The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Robert L. Simpson, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Simpson is currently in the custody of the New York State Department of Correctional Services, incarcerated at the Upstate Correctional Facility. Respondent has answered and Simpson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a guilty plea in the Greene County Court, Simpson was convicted under three separate grand jury indictments of one count each of Assault in the First Degree (N.Y. Penal Law § 120.10) (Indictment No. 03-131), Attempted Assault in the Second Degree (N.Y. Penal Law §§ 110.10 and 120.05) (Indictment No. 04-070), and Assault in the Second Degree (N.Y. Penal Law §§ 110.10 and 120.05) (Indictment No. 04-128). The County Court sentenced Simpson to a determinate prison term of ten years, with five years of post-release supervision on the first-degree assault conviction, an indeterminate term of one to three years' imprisonment, followed by three years of post-release supervision on one of the second-degree attempted assault convictions, and a determinate prison term of three years, followed by three years' post-release supervision on the other attempted second-degree assault charge. All sentences were ordered served concurrently. Simpson appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction, and the New York Court of Appeals denied leave to appeal on January 19, 2007.*fn2 While his appeal was pending before the Appellate Division, Simpson filed a motion in the Greene County Court to vacate his conviction under N.Y. Criminal Procedure Law § 440.10. The Greene County Court denied Simpson's § 440.10 motion in a reasoned written decision on January 31, 2006 (filed February 2, 2006). Simpson did not seek leave from the Appellate Division to appeal the denial of his § 440.10 motion. Simpson timely filed his petition in this Court on March 13, 2007.
II. GROUNDS RAISED/DEFENSES
In his petition to this Court Simpson raises two grounds: (1) his due process rights were violated because he was deprived of either his right to be present at the preliminary hearing or no preliminary hearing was held, and he was deprived of his right to appear before the grand jury; and (2) Grand Jury Indictment 03-131 was defective for lack of sufficient physical evidence to support the grand jury indictment on the second-degree assault charge, the witness statements were exculpatory and contradictory, no statement from the victim was presented to the grand jury and his attorney was deprived of the right to see the grand jury minutes. Respondent contends that Simpson has not exhausted his state court remedies, and they are procedurally barred.
In his Traverse Simpson appears to raise additional grounds. More specifically, that his petition encompasses all the claims he presented in various motions and on direct appeal to the state courts, including: (1) actual innocence; (2) a speedy trial violation; and (3) he was coerced into pleading guilty. This Court does not ordinarily consider grounds raised for the first time in the traverse. "The petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief requested . . . ."*fn3 To the extent that Simpson wishes to raise additional grounds, the proper procedure would be to file a motion to amend the petition under Federal Rule of Civil Procedure 15. In this case, however, such a motion would be futile because the amendment would not relate back to the initial filing and would, therefore, be barred by the one-year limitation period of 28 U.S.C. § 2244(d)(1).*fn4
Consequently, this Court declines to address the grounds raised for the first time in the Traverse.*fn5
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 rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 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."*fn7 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.*fn8 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.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 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.*fn11 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.*fn12 Simpson "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn13
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn14 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.*fn15
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.*fn16 In so doing, because it is not clear that it did not so do, the Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn17 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.*fn18
It is undisputed that Simpson did not raise any of the grounds raised in his petition before this Court on either direct appeal or in his N.Y. Criminal Procedure Law § 440.10 motion. Thus, his petition is unexhausted.*fn19 Because he has already exhausted his post-conviction remedies available in the state courts without raising the issues, in the absence of a showing of good cause for the default and prejudice therefrom, Simpson is procedurally barred from litigating them in a federal habeas proceeding.*fn20 Consequently, unless Simpson can show ...