The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Leon A. Weeks, a state prisoner proceeding pro se, filed a petition for relief under 28 U.S.C. § 2254 in the Western District of New York, which transferred the case to this Court. Weeks is currently in the custody of the New York Department of Correctional Services, incarcerated at the Attica Correctional Facility. Respondent has answered the petition. Weeks has not filed a traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Weeks was convicted in the Oneida County Court of two counts of second-degree murder (N.Y. Pen. Law § 125.25, ) and one count of endangering the welfare of a child (N.Y. Pen. Law § 260.10). The County Court sentenced Weeks to two concurrent indefinite terms of 25 years to life on the murder convictions and a concurrent definite term of one year on the child endangerment conviction, all sentences to be served consecutively to a sentence Weeks was then serving as a result of an earlier conviction in Cortland County. Weeks timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction and sentence, and the New Court of Appeals denied leave to appeal on May 17, 2005.*fn2 Weeks timely filed his petition for relief in the Western District of New York on July 6, 2006.
II. ISSUES PRESENTED/DEFENSES
In his petition Weeks raises two issues: (1) ineffective assistance of counsel, and (2) a denial of due process by a failure to give an accomplice instruction to the jury. Respondent raises two affirmative defenses to the second ground: (1) Weeks has not properly exhausted his state court remedies, and (2) it is procedurally barred on independent state grounds. Respondent raises no other affirmative defense.*fn3
Because Weeks 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 Weeks 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: Ineffective Assistance of Counsel.
It was discovered after trial that an attorney in the same firm as trial counsel had represented the principal prosecution witness in an unrelated matter. Weeks contends that this constituted an impermissible conflict of interest that rendered the assistance of counsel ineffective. The Appellate Division rejected Weeks's argument, holding:
In his pro se supplemental brief, defendant contends that he was denied the effective assistance of counsel due to the fact that another attorney in defense counsel's office had previously represented a prosecution witness on an unrelated matter and thus defense counsel had an impermissible conflict of interest. At no time during the trial did the prosecutor or defense counsel raise any possible conflict of interest. "To prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate the existence of a potential conflict of interest" (People v. Harris, 99 N.Y.2d 202, 210, 753 N.Y.S.2d 437, 783 N.E.2d 502). Defendant must also show "that 'the conduct of his defense was in fact affected by the operation of the conflict of interest,' or that the conflict 'operated on' the representation" (People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630), and defendant failed to make such a showing here (see People v. Suarez, 13 A.D.3d 320, 788 N.Y.S.2d 37; People v. Henderson, 11 A.D.3d 366, 367-368, 783 N.Y.S.2d 35; People v. Wingate, 297 A.D.2d 761, 762, 747 N.Y.S.2d 791, lv. denied 99 N.Y.2d 566, 754 N.Y.S.2d 219, 784 N.E.2d 92). Defendant does not state how the alleged conflict of interest affected his counsel's strategic decisions or conduct during the trial. Defense counsel vigorously cross-examined the witness and attacked her credibility during summation. In light of the fact that defense counsel did not know of the conflict at the time of the trial, there is no basis to conclude that the potential conflict hindered his representation of defendant ...