The opinion of the court was delivered by: Hon. James K. Singleton, Jr. United States District Judge
Petitioner Gregory P. Cunningham, Sr., a state prisoner appearing through counsel, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Cunningham is presently in the custody of the New York Department of Correctional Services, incarcerated at the Five Points Correctional Facility. Respondent has answered the petition, and Cunningham has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
An indictment was filed in Montgomery County charging Cunningham with one count of grand larceny in the second degree (N.Y. Penal Law § 155.40) and 13 counts each of forgery in the second degree (N.Y. Penal Law § 170.10) and criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). A second indictment was also filed in Montgomery County charging petitioner with two counts each of forgery in the second degree (N.Y. Penal Law § 170.10) and criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). All of the charges in both of those indictments concern forged checks drawn on the account of Herkimer Precut, Inc. (Herkimer Precut), a business owned by Peter Morat. At the joint trial on those indictments, petitioner contended that the offenses charged in the first indictment had not occurred in Montgomery County. The County Court instructed the jury to decide the issue of geographical jurisdiction at the outset of its deliberations because if the Montgomery County Court lacked jurisdiction, the jury's verdict "may be void and ineffective." The jury found that the County Court lacked geographic jurisdiction with respect to all counts of the first indictment, and so indicated by writing "No Jurisdiction" at the top of the verdict sheet. The jury found petitioner guilty only of count two in the second indictment, charging forgery in the second degree.*fn2 Cunningham appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction by a divided court.*fn3 Upon further appeal, the New York Court of Appeals reversed the conviction and ordered the indictment dismissed.*fn4
An indictment was subsequently filed in Oneida County charging petitioner with one count of grand larceny in the second degree (N.Y. Penal Law § 155.40 ), two counts of grand larceny in the third degree (N.Y. Penal Law § 155.35), and 19 counts each of forgery in the second degree (§ 170.10 ) and criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). Many of those charges concern checks drawn on an account maintained by Onondaga Logging, another business owned by Peter Morat. Eleven of those charges, however, concern Herkimer Precut checks that were part of the first Montgomery County indictment on which petitioner previously was tried and the jury found "No Jurisdiction." Cunningham moved to dismiss the third indictment on the ground that a trial thereon was barred by the New York statutory prohibition against double jeopardy. The Oneida County Court denied the motion, and Cunningham sought a writ of prohibition under N.Y. Civil Practice Law and Rules Article 78 in the Appellate Division, Fourth Department, on the grounds that the second trial was barred by the New York statutory prohibition against double jeopardy. The Appellate Division denied the petition, and the New York Court of Appeals dismissed Cunningham's appeal as moot.*fn5
After a trial by jury, Cunningham was convicted in the Oneida County Court of grand larceny in the second degree (N.Y. Penal Law § 155.40 ), two counts of grand larceny in the third degree (N.Y. Penal Law § 155.35), 19 counts of forgery in the second degree (N.Y. Penal Law § 170.10 ) and 19 counts of criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). The Oneida County Court sentenced Cunningham to an aggregate indeterminate prison term of 171/2 to 35 years and ordered restitution in the amount of $63,000.00. Cunningham timely appealed his conviction to the Appellate Division, Fourth Department, which dismissed the 19 counts of possession of forged instruments and affirmed his conviction on the remaining counts; the Court of Appeals denied leave to appeal and his petition for rehearing on June 24, 2005.*fn6 Cunningham timely filed his petition in this Court on May 30, 2006.
II. GROUNDS RAISED/DEFENSES
In his petition Cunningham raises five grounds: (1) denial of effective assistance of counsel; (2) double jeopardy; (3) denial of right to confront witnesses; (4) improper "bolstering" of state witnesses by prosecution; and (5) double jeopardy under New York law.*fn7 Respondent contends Cunningham's third ground is procedurally barred. Respondent asserts no other affirmative defenses.*fn8
Because the petition was filed 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 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."*fn9 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."*fn10 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn11 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.'"*fn12 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.*fn13 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.*fn14 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.*fn15 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn16
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn17 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.*fn18
To the extent that Cunningham 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
The Court notes at the outset that the lengthy petition, memorandum of law in support of the petition, and traverse filed by Cunningham (a total of 155 pages) read more like a brief on direct appeal than a petition for federal habeas relief. In so doing, Cunningham grossly misperceives the role of this Court in a federal habeas proceeding. As noted above, this Court is limited to federal constitutional errors as determined by decisions of the Supreme Court. In assessing those errors, this Court is also cabined by the requirement that the decision of the state court must not be just incorrect or erroneous, but its interpretation and application of Supreme Court precedent must be objectively unreasonable.
Ground 1: Ineffective Assistance of Counsel
Cunningham was represented in the trial court by his brother, Thomas F. Cunningham.*fn23
The People moved to disqualify Thomas Cunningham on two separate occasions on conflict of interest grounds. Cunningham opposed the motions. The second motion was filed March 5 and heard on Thursday, March 6, with trial scheduled to begin on Monday, March 10. The trial court denied both motions, the second as being untimely. Counsel for Cunningham also requested an adjournment of the trial so that Cunningham could find substitute counsel, which was also heard on March 6. The trial court also denied this motion, noting that if Cunningham were to seek counsel on his own, that new counsel should be made aware that trial would begin on Monday, March 10.*fn24
On the first day of trial a conference was held in chambers to discuss in limine motions. Following the in-chambers conference, the Court conducted a discussion on the record as to what was discussed in chambers. Defense counsel stated that the prosecutor, while in chambers, had threatened him with indictment for activities related to Cunningham's case. Defense counsel noted that the prosecutor told him that she would consider conspiracy charges against members of Cunningham's family, including defense counsel, if Cunningham didn't accept his responsibilities. Counsel contended this insinuated that if Cunningham would not accept the plea agreement on the table, the Prosecutor would seek indictment of other family members, including Cunningham's wife, daughter, and defense counsel. Defense Counsel contended that a threat loomed over the entire trial that impeded his ability to continue to represent the defendant.
Consequently, counsel moved to withdraw from the case due to a conflict of interest. The Oneida County Court denied counsel's request, and the Appellate Division on direct appeal rejected Cunningham's position, holding:
In response to a motion brought by the People a year before trial to disqualify defense counsel, the court adequately and properly inquired of defendant and his counsel regarding conflicts and properly determined that defendant had an awareness of the potential risks involved and knowingly chose to proceed with his counsel. Defendant, on the eve of trial, moved for an adjournment to allow him time to retain new counsel. We conclude the court did not abuse its discretion in denying defendant's motion. In any event, the record does not establish that the alleged conflicts bear a substantial relation to the conduct of the defense.*fn25
Under Strickland,*fn26 to demonstrate ineffective assistance of counsel, Cunningham must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn27 Counsel's performance is deficient when counsel makes errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn28
Cunningham 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 ...