The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Imhotep H'Shaka, formerly known as Corey Heath, a state prisoner proceeding pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. H'Shaka is currently in the custody of the New York Department of Corrections, incarcerated at the Upstate Correctional Facility. Respondent has filed an answer. H'Shaka has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial H'Shaka was convicted in the Greene County Court of Promoting Prison Contraband in the First Degree (N.Y. Penal Law § 205.25). The first jury acquitted H'Shaka of three assault counts and deadlocked on a fourth. Upon retrial, the jury convicted H'Shaka on the deadlocked assault count, Assault in the First Degree (N.Y. Penal Law § 120.10). H'Shaka was sentenced to an indeterminate prison term of three and one-half to seven years on the promoting contraband charge and a determinate term of 15 years on the assault conviction, to be served concurrently. H'Shaka timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction on the assault charge, reversed his conviction on the contraband charge and remanded for a retrial on that charge. The New York Court of Appeals denied leave to appeal on February 28, 2006.*fn2 The Greene County Court dismissed the prison contraband charge on the basis of a speedy trial violation. H'Shaka then filed a motion to set aside his conviction under N.Y. Criminal Procedure Law § 440.10 in the Greene County Court, which denied the motion in a written decision.*fn3 The Appellate Division, Third Department, denied leave to appeal,*fn4 and the New York Court of Appeals dismissed H'Shaka's application for leave to appeal to that court on October 3, 2007, as unappealable.*fn5 H'Shaka timely filed his petition for relief in this Court on October 17, 2007, and his amended petition on December 17, 2007.
While H'Shaka was serving a prison sentence in Coxsackie Correctional Facility in Greene County, an incident occurred wherein two correction officers were injured. H'Shaka did not dispute that he slashed one of these correction officers with a razor blade. He claimed, however, that he was acting in self-defense. As a result of this incident, a prison disciplinary proceeding ensued that ultimately resulted in his confinement to the Special Housing Unit ("SHU") for 10 years.*fn6 It was this incident that gave rise to the conviction at issue in these proceedings.
II. GROUNDS PRESENTED/DEFENSES
In his amended petition H'Shaka raises six grounds: (1) his conviction violated the Double Jeopardy Clause; (2) the trial court improperly denied his for cause challenges to four jurors; (3) ineffective assistance of counsel; (4) trial court prevented him from presenting a state of mind defense; (5) the trial court improperly charged the jury with a duty to retreat instruction; and (6) by failing to re-prosecute him on the remanded prison contraband charge, the People created a repugnance in the assault conviction. Respondent has asserted no 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 jury's verdict.*fn14 H'Shaka "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
H'Shaka has not filed a Traverse. 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.
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 as true Respondent's allegations.*fn21
Ground 1: Double Jeopardy
H'Shaka contends that by convicting him of the assault charge when he had already been punished through the prison disciplinary proceeding for the same conduct violated the Double Jeopardy Clause. H'Shaka presented this issue on his direct appeal. In rejecting H'Shaka'a argument, the Appellate Division held:
The criminal prosecution of defendant for his conduct that day, despite the disciplinary sanction for the same conduct, does not violate the Double Jeopardy Clause of either the N.Y. or U.S. Constitution. Although the administrative penalty was indeed severe, we are unpersuaded that this is one of those rare circumstances where the disciplinary sentence was so harsh and extreme as to invoke double jeopardy protection.*fn22
The Second Circuit has held that, because New York prison disciplinary proceedings are civil in nature, the Double Jeopardy Clause is not implicated when a prisoner is subjected to both disciplinary sanctions and a criminal conviction arising out of the same conduct.*fn23 Thus, this Court cannot say that the decision of the Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn24 Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of the H'Shaka's case within the scope of Andrade-Williams-Schriro; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. H'Shaka is not entitled to relief under his first ground.
Ground 2: Denial of For Cause Challenges to Jurors
H'Shaka contends that in the second trial the trial court violated his right to an impartial jury under the Sixth Amendment by denying his for cause challenge: (1) of one juror who stated in voir dire that he would tend to believe the testimony of the correctional officers over that of a prison inmate; and (2) to three jurors who stated during voir dire that they would reject H'Shaka's self-defense claim. H'Shaka claims that, as a result, he was forced to exhaust his peremptory challenges prior to completion of jury selection. H'Shaka raised this claim in his direct appeal. The Appellate Division did not address this claim, directly or indirectly.*fn25
The Supreme Court has, however, directly addressed this issue.
Petitioner was undoubtedly required to exercise a peremptory challenge to cure the trial court's error. But we reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury.
We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. We conclude that no violation of petitioner's right to an impartial jury occurred.
. . . Petitioner also argues that the trial court's failure to remove Huling for cause violated his Fourteenth Amendment right to due process by arbitrarily depriving him of the full complement of nine peremptory challenges allowed under Oklahoma law. We disagree. It is true that we have previously stated that the right to exercise peremptory challenges is "'one of the most important of the rights secured to the accused.'" Indeed, the Swain Court cited a number of federal cases and observed: "The denial or impairment of the right is reversible error without a showing of prejudice." But even assuming that the Constitution were to impose this same rule in state criminal proceedings, petitioner's due process challenge would nonetheless fail. Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the "right" to peremptory challenges is "denied or impaired" only if the defendant does not receive that which state law provides.*fn26
H'Shaka has not argued before this Court that the jury before which he was tried in his second trial was not impartial. Nor did he present that argument to the Appellate Division. On direct appeal, H'Shaka's argument was that under the facts and New York law he was entitled to a reversal without showing the jury was not impartial.*fn27 Whatever the merits of H'Shaka's arguments under New York law may be, by failing to present any evidence or argument that the jury that convicted him was not impartial, H'Shaka has failed to present a federal constitutional argument cognizable by this Court in a federal habeas proceeding. H'Shaka is not entitled to relief under his second ground.
Ground 3: Ineffective Assistance of Counsel
H'Shaka argues that by referring to the fact that at the time he committed the alleged crime he was serving a sentence for second-degree murder and by eliciting the same testimony from H'Shaka during direct examination, trial counsel was ineffective. H'Shaka's principal basis for his contention is that the trial court issued a pretrial order precluding the prosecution from eliciting that information. The Appellate Division rejected H'Shaka's argument, simply stating without explanation, elaboration or citation: "[we] are unpersuaded that he received ineffective assistance of counsel at the second trial."*fn28
Under Strickland,*fn29 to demonstrate ineffective assistance of counsel, H'Shaka must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn30 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn31 H'Shaka must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn32 Strickland and its progeny do not mandate this Court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn33
Indeed, the Supreme Court admonished in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.*fn34
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn35
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn36
While judicial inquiry into counsel's performance under Strickland must be highly deferential, it is "by no means insurmountable," but nonetheless remains "highly demanding."*fn37
"Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the ...