The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Inssa Mane, a state prisoner appearing pro se, has filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Mane is currently in the custody of the New York Department of Correctional Services, incarcerated at the Upstate Correctional Facility. Respondent has answered, and Mane has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a trial by jury, Mane was convicted in the Clinton County Court of two counts of Burglary in the Second Degree (N.Y. Penal Law, § 140.25(2)), one count each of Sexual Abuse in the First Degree (N.Y. Penal Law, § 130.65(2)), Attempted Sexual Abuse in the Second Degree (N.Y. Penal Law § 110/130.65(1)), Unlawful Imprisonment in the Second Degree (N.Y. Penal Law, § 135.05)), Attempted Coercion in the Second Degree (N.Y. Penal Law, § 110/135.65(1)), Forcible Touching (N.Y. Penal Law, § 130.52), and Criminal Trespass in the Second Degree (N.Y. Penal Law, § 140.15). The Clinton County Court sentenced Mane to:
determinate prison terms of six years each on the burglary convictions and the first-degree sexual abuse conviction, to be followed by five years' supervised release; determinate terms of one year's imprisonment on the second-degree unlawful imprisonment conviction, the forcible touching conviction, and the second-degree criminal trespass conviction; and indeterminate terms of one to three years' imprisonment on the attempted first-degree sexual abuse conviction and the attempted first-degree coercion conviction. All sentences were ordered to be served concurrently.
Mane timely appealed his conviction and sentence to the Appellate Division, Third Department, which affirmed his conviction and sentence, and the New York Court of Appeals denied leave to appeal on May 30, 2007.*fn2 While his appeal was pending, Mane filed a motion to vacate the judgment under N.Y. Criminal Procedure Law, § 440.10 in the Clinton County Court.*fn3
The Clinton County Court denied the motion. After granting leave to appeal, the Appellate Division affirmed denial of the § 440.10 motion on March 13, 2008, and the New York Court of Appeals dismissed his appeal on July 8, 2008.*fn4 Mane filed his petition in this Court on November 18, 2008.
The Appellate Division briefly summarized the underlying facts as follows:
Between approximately 3:00 A.M. and 10:30 A.M. on April 4, 2004, [Mane] entered four different apartments on Brinkerhoff Street in the City of Plattsburgh, Clinton County. All of the apartments were occupied by female college students, several of whom woke to find [Mane] in their bedrooms. He touched some of them and tried to force one to perform a sexual act, but in each instance the victims were able to make [Mane] leave. Police apprehended [Mane] at around 10:45 A.M. that same day, and he was identified by two victims who were brought to the location where he was detained.*fn5
II. ISSUES RAISED/DEFENSES
Mane raises six grounds for relief: (1) speedy trial violation; (2) failure of the trial court to give an identification instruction; (3) the trial court precluded him from developing a defense; (4) the trial court erred in giving a circumstantial evidence instruction; (5) cumulative error; and (6) the trial court erred in giving circumstantial evidence and expanded intent instructions. Respondent contends that Mane's first, second, fourth, fifth and sixth grounds are unexhausted. Respondent asserts no other affirmative defense.*fn6
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."*fn7 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."*fn8 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.*fn9 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.'"*fn10 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.*fn11 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.*fn12 "[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.'"*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 proceeding is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn14 Mane "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 Although pre-AEDPA precedent established that deference is due findings of state appellate courts,*fn18 the Second Circuit has left the question open with respect to AEDPA cases.*fn19 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.
Respondent contends that all of Mane's claims, except his third ground (prevention of presenting a defense), are unexhausted. Mane does not address the exhaustion issue in his 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 ...