The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner James Whitmore, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Whitmore is currently in the custody of the New York Department of Correctional Services, incarcerated at the Sing Sing Correctional Facility. Respondent has answered, and Whitmore has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a trial by jury, Whitmore was convicted in the Broome County Court of one count each of Sodomy in the First Degree (N.Y. Penal Law § 250.45) and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10). The Broome County Court sentenced Whitmore to a determinate term of 18 years' imprisonment on the sodomy conviction and a concurrent one-year term on the child endangerment conviction. Whitmore timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction in a reasoned, published decision. The New York Court of Appeals denied leave to appeal on January 24, 2005, and denied reconsideration on May 17, 2005.*fn2 While his direct appeal was pending, Whitmore filed a motion to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 in the Broome County Court, which the court summarily denied. The Appellate Division granted leave to appeal, and the appeal was consolidated with his direct appeal.*fn3 Whitmore timely filed his petition for relief in this Court on April 3, 2006, and his amended petition on August 7, 2006. While this petition was pending, Whitmore filed a second motion under § 440.10 in the Broome County Court, which the Broome County Court denied. The Appellate Division, Third Department, denied leave to appeal on June 17, 2008.*fn4
The facts, as summarized by the Appellate Division: "After defendant's girlfriend reported that defendant had engaged in a sexual act with her five-year-old daughter, the police questioned defendant and obtained an oral and written statement in which he confessed to having the victim perform oral sex on him."*fn5
II. GROUNDS RAISED/DEFENSES
In his amended petition Whitmore raises four grounds: (1) a statement made by Whitmore to a case social worker was erroneously admitted; (2) the prosecution failed to turn over exculpatory material to the defense; (3) the trial court erred in granting the request of the prosecution to reopen a Huntley hearing;*fn6 and (4) statements taken by a child protective service caseworker were taken in violation of his right to counsel and without first notifying counsel. Respondent contends that Whitmore's second ground is procedurally barred and his third ground is unexhausted. Respondent raises no other affirmative defenses.*fn7
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."*fn8
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."*fn9 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.*fn10 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.'"*fn11 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.*fn12 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.*fn13 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 outcome.*fn14 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn15
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn16 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.*fn17
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.*fn18 A federal court must accept that state courts correctly applied state laws.*fn19
A petitioner may not transform a state law issue into a federal one by simply asserting a violation of due process.*fn20 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to ...