The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Dashawn Carter, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. Carter is currently in the custody of the New York Department of Correctional Services, incarcerated at the Five Points Correctional Center. Respondent has answered, and Carter has replied.
I. PRIOR PROCEEDINGS/BACKGROUND
Following a trial by jury, Carter was convicted in the Albany County Supreme Court of Murder in the Second Degree (N.Y. Penal Law § 125.25(2)) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)).*fn1 The Albany County Court sentenced Carter to an indeterminate prison term of 25 years to life on the murder count and a determinate term of 15 years on the weapon-possession charge, to be served concurrently. Carter timely appealed 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 August 16, 2007.*fn2 Carter timely filed his Petition for relief in this Court on September 12, 2007.
The basic facts underlying Carter's conviction, as recited by the Appellate Division, are:
After many hours of drinking at the Twilight Lounge in the City of Albany, [Carter] had words with Courtney Young about [Carter's] repeated attempts to talk to and buy drinks for Young's female companions. The bartender had [Carter] escorted out, but when the bar closed a short time later [Carter] was standing outside. As Young and his companions left the bar, [Carter] pulled a gun from his waist and began shooting. Several bullets struck Young, resulting in his death.*fn3
II. GROUNDS RAISED/DEFENSES
Carter raises five grounds for relief: (1) the evidence was legally insufficient to support a finding of depraved indifference; (2) the finding that he acted with depraved indifference was against the weight of the evidence; (3) the trial court erred by refusing to instruct the jury on intoxication; (4) the prosecution improperly elicited testimony concerning Carter's prior criminal history; and (5) he received ineffective assistance of counsel. Respondent contends that Carter's first and third grounds are procedurally barred and that the fourth ground is partially procedurally barred. Respondent asserts no other affirmative defense.*fn4
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."*fn5 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."*fn6 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.*fn7 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.'"*fn8 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.*fn9 The Supreme Court has made it clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn10 "[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.'"*fn11 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn13
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn14 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.*fn15 Although pre-AEDPA precedent established that deference is due findings of state appellate courts,*fn16 the Second Circuit has left the question open with respect to AEDPA cases.*fn17 In the absence of 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 Appellate Division declined to address several of Carter's claims as unpreserved for appellate review because they were not properly raised before the trial court, holding:
Several of [Carter's] contentions are unpreserved for appellate review because he failed to properly raise them before Supreme Court (see CPL 470.05 ). [Carter] did not object to the court's refusal to give an intoxication instruction related to the depraved indifference count, and in fact acknowledged that this refusal was required by the state of the law at the time. He also failed to object to testimony by the People's fingerprint expert that [Carter's] fingerprints were already in the criminal justice database. [Carter's] general motions to dismiss upon the close of the People's proof and again at the conclusion of all proof were insufficient to preserve the specific claim that the evidence supported only an intentional killing and not depraved indifference murder; preservation requires a detailed motion addressing the specific deficiencies in the evidence (see People v. Craft, 36 A.D.3d 1145, 1146, 827 N.Y.S.2d 376 ; People v. Parker, 29 A.D.3d 1161, 1162 n. 1, 814 N.Y.S.2d 818 , affd. 7 N.Y.3d 907, 827 N.Y.S.2d 679, 860 N.E.2d 980 ; see also People v. Riddick, 34 A.D.3d 923, 924-925, 823 N.Y.S.2d 594  ). We decline to exercise our interest of justice jurisdiction to reach these issues (see CPL 470.15, [a] ).*fn18
Respondent contends that Carter's claims that the evidence was legally insufficient (Ground 1), it was error to fail to instruct on intoxication (Ground 3), and the testimony of a fingerprint expert that Carter's fingerprints were already in the criminal justice system was improper (part of Ground 4), are procedurally barred. This Court agrees.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn19 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn20 New York's contemporaneous objection rule to preserve appellate review, New York Criminal Procedure Law § 470.05, is an adequate and independent state procedural rule precluding review.*fn21 Unpreserved for review is also firmly established and regularly followed by the New York courts.*fn22 In his traverse, Carter argues that where, as here, the state court also rules on the merits, this Court must also rule on the merits.*fn23
Carter is mistaken. Under controlling Second Circuit law, "[e]ven where the state court has ruled on the merits of a federal claim, 'in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default."*fn24
To avoid a procedural bar, Carter must demonstrate either cause for the default and actual prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice.*fn25 To prove a fundamental miscarriage of justice, Carter must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn26 Although, at the gateway stage, Carter need not establish his innocence as an "absolute certainty," ...