The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner David Church, a state prisoner proceeding pro se, filed an amended petition for habeas corpus relief under 28 U.S.C. § 2254.*fn2 Church is currently in the custody of the New York Department of Correctional Services, incarcerated at the Cayuga Correctional Center. Respondent has answered, and Church has filed a reply.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a guilty plea in the Tompkins County Court, Church was convicted of 10 counts of Unlawful Surveillance in the Second Degree (N.Y. Penal Law § 24045). After grouping the counts into four groups, the Tompkins County Court sentenced Church to an indeterminate prison term of one and one-third years to four years on each count in the group, to be served concurrently, with the sentences in each group to run consecutive to the sentences in each of the other groups, resulting in an aggregate prison term of five and one-third years to sixteen years in prison. Church timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction and sentence in a reasoned decision. The New York Court of Appeals denied leave to appeal on October 24, 2006.*fn3 On November 29, 2006, Church, appearing pro se, filed a motion to vacate the judgment of conviction under N.Y. Criminal Procedure Law § 440.10. The Tompkins County Court denied the motion in a reasoned decision, and the Appellate Division, Third Department, summarily denied leave to appeal without opinion or citation to authority on May 1, 2007. Church then filed a petition for an error coram nobis in the Appellate Division, Third Department, on May 13, 2007, which summarily denied his petition on June 19, 2008. The New York Court of Appeals denied leave to appeal on September 17, 2008.*fn4 Church timely filed his petition in this Court on October 23, 2007. Church filed his amended petition on June 5, 2008.
II. GROUNDS PRESENTED/DEFENSES
In his original petition, Church raised five grounds for relief: (1) unlawful search and seizure (lack of probable cause); (2) guilty plea was induced in violation of Fifth Amendment right against self-incrimination (not made knowingly, intelligently, and voluntarily); (3) the imposition of consecutive sentences violated the Double Jeopardy Clause of the Fifth Amendment; (4) his sentence was unduly harsh and excessive (Eighth Amendment); and (5) ineffective assistance of trial counsel. In his amended petition, Church raises five grounds: (1) his guilty plea was not knowingly, intelligently, and voluntarily given; (2) he received ineffective assistance of trial and appellate counsel; (3) he was denied a full and fair hearing in the Tompkins County Court on his challenge to the search warrant; (4) the search warrant was invalid; and (5) the imposition of consecutive sentences violated his right to be free of double jeopardy under the Fifth Amendment. Respondent contends that: (1) Church's first ground, the plea was involuntary, is procedurally barred; and (2) Church's claim of ineffective appellate counsel is barred by the applicable statute of limitations and is unexhausted. Respondent raises no other affirmative defense.*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 Petitioner "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
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.*fn16 A federal court must accept that state courts correctly applied state laws.*fn17 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn18 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.*fn19
Ground 1: Guilty Plea Involuntary and Ground 2: Ineffective Assistance of Counsel
Because the outcome of the first ground is dependent upon the second ground, it is appropriate to combine the discussion of the two grounds. In his first ground, Church contends that because he was not clearly informed of the consequences of his plea, specifically that consecutive sentences could be imposed, his plea was not knowingly, voluntarily, and intelligently entered. In his second ground, Church essentially argues that the failure to adequately inform him that consecutive sentences could be imposed, coupled with what Church contends were false representations, rendered counsel's representation ineffective. Church raised these grounds in his § 440.10 motion. The Tompkins County Court, in denying Church's motion, held:
All of Defendant's contentions are ones which were either raised on appeal, or could have been raised on appeal. The closest Defendant comes to raising a new issue is by reciting his understanding of conversations with his attorney and characterizing those recollections as demonstrating the attorney's ineffectiveness. For example, he claims his attorney told him that there was a plea agreement under which he would be sentenced concurrently for all of the offenses. He presents no affidavits or other information beyond his self-serving statement. His statement is contrary to his statements made on the record and contrary to the clear record of the plea proceeding. The allegations made by Defendant do not raise an issue concerning ineffective assistance of counsel: People v. Anonymous 262 AD2d 717; People v. Santiago 227 AD2d 657.
The Court has considered all of Defendant's various allegations and finds them to be without merit. The motion is denied, CPL 440.10(2).*fn20
Respondent contends Church's first ground is procedurally barred. 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."*fn21 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn22 Under Second Circuit law, to constitute an adequate and independent state law ground it must be consistently applied,*fn23 and expressly relied upon.*fn24 N.Y. Criminal Procedure Law § 440.10(2) is an adequate and independent state ground consistently applied.*fn25
Even if the court were to reach the merits, Church 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.*fn26 In so doing, because it is not clear that it did not so do, this Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn27 This Court also gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn28
Church faces a high hurdle in seeking to overturn a guilty plea on collateral review. As the Supreme Court held in Mabry:*fn29
It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we stated the applicable standard:
[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).*fn30
Twenty years later the Supreme Court explained in Iowa v. Tovar:*fn31
This Court recently explained, in reversing a lower court determination that a guilty plea was not voluntary: "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances--even though the defendant may not know the specific detailed consequences of invoking it." United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (emphasis in original). We similarly observed in Patterson: "If [the defendant] . . . lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the State's showing that the information it provided to him satisfied the constitutional minimum." 487 U.S., at 294, 108 S.Ct. 2389 (internal quotation marks omitted).*fn32
Although the alleged ineffective assistance of counsel occurred prior to the entry of Church's guilty plea, review of this claim is not foreclosed. The Supreme Court has directly addressed this subject, stating:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the ...