The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Edward C. Baker, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. 2254. Baker is currently in the custody of the New York Department of Correctional Services, incarcerated at the Five Points Correctional Center. Respondent has answered the Petition, and Baker has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Baker initially pleaded guilty in the Clinton County Court to attempted murder in the second degree and was sentenced to 15 years in prison under a plea agreement. All other charges were dismissed. Baker successfully appealed to the Appellate Division, Third Department, and the case was remanded to the County Court.*fn1 Following a Huntley hearing,*fn2 the Clinton County Court denied Baker's motion to suppress various oral statements he made to police following his arrest. The case then proceeded to trial before a jury.
Following the jury trial, Baker was convicted of one count each of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25), Assault in the First Degree (N.Y. Penal Law § 120.10), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02), Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01), and Menacing in the Second Degree (N.Y. Penal Law § 120.14).*fn3 Prior to sentencing, Baker, appearing through counsel, filed two motions under N.Y. Criminal Procedure Law § 330.30 to set aside the verdict in the Clinton County Court. The Clinton County Court consolidated the two motions and denied them in a reasoned decision.*fn4 The Clinton County Court then sentenced Baker, as a second felony offender, to a determinate prison term of 18 years, plus five years of post-release supervision, on the attempted murder and assault counts, an indeterminate prison term of two to four years on the third-degree weapon possession count, and one year each on the fourth-degree weapon possession and menacing counts. All sentences were ordered to run concurrently.
Baker timely appealed his conviction and sentence to the Appellate Division, Third Department. While his appeal was pending, Baker, appearing pro se, filed a motion to set aside his conviction and/or set aside his sentence under N.Y. Criminal Procedure Law §§ 440.10 and 440.20 in the Clinton County Court, which denied his motion in a reasoned decision.*fn5 The Appellate Division granted leave to appeal denial of the §§ 440.10/440.20 motion and consolidated it with the direct appeal. The Appellate Division affirmed both the conviction and sentence as well as the denial of the §§ 440.10/440.20 motion in a reasoned decision, and the New York Court of Appeals denied leave on July 13, 2006.*fn6
On February 15, 2007, Baker, proceeding pro se, filed a second motion under § 410.10 to vacate his conviction in the Clinton County Court, which denied his motion in a reasoned decision on June 29, 2007.*fn7 The Appellate Division, Third Department, denied leave to appeal on August 28, 2007,*fn8 and the New York Court of Appeals dismissed Baker's application to appeal as not appealable on October 2, 2007.*fn9 Baker timely filed his petition for relief in this Court on October 31, 2007.
II. GROUNDS RAISED/DEFENSES
In his petition Baker raises a total of 29 grounds:*fn10 (1) the burglary charge should have been dismissed (improper indictment); (2) the trial court erred in allowing into evidence an answering machine recording; (3) statements made to police should have been suppressed under Miranda;*fn11 (4) insufficiency of the evidence to support conviction of attempted murder and assault; (5) jury misconduct (improper test of shotgun during jury deliberations); (6) failure of trial court to sua sponte instruct jury on intoxication; (7) failure of the trial court to instruct the jury on lesser-included offense of second-degree assault; (8) the trial judge was vindictive in imposing a harsh and excessive sentence after trial; (9) improper treatment as a second-felony offender; (10) the trial court should have accepted second plea offer; (11) the trial court erred by not holding an evidentiary hearing on the rejection of the second plea offer; (12) the trial court erroneously considered second felony offender status; (13) the sentence was vindictive; (14) the restitution order was improper and illegal; (15) the trial court erred by not granting a new trial on jury misconduct charge; (D-1) improper indictment on burglary charge; (D-2) judicial misconduct (trial judge "lied"); (D-3) denial by the trial court of second plea agreement; (D-4) improper grand jury instructions; (D-5) duplicious (sic) and multiplicatious (sic) counts (burglary charges); (D-6) prosecutorial misconduct (subpoena and use of private medical records in cross-examination of Baker, illegal indictment, allowance of perjured testimony, and improper use of an exhibit (shotgun) and various misstatements in closing summation); (D-7) Rosario/Brady violation*fn12 (failure to turnover Baker's medical records or notify defense they were to be used in trial); (D-8) the trial court failed to give instruction on extreme emotional disturbance; (D-9) malicious prosecution (improper indictment on burglary charges, trial judge lied about grand jury minutes, was rude to defense counsel and prevented defense); (D-10) jury misconduct (test of shotgun during deliberations and compromise verdict); (D-11) use of perjured testimony (several prosecution witnesses committed perjury); (D-12) judicial misconduct (allowed trial on unfounded charges and lied about review of grand jury minutes); (D-13) failure to bring up use of medical records at Sandoval hearing;*fn13 and (D-14) ineffective trial counsel (unprepared for trial, failure to interview friendly witnesses, failure to challenge indictment, failure to cross-examine ex-spouse on inconsistencies between testimony and statement to police, failure to use intoxication/mental health as defenses). Respondent contends every claim, except those set forth in Grounds D-1 and D-5, is procedurally barred, and every claim, except those set forth in Grounds 3, D-5, D-9, and D-12, is unexhausted. Respondent raises no other affirmative defense.*fn14
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."*fn15 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."*fn16 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.*fn17 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.'"*fn18 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.*fn19 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.*fn20 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.*fn21 Baker "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn22
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn23 In addition, the state court's findings of fact are presumed to be correct unless Baker rebuts this presumption by clear and convincing evidence.*fn24 Although the Second Circuit has left the question open,*fn25 pre-AEDPA precedent established that deference is due findings of state appellate courts.*fn26 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.
