The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Jason Fulton, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus relief under 28 U.S.C. § 2254. Fulton is currently in the custody of the New York Department of Correctional Services, incarcerated at the Upstate Correctional Facility. Respondent has answered, and Fulton has replied.
I. BACKGROUND PRIOR PROCEEDING
Following a jury trial in the Schenectady County Court, Fulton was convicted of Murder in the Second Degree (N.Y. Penal Law, § 125.25(2)) and Assault in the Third Degree (N.Y. Penal Law, § 120.00(2)). The Schenectady County Court sentenced Fulton to an indeterminate prison term of 22 years to life on the murder conviction and a determinate term of 1 year on the assault conviction, the sentences to be served concurrently. Fulton timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed, and the New York Court of Appeals denied leave to appeal.*fn1 Fulton timely filed a Petition for a Writ of Certiorari in the Supreme Court, which was denied on November 13, 2006.*fn2
On February 16, 2007, Fulton filed a motion in the Schenectady County Court to vacate his conviction under N.Y. Criminal Procedure Law § 440.10. The Schenectady County Court denied the motion and the Appellate Division denied leave to appeal on July 20, 2007. Fulton timely filed his Petition for relief in this Court on September 28, 2007, and his Amended Petition on November 23, 2007.
The facts underlying the conviction, as recited by the Appellate Division, are:
Evidence at trial revealed that Ricci dated [Fulton] for approximately four years and that their relationship ended shortly after a heated exchange two weeks prior to the death of the victim. During that exchange, [Fulton] threw a lamp at Ricci, grabbed her throat and threw her onto the bed. When Ricci informed [Fulton] that she no longer wanted to be in a romantic relationship with him, he told her that he might "kill somebody" that he saw with her, although she believed he was joking. On the night of the victim's death, Ricci, along with the victim and some other friends, went to a bar. [Fulton] and Mineconzo arrived there and Ricci and [Fulton] exchanged words. At one point, [Fulton] asked Ricci who the victim was. She explained that he was "just a friend." After Ricci left with the victim and went to a friend's house, [Fulton] was overheard telling people that he was going to "kill that . . . kid" and that he was going to "beat his ass."
[Fulton] arrived with Mineconzo at the house of Ricci's friend in an agitated state. After being rebuffed by an individual who answered the door, they left, only to return later. According to Mineconzo, they planned to get into a fight with whomever was in the house. Upon their return, the victim went outside with a bat in hand and Ricci followed shortly thereafter. The victim took a swing at [Fulton] with the bat and [Fulton] wrestled the bat away from him. [Fulton] then advanced toward the victim, who was retreating, and struck him in the temple. After he was knocked to the ground, [Fulton] continued to hit and kick him several more times; Mineconzo assisted in the assault. Although Ricci attempted to intervene, she was pushed to the ground by [Fulton]. The victim later died at the hospital and Ricci suffered bodily injuries.
At trial, [Fulton] testified on his own behalf.FN1 Although he admitted to the assault, he denied that he tried to kill the victim. Convicted of one count of murder in the second degree and one count of assault in the third degree, and sentenced to an aggregate prison term of 22 years to life, he appeals.*fn3
FN1. Midway through the trial, Mineconzo pleaded guilty to the crime of attempted assault in the first degree.
II. GROUNDS RAISED/DEFENSES
In his Amended Petition, Fulton raises two grounds for relief: (1) prosecutorial misconduct and (2) the evidence was insufficient to convict him of depraved indifference murder. Respondent contends the first ground is procedurally barred. Respondent asserts no other affirmative defense.*fn4 In his Traverse, Fulton withdraws his first ground, prosecutorial misconduct.
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 ...