The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Donald Jenner, a state prisoner proceeding pro se, has petitioned for habeas corpus relief under 28 U.S.C. § 2254. Jenner is presently in the custody of the New York Department of Correctional Services, incarcerated at the Eastern New York Correctional Facility. Respondent has answered the petition. Jenner has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, Jenner was convicted in the Madison County Court of one count of Making a Terroristic Threat (N.Y. Penal Law § 490.20). The trial court sentenced Jenner as a persistent felony offender to an indeterminate prison term of 15 years to life. Jenner timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction and sentence in a reasoned decision, and the New York Court of Appeals denied leave to appeal on June 21, 2007.*fn2 On August 7, 2007, Jenner filed a motion to vacate the Petitioner, judgment and set aside the sentence under N.Y. Criminal Procedure Law §§ 440.10 and 440.30 in the Madison County Court. The Madison County Court denied the motion in a reasoned decision,*fn3 and the Appellate Division denied leave to appeal on December 31, 2007.*fn4 Jenner timely filed his petition for relief in this Court on November 4, 2007.
The facts of the crime as recited by the Appellate Division are:
[Jenner] and his girlfriend resided in the City of Syracuse, Onondaga County. Prior to their cohabitation, the girlfriend's son was removed from her care and placed in the custody of the Department of Social Services (hereinafter DSS) of Madison County. Madison DSS employee Robin Streeter was the primary caseworker assigned to the girlfriend's case. Tim Brown was Streeter's supervisor. When the girlfriend moved to Onondaga County, Michelle Moon, an employee with DSS of Onondaga County, was assigned as a secondary caseworker. The ultimate goal of DSS was reunification of the girlfriend with her son. After learning that [Jenner] had a criminal record, including a conviction for a sexual offense, Moon repeatedly advised [Jenner] and his girlfriend of DSS's policy that a child not be permitted to have any contact, other than supervised visitation, with an untreated sex offender. [Jenner] never provided DSS with proof that he had completed a sex offender treatment program. As a result, Moon told [Jenner] and his girlfriend that reunification with her son would not be possible as long as she continued to reside with [Jenner], unless he provided proof of completion of an approved treatment program.
At a May 3, 2004 unannounced home visit, Moon again informed the girlfriend of the DSS policy noted above. [Jenner], who was entering the apartment and overheard Moon, became irate. He began yelling and cursing at Moon, stating "I'm sick of Madison and Onondaga County telling me what to do." Pointing at Moon, he continued, "I'll solve this problem. I'll walk right into Madison County DSS. I'll get a gun. And I'll take care of that f* * *ing b* * * * Robin Streeter and Tim Brown once and for all, and I'm not kidding. I've got nothing . . . you think Columbine was something, I've got nothing to lose." In previous conversations, [Jenner] had told Moon that he had been diagnosed with end stage liver disease and hepatitis C and had only months to live. [Jenner] mentioned numbers and letters commonly associated with gun models, such as AK 47, stated that he was a member of a militant Native American society and said, "I can get my hands on any kind of gun that I need at any time." He also directed epithets at Streeter. Upon leaving the apartment, Moon notified Streeter of [Jenner]'s threats. Streeter notified Brown and the police.
[Jenner] attempted to call the Onondaga County District Attorney while Moon was present, but he had to leave a message. On May 4, 2004, an investigator from the District Attorney's office returned the call. [Jenner] stated that he was upset with caseworkers from Madison and Onondaga DSS, specifically identifying Streeter and Moon. He indicated that he would carry through with his intentions from the previous day, although he would not repeat those intentions over the phone.*fn5
II. GROUNDS RAISED/DEFENSES
In his petition, Jenner has raised seven grounds: (1) double jeopardy/improper venue; (2) his due process rights were violated by being physically restrained (shackled) during trial; (3) his sentence as a persistent felony offender violated Apprendi;*fn6 (4) the trial court lacked jurisdiction; (5) ineffective assistance of trial counsel; (6) the prosecutor was biased; and (7) sentence was harsh and excessive. Respondent contends the first, fourth, fifth, and sixth grounds are procedurally barred, and the sixth ground unexhausted. Respondent asserts no other affirmative defense.*fn7
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, 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 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn14 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.*fn15 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn16
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn17 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.*fn18 Although pre-AEDPA precedent established that deference was due findings of state appellate courts,*fn19 the Second Circuit has left the question open with respect to post-AEDPA cases.*fn20 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.
The discussion is divided into four parts. First, the Court will address the general effect of Jenner's failure to traverse the answer. Second, the Court will address those grounds to which the Respondent has raised the affirmative defense of procedural default-the first, fourth, fifth and sixth grounds. Third, the Court will address the exhaustion defense raised to the sixth ground. Finally, the Court will discuss on the merits those claims that are not procedurally barred or barred as unexhausted, as well as those claims to which the Respondent has not asserted an affirmative defense.
Jenner has not traversed the Respondent's answer. 28 U.S.C. § 2248 provides: The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.
Ordinarily, under § 2248, where there is no denial of the Respondent's allegations in the answer, or the denial is merely formal, unsupported by an evidentiary basis, the Court must accept Respondent's allegations.*fn21 Where there is no traverse filed and no evidence offered to contradict the allegations of the return, they must be accepted as true.*fn22
Under the adequate-and-independent-state-ground doctrine, federal courts may not review a judgment of a state court that "rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision."*fn23 Because this doctrine applies on federal habeas review and because the state-law ground may be a procedural bar,*fn24 federal habeas courts often speak of an "adequate and independent procedural bar" to federal review of a claim or simply of a "procedurally barred" federal claim. A federal habeas court lacks jurisdiction to evaluate questions of federal law decided by a state court where the state court judgment "rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn25 Where a decision "fairly appear[s] to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion," habeas courts presume that there is no adequate and independent state law ground supporting the judgment.*fn26 This rule even applies where the state court has ruled on the merits in the alternative.*fn27 Finally, ...