The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Clay Parker, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. Parker is currently in the custody of the New York Department of Correctional Services, incarcerated at the Attica Correctional Facility. Respondent has answered, and Parker has replied.
I. PRIOR PROCEEDINGS/BACKGROUND
Following a jury trial, Parker was convicted in the Albany County Court of second-degree murder (N.Y. Penal Law § 125.25(2)).*fn2 The Albany County Court sentenced Parker to an indeterminate prison term of 25 years to life. Parker timely appealed his conviction to the New York Appellate Division, which affirmed. The New York Court of Appeals granted leave to appeal and affirmed the decision of the Appellate Division on December 14, 2006.*fn3 Parker timely filed his Petition for relief in this Court on March 26, 2007.
The facts underlying Parker's conviction, as recited by the Appellate Division, are:
The evidence at trial established that [Parker] FN3 fired but a single shot across the street where several other people besides the victim were present after a night of drinking alcohol and smoking marihuana (see People v. Fenner, 61 N.Y.2d 971, 475 N.Y.S.2d 276, 463 N.E.2d 617 ; People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497  ). Just minutes earlier, [Parker] and his companions had stolen two separate vehicles outside a nearby pizza shop, one of which belonged to the victim. Upon locating these vehicles outside the apartment of [Parker's] friend, the victim punched another of [Parker's] friends in the face, knocking him to the ground. It was then that the single shot was fired.FN4
FN3. Notably, not one witness identified [Parker] as the person who fired the shot that morning and no witness, including the victim's friend and girlfriend who were present when the shot was fired, even knew that he was fatally injured until the next morning. [Parker] testified on his own behalf and denied that he was the shooter. The jury's acquittal on the intentional murder count and guilty verdict on the depraved indifference count signifies its conclusion that the evidence nevertheless established [Parker] as the shooter that morning but left a reasonable doubt as to whether he acted with the intent to kill the victim.
FN4. The victim ran away and was later discovered lying face down in a snowbank, moving and attempting to speak. He ultimately died from massive blood loss. The pathologist who conducted the autopsy testified that the victim's injury was of the type that could be treated and was not necessarily fatal.
The distance between [Parker], who was a novice user of the subject rifle, and the people across the street was hardly close. All of the witnesses testified that the "shooter" (see n. 3, supra ) was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of [Parker's] own friends were located across the street from this residence near the victim's parked car. Another of [Parker's] friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as "a blizzard."*fn4
II. GROUNDS RAISED/DEFENSES
Parker raises three grounds for relief: (1) the evidence was insufficient to support a finding that he acted with depraved indifference; (2) the finding that he acted with depraved indifference was against the weight of the evidence; and (3) if trial counsel did not preserve the sufficiency of the evidence argument, trial counsel was ineffective. Respondent contends that Parker's first ground is procedurally barred. Respondent raises no other affirmative defense.*fn5
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."*fn6 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."*fn7 The holding must also be intended to 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.*fn8 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.'"*fn9 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.*fn10 The Supreme Court has made clear that the objectively-unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn11 "[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.'"*fn12 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.*fn13 Parker "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn14
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 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.*fn16 Although pre-AEDPA precedent established that deference is due to findings of state appellate courts,*fn17 the Second Circuit has left the question open with respect to AEDPA cases.*fn18 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no ...