The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Bartolome Brito, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Brito is currently in the custody of the New York Department of Correctional Services, incarcerated at the Sing Sing Correctional Facility. Respondent has answered, and Brito has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a trial by jury, Brito was convicted in the Oneida County Court of one count each of: Conspiracy in the Fourth Degree (N.Y. Penal Law § 105.10(1)), Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21), Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16), and Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39). The trial court sentenced Brito to concurrent, indeterminate prison terms of 1a to 4 years for the conspiracy count; 8 years to life for the first-degree drug possession count; and two terms of 8a to 25 years for each of the third-degree drug sale and possession counts. Brito timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction in a reasoned, published decision. The New York Court of Appeals dismissed his appeal to that court for failure to prosecute on September 30, 2005.*fn2 On June 8, 2006, Brito filed a motion for a writ of error coram nobis in the Appellate Division, Fourth Department, which summarily denied his motion without opinion or citation to authority, and the New York Court of Appeals denied leave to appeal on January 19, 2007.*fn3 Brito timely filed his petition for relief in this Court on November 29, 2006, and his amended petition on February 16, 2007.
II. GROUNDS RAISED/DEFENSES
In his amended petition, Brito raises seven grounds: (1) the trial court erred in seating a juror and then later refused to disqualify the juror; (2) the trial court erred by not suppressing evidence of intercepted telephone conversations and evidence obtained under a search warrant based on those conversations; (3) even if the eavesdropping evidence and evidence pursuant to the search warrant were legally obtained, the trial court erred in not suppressing evidence that was outside the scope of the warrant; (4) the trial court erred in precluding Brito from calling his girlfriend to testify where preclusion was ordered as a sanction for the girlfriend's presence during a portion of the People's case; (5) the trial court erred in denying his motion to preclude voice identification evidence; (6) he was deprived of the effective assistance of appellate counsel because counsel failed to timely file a brief in the New York Court of Appeals; and (7) appellate counsel's error constituted "plain error." Respondent contends that Brito's first, second, third, fourth, and fifth grounds are procedurally barred. Respondent pleads no other affirmative defenses.*fn4
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."*fn5 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."*fn6 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.*fn7 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.'"*fn8 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.*fn9 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.*fn10 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.*fn11 Brito "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 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.*fn14
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.*fn15 A federal court must accept that state courts correctly applied state laws.*fn16 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn17 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.*fn18
Brito raised the first five grounds asserted in the amended petition on direct appeal. After the New York Court of Appeals granted leave to appeal, the appeal was dismissed for failure to prosecute.*fn19 Respondent contends that this dismissal constitutes an independent state law ground sufficient to bar litigation of these claims in a federal habeas proceeding. This Court agrees.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn20 In federal habeas proceedings a district court may not reach the merits of procedurally defaulted claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn21 Under controlling Second Circuit law, to constitute an adequate and independent state law ground it must be consistently applied,*fn22 and expressly relied upon.*fn23 To avoid this bar, a petitioner must demonstrate cause for the default and actual prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice.*fn24
It is clear that the dismissal by the New York Court of Appeals rested upon state grounds, i.e., the failure to comply with procedural requirements necessary to perfect the appeal. The Second Circuit has, at least implicitly, held that dismissal of an appeal by the New York Court of Appeals for failure to ...