The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Melvin Brown, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Brown is currently in the custody of the New York Department of Correctional Services, incarcerated at the Sullivan Correctional Facility. Respondent has answered, the petition and Brown has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Brown was convicted in the Albany County Court of one count each of Rape in the First Degree (N.Y. Penal Law § 130.35(1)), Burglary in the First Degree (N.Y. Penal Law § 140.30(2)), Assault in the Second Degree (N.Y. Penal Law § 120.05(1)), and Unlawful Imprisonment in the First Degree (N.Y. Penal Law § 135.10). The trial court sentenced Brown to an aggregate determinant term of 241/2 years' imprisonment. Brown 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 January 6, 2006.*fn2 On March 20, 2006, Brown filed a motion under N.Y. Criminal Procedure Law § 440.10 in the Albany County Supreme Court, which was denied in an unpublished reasoned decision, and the Appellate Division, Third Department, denied leave to appeal in an unpublished decision on August 8, 2006. Brown timely filed his petition for relief in this Court on September 15, 2006. Subsequent to filing his petition in this Court, Brown filed a motion in the Appellate Division seeking reconsideration of its decision affirming his conviction. The Appellate Division summarily denied Brown's motion without opinion or citation to authority in an unpublished decision.
II. GROUNDS RAISED/DEFENSES
In his petition Brown raises eight grounds: (1) an improper coercive Allen charge given to the jury;*fn3 (2) trial court erred in making Sandoval/Molineux/Ventimiglia rulings;*fn4 (3) improper compelled disclosure of inculpatory and prejudicial evidence; (4) prosecutorial misconduct; (5) denial of challenge to jury panel without a hearing; (6) verdict against the weight of the evidence; (7) insufficiency of the evidence; and (8) sentence was harsh and severe.*fn5 Respondent contends the first ground is procedurally barred, and the second, fourth, fifth, sixth, and seventh grounds are unexhausted. Respondent raises no other affirmative defenses.*fn6
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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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.*fn11 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.*fn12 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.*fn13 Brown "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn14
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 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.*fn16
If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn17 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn18 Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn19 In so doing, because it is not clear that it did not do so, the Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn20 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn21
To the extent that the petition 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
A. State of the Pleadings
The Court initially notes that the petition states the grounds raised in almost entirely conclusory terms without any factual statement in support of the grounds. In his traverse Brown does provide some factual support for his first (Allen charge), second (Sandoval/Molineux/-Ventimiglia rulings), and fourth (prosecutorial misconduct) grounds. The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn26 If it plainly appears on the face of the petition that petitioner is not entitled to relief, a district court must dismiss the petition.*fn27 The district court may dismiss on this basis sua sponte after initial screening and an answer has been ordered and filed.*fn28 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important ... ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date."
Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn29
The fact that the petition is substantially deficient notwithstanding, rather than dismiss the unsupported grounds this Court will look to the arguments made before the Appellate Division on his third (compelled disclosure of inculpatory evidence), fifth (denial of hearing on challenge to jury panel), sixth (weight of the evidence), seventh (sufficiency of the evidence), and eighth (harsh and serve sentence) grounds, and assume that Brown has incorporated those arguments in his petition to this Court.
The facts of the crime, as recited by the Appellate Division: Defendant lived at the victim's apartment in the City of Albany until December 2002 when, following a fight, she directed him to leave her home. Defendant exited, but returned later that night. When the victim reportedly refused to permit him to enter her apartment, defendant kicked in two locked doors to gain entry. Once inside, defendant allegedly repeatedly punched, slapped and kicked the victim, forced her to have sexual intercourse with him, and then prevented her from leaving under threat of death. She escaped the next morning, fleeing while partially attired onto the street. Police were summoned and she was transported to the hospital.*fn30
Brown contends that he was prejudiced by a reason of improper and coercive Allen charges. The Appellate Division tersely rejected Brown's argument:
Defendant's further assertions do not require extended discussion. While defendant argues that the two Allen charges were improper, the issue was not preserved by an objection at trial (citation omitted) and, in any event, our review of the two charges does not reveal reversible error.*fn31
Respondent contends that consideration of this ground is procedurally barred. The Court agrees. Under the adequate-and-independent-state-ground doctrine, federal courts may not review the judgment of a state court that "rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision."*fn32 Because this doctrine applies on federal habeas review and because the state-law ground may be a procedural bar,*fn33 federal habeas courts often speak of an "adequate and independent procedural bar" to federal review of a claim or simply of a "procedurally barred" federal claim. A federal habeas court lacks jurisdiction to evaluate questions of federal law decided by a state court where the state court judgment "rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn34 Where a decision "fairly appear[s] to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion," habeas courts presume that there is no adequate and independent state law ground supporting the judgment.*fn35 Finally, "[s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."*fn36 Accordingly, a procedural bar is deemed "adequate" only if it is based on a rule that is "firmly established and regularly followed" by the state in question.*fn37
The Second Circuit has laid out three clues to follow to classify the decision as either fairly appearing to rest primarily on or interwoven with federal law, or as resting primarily on state procedural law: (1) the face of the state court opinion; (2) whether the state court was aware of a procedural bar; and (3) the practice of state courts in similar circumstances.*fn38 There is no question that the Appellate Division explicitly invoked the state procedural rule as barring review. New York's contemporaneous objection rule to preserve appellate review, New York Criminal Procedure Law § 470.05(2), is an adequate and independent state procedural rule precluding review.*fn39
Even if the Court were to reach the issue on the merits, Brown would not prevail. Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn40 In so doing, because it is not clear that it did not do so, the Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn41 This Court ...