Due to the number of grounds asserted and the differences among the various procedures under which those grounds were presented to the state courts, this Court is dividing its discussion into segments. First, this Court will address the two defenses raised by the Respondent: procedural default and exhaustion. Then, this Court will discuss on the merits those claims that are not procedurally barred or unexhausted. To minimize repetition, grounds discussed will be grouped first in order of the state court proceeding in which they were presented to the state courts and whether they were disposed of on the merits or upon state procedural grounds. This will permit this Court to determine which grounds are procedurally barred or unexhausted. Claims discussed on the merits that fall within the same category will be grouped together.
Under the adequate-and-independent-state-ground doctrine, federal courts may not review the 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."*fn27 Because this doctrine applies on federal habeas review and because the state-law ground may be a procedural bar,*fn28 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."*fn29 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.*fn30 This rule even applies where the state court has ruled on the merits in the alternative.*fn31 Finally, "[s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."*fn32 Accordingly, a procedural bar will be deemed "adequate" only if it is based on a rule that is "firmly established and regularly followed" by the state in question.*fn33
To classify the decision as either fairly appearing to rest primarily on or interwoven with federal law, or as resting primarily on state procedural law, this Court looks to three factors: (1) the face of the state court opinion; (2) whether the state court was aware of a procedural bar; and (3) the practice of state courts in similar circumstances.*fn34
First §§ 440.10/440.20 Motion. In his first motion under §§ 440.10/440.20 Baker raised the following issues: (1) improper rejection of the second plea agreement by the trial court [Grounds 10, 11, D-3]; (2) failure to properly instruct on handling of exhibits and improper handling of shotgun by the jury [Grounds 5, 15]; (3) improper consideration of predicate prior felony [Grounds 9, 12]; (4) vindictive sentencing [Ground 8]; and (5) improper restitution order [Ground 14]. The Clinton County Court denied the motion on the fourth issue [vindictive sentence, Ground 8] and fifth issue [improper restitution, Ground 14] on the merits. The remaining issues were rejected on procedural grounds, i.e., that they could have been raised on direct appeal, citing N.Y. Criminal Procedure Law § 440.10(c).*fn35 New York Criminal Procedure Law § 440.10(c) is an adequate independent state ground.*fn36
Appeal of First §§ 440.10/440.20 Motion. In his appeal to the Appellate Division, Baker raised the same issues he raised in the Clinton County Court. The Appellate Division did not discuss any of these issues. Instead, the Appellate Division disposed of them in its catch-all "[w]e have reviewed all remaining contentions and find them without merit."*fn37
Direct Appeal. In his direct appeal to the Appellate Division, Baker raised 11 issues: (1) burglary counts should have been dismissed [Grounds 1, D-1, D-5]; (2) the trial court erred in allowing the answering machine tape into evidence [Ground 2]; (3) Baker's oral statements should have been suppressed [Ground 3]; (4) insufficiency of the evidence [Ground 4]; (5) jury misconduct [Grounds15, D-10]; (6) failure to instruct on intoxication [Ground 6]; (7) failure to include lesser-included assault second instruction [Ground 7]; (8) an omnibus ground based upon (a) juror misconduct (test of shotgun) [Grounds 5, 15, D-10], (b) prosecutorial misconduct (testing of shotgun in closing summation) [Ground D-6 (partial)], (c) sentence enhancement with DWI [not raised in petition to this Court], (d) failure to dismiss burglary [Grounds 1, D-1, D-5], (e) allowance of improper cross-examination by prosecution [not raised in the petition to this Court], (f) preclusion of evidence of lack of gun powder residue on Baker or fingerprints of victim on barrel of shotgun [Ground D-9 (partial)], and error in allowing tape into evidence [Ground 2]; (9) sentence vindictive [Ground 8]; (10) re-sentence harsh and excessive [Ground 8]; and (11) improper treatment as second felony offender [Grounds 9, 12].
The Appellate Division rejected the claim that the Clinton County Court erred in not instructing the jury on intoxication [Ground 8] on the basis that the argument was unpreserved for review. The rule that a claim is unpreserved for review is firmly established and regularly followed by the New York courts.*fn38 All other grounds were decided on the merits, either specifically or in the catch-all "[w]e have reviewed all remaining contentions and find them without merit."*fn39
Request for Leave to Appeal to the Court of Appeals. In his request for leave to appeal the decision of the Appellate Division to the New York Court of Appeals, Baker raised the following issues: (1) admission of the answering machine tape [Ground 2]; (2) suppression of the statements made to police [Ground 3]; (3) improper testing of the shotgun by a juror [Grounds 5, D-10]; (4) improper closing summation by prosecution in showing how shotgun worked [Ground D-6 (partial)]; (5) intoxication instruction [Ground 6]; (6) failure to instruct on lesser-included charge of second-degree assault [Ground 7]; (7) failure to accept second plea bargain [Grounds 10, 11, and D-3]; (8) failure to permit defense to develop lack of gunpowder residue on Baker and fingerprints on the shotgun [Ground D-9 (partial)]; and (9) that the issue of burglary should not have gone to the jury [Grounds 1, D-1, D-5].
Second § 440.10 Motion. In his second § 440.10 motion, Baker raised the following issues: (1) defects in the indictment [Grounds D-1, D-5]; (2) challenged the impartiality of the trial judge [Grounds D-2, D-9, D-12]; (3) validity of the burglary charges [Grounds 1, D-1, D-12]; (4) prosecutorial misconduct [Ground D-6]; (5) Brady/Rosario violation [Ground D-7]; (6) juror misconduct [Ground 5]; (7) use of perjured testimony [Grounds D-6 (partial); D-11]; (8) judicial misconduct [Grounds D-2, D-9]; and (9) ineffective assistance of trial counsel [Ground D-14]. In denying Baker's motion, the Clinton County Court found that the claims raised were ...