think from the Batson analysis of the case, it is incumbent upon the prosecution to put on a basis for the challenge.
THE COURT: I'm going to ask the District Attorney with regard to Jury [sic] Number 20 to place the ...