The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Raymond Clyde, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Clyde is currently in the custody of the New York Department of Correctional Services, incarcerated at the Upstate Correctional Facility. Respondent has answered, and Clyde has replied.
I. BACKGROUND/PRIOR PROCEEDINGS/JURISDICTION
A. Background/Prior Proceedings
Clyde is currently incarcerated at the Upstate Correctional Facility in accordance with a 1996 conviction of various sexual crimes for which he was sentenced to four consecutive indeterminate prison terms of 121/2 to 25 years, concurrent with five concurrent indeterminate terms of 121/2 to 25 years. Clyde's conviction and sentence, which were upheld on appeal,*fn1 are not challenged in this proceeding. While incarcerated at the Attica Correctional Facility, Clyde was convicted in a prison disciplinary proceeding involving two misbehavior reports resulting from incidents that occurred while he was incarcerated at the Auburn Correctional Facility. Under the first misbehavior report, Clyde was convicted of several rules violations:*fn2 assaulting staff (Rule 100.11), attempting to commit a sexual act (Rule 101.10), violent conduct (Rule 104.11), physical interference (Rule 107.10), being out of place (Rule 109.10), leaving an assigned area (Rule 109.11), making threats (Rule 102.10), possessing a weapon (Rule 113.10) and possessing unauthorized items (Rule 113.23). On the second misbehavior report, Clyde was convicted of assaulting staff (Rule 100.11) and being out of place (Rule 109.10). The hearing officer imposed a penalty of 12 years in the Special Housing Unit ("SHU"), with a corresponding loss of recreation, packages, commissary and phone privileges, and recommended a 12-year loss of good time credits.*fn3 The decision of the hearing officer was upheld in all respects on administrative appeal.*fn4 Clyde sought relief in the Supreme Court, Wyoming County, under N.Y. Civil Procedure Law and Rules Article 78. The Wyoming County Supreme Court transferred the matter to the Appellate Division, Fourth Department,*fn5 which summarily denied Clyde's Article 78 petition without opinion or citation to authority on March 14, 2008.*fn6 Clyde did not seek leave to appeal from the New York Court of Appeals. Clyde timely filed his petition for relief in this Court on August 22, 2008.
Although neither party has raised the issue of jurisdiction, this Court must nonetheless determine its jurisdiction and the extent to which it may grant relief.*fn7 As the Supreme Court has observed, challenges to the validity of confinement or to particulars affecting its duration are the province of habeas corpus, while requests for relief turning on the circumstances of confinement are properly part of a civil rights action under 42 U.S.C. § 1983.*fn8 In this case, to the extent that Clyde is serving his sentence in SHU, it is a condition of his imprisonment, not affecting either the validity of his conviction or the duration of his imprisonment. On the other hand, the loss of 12 years of good time credit does result in the denial of his release short of the maximum term of his confinement. Thus, to that extent, Clyde is seeking relief that is appropriate under § 2254.*fn9
Therefore, this Court has jurisdiction to entertain the petition under § 2254, but may be constrained in the relief it may grant.*fn10
II. GROUNDS RAISED/DEFENSES
Clyde raises two grounds: (1) that he was deprived of a fundamental right to prepare a defense (ineffective assistance of an employee assistant); and (2) insufficiency of the evidence to support a finding of guilt as to five of the eleven violations of which he was convicted. Respondent contends that Clyde has failed to exhaust his state court remedies and is procedurally barred from raising the grounds in a federal habeas petition. Respondent has raised no other affirmative defense.*fn11
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."*fn12 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."*fn13 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.*fn14 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.'"*fn15 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.*fn16 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.*fn17 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.*fn18 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn19
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn20 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.*fn21 If a federal claim has not been adjudicated on the merits, AEDPA deference is not required.*fn22 In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo.*fn23 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.*fn24 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.*fn25 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.*fn26
A. Exhaustion/Procedural Bar
Respondent contends that Clyde is procedurally barred from litigating this claim on the merits in federal habeas proceedings. This Court agrees. "A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it."*fn27
In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.*fn28 Clyde failed to seek leave to appeal from the New York Court of Appeals; thus, his claims are unexhausted.
Consequently, Clyde's forfeiture in the state courts bars him from litigating that claim in this Court in these proceedings.*fn29 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.*fn30 To prove a fundamental miscarriage of justice, Clyde must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn31
Clyde makes two arguments to avoid the procedural default bar. First, Clyde argues that since he exhausted his administrative remedies, in his opinion, he has satisfied the exhaustion requirement. While exhaustion of administrative remedies is a prerequisite to bringing a civil rights action under 42 U.S.C. § 1983, § 2254(b)(1) requires exhaustion of "remedies available in the courts of the state." (Emphasis added.) Second, Clyde argues that at the time he received notice of denial of his Article 78 petition he had only two weeks to file his application for leave to appeal. Clyde contends this was insufficient time. This conclusory statement, ...