The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Wallace Drake, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Drake is currently in the custody of the New York Department of Correctional Services, incarcerated at the Great Meadow Correctional Facility. Respondent has answered, and Drake has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a trial by jury, Drake was convicted in the Onondaga County Court of one count of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.05/125.25), one count of Assault in the First Degree (N.Y. Penal Law § 120.10), and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03). The Onondaga County Court sentenced Drake, as a predicate felony offender, to concurrent prison sentences of 25 years for the attempted murder count, 25 years for the assault count, and 15 years for the weapon count, with five years of post-release supervision. After the verdict and prior to sentencing, Drake, represented by counsel, filed a motion to set aside the verdict under N.Y. Criminal Procedure Law § 330.30 in the Onondaga County Court. The Onondaga County Court denied the motion immediately prior to imposing sentence.*fn2 Drake timely appealed his conviction and sentence to the Appellate Division, Fourth Department, which affirmed, and the New York Court of Appeals denied leave to appeal on July 22, 2005.*fn3 After the Appellate Division rendered its decision on the direct appeal, and while the petition for leave to appeal was pending before the New York Court of Appeals, Drake, appearing pro se, filed a motion in the Onondaga County Court under N.Y. Criminal Procedure Law § 440.10(g) to vacate the judgment. The Onondaga County denied the motion in an unpublished, reasoned decision,*fn4 and the Appellate Division denied leave to appeal on May 9, 2007.*fn5 Drake timely filed his petition in this Court on July 10, 2007.
In his petition Drake raises seven grounds: (1) The verdict was against the weight of the evidence; (2) ineffective assistance of counsel (no reasons or facts specified); (3) denial of due process for failure to hold a proper Sirois hearing;*fn6 (4) denied the right to have counsel of own choosing; (5) ineffective assistance of counsel for failure to properly investigate and prepare for trial; (6) ineffective assistance of counsel by reason of counsel's lack of mental competency; and (7) the Adair affidavit creates an issue as to the validity of the conviction. Respondent contends that Drake's first ground is unexhausted and procedurally barred, and that his fourth and sixth grounds are procedurally barred under adequate and independent state grounds. Respondent raises no other affirmative defense.*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 jury's verdict.*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 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.*fn18 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.*fn19 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.*fn20
For the purpose of discussing Drake's grounds, this Court has divided them into two groups. In the first group are the three grounds that do not allege ineffective assistance of counsel--the first, third and seventh grounds. The second group includes the four grounds that relate to Drake's representation by counsel--the second, fourth, fifth, and sixth grounds.
A. Group One: First, Third and Seventh Grounds.
Ground 1: Verdict Against Weight of the Evidence.
In his petition, Drake offers no evidentiary basis or argument for his conclusory statement that the verdict was against the weight of the evidence. In his brief filed in the Appellate Division, Drake pointed to numerous inconsistencies in the testimony given at trial and then argued in summation:
Based upon these discrepancies, and the obvious differences in what people saw, or testified to what they saw, and their relative abilities under the circumstances to observe and recall, weighing the conflicting inferences, a different verdict may have been possible. Therefore the verdict was against the weight of the evidence and the judgment should be reversed and the indictment dismissed.*fn21
The Appellate Division rejected Drake's argument without explanation or elaboration, simply holding:
We reject defendant's contention that the verdict is against the weight of the evidence. There is no indication in the record before us that the jury failed to give the evidence the weight it should be accorded.
In his traverse, Drake advances a considerably different argument. For the first time, Drake contends that the evidence failed to establish a necessary element of the crimes, i.e., that he had the intent to cause the death of the victim. This Court does not ordinarily consider issues 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...."*fn22 To the extent that Drake wishes to assert a new factual basis for his petition, the proper procedure would be to file a motion to amend the petition under Federal Rule of Civil Procedure 15. In this case, however, as discussed below, such a motion would be futile.
Respondent contends that Drake is procedurally barred from litigating this claim on the merits in federal habeas proceedings. This Court agrees. Although the issue was properly raised before the Appellate Division in Appellant's Opening Brief, in his petition for review to the New York Court of Appeals Drake listed only the ineffective assistance of counsel claim contained in the Appellant's Brief and the three claims presented in Appellant's Pro Se Supplemental Brief. Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed, or no arguments are made in detail and the application simply requests review of all issues outlined in the brief.*fn23
When the application for leave to appeal refers to specific claims raised before the Appellate Division but omits mention of others, the unmentioned claims are deemed abandoned.*fn24 The application for leave to appeal filed with the New York Court of Appeals in this case falls within the second category. Consequently, Drake forfeited his weight of the evidence claim in the state and is barred from litigating that claim in this Court in these proceedings.*fn25
Even if this Court were to reach the merits, Drake would not prevail. Under Jackson,*fn26 the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."*fn27 This Court must, therefore, determine whether the assumed decision of the Appellate Division on the merits unreasonably applied Jackson.
Drake's argument focuses on inconsistencies in the testimonial evidence. Drake misperceives the role of a federal court in a habeas proceeding challenging a state-court conviction. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn28 Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its inquiry by reference to the elements of the crime as set forth in state law.*fn29 This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Under Jackson, the role of this Court is to simply determine whether there is any evidence, if accepted as credible by the jury, sufficient to sustain a conviction of the crime charged as prescribed by state law.*fn30 That such evidence exists is clearly established by the record in this case. The trial court noted the proof included "very, very solid eyewitness testimony by two individuals who watched [Drake] shoot Mr. Gist."*fn31 One, who knew Drake, witnessed the crime from across the street and identified Drake in court as the person who shot the victim.*fn32 Another, who witnessed the crime from about 50 feet away, testified that Drake was the shooter*fn33 and identified Drake in court as having said on the day before this shooting that he was going to get a person who had robbed him.*fn34 While in jail, Drake admitted his crimes to a fellow inmate.*fn35
The victim, Kain Gist, testifying for the defense, testified that he was not shot by Drake but rather had been shot by someone who was from out of town.*fn36 In his statement to a police officer made in the ambulance shortly after he was shot, Gist stated that a person named Drake had shot him,*fn37 a statement Gist admitted making.*fn38 On cross-examination by the prosecutor, Gist also acknowledged that he identified Drake as the shooter from a photo array and gave a statement under penalty of perjury identifying Drake as the shooter ...