The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Mark Swail ("Swail" or "petitioner"), by a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenges the constitutionality of his state-custody as a result of a judgment of conviction entered in Monroe County Court on June 27, 2002. The proof at trial showed that petitioner, carrying a shotgun, appeared at the home of his estranged wife, despite the fact that there was an order of protection enjoining him from coming to her house. Mrs. Swail testified that her husband threatened her and when she refused to let him in, he broke into the house. Responding to Mrs. Swail's 911 call, police arrived at her residence, where they arrested petitioner and seized the loaded and operable shotgun which he had brandished against his wife. See T.214-234, 252-256, 305-316, 354. The jury returned a verdict convicting Swail of Criminal Trespass, for which he received one year in jail; of Burglary in the First Degree, for which he received a five-year sentence to run concurrently with the Criminal Trespass sentence; and Criminal Contempt, for which he received another concurrent sentence of one year.
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
In support of his petition, Swail contends that (1) the evidence supporting the conviction for burglary was legally insufficient and violated his right to due process (Grounds One and Three of the Petition); (2) the trial court erroneously responded to the jury's question regarding "intent" as an element of burglary; (3) he may have been convicted of "unindicted crimes" as a result of an erroneous jury instruction; and (4) his trial counsel provided ineffective assistance.
Respondent answered the petition, interposing the defense of procedural default and non-exhaustion. Respondent also argues that, notwithstanding the procedural hurdles faced by petitioner, none of his claims warrant habeas relief.
For the reasons that follow, the request for a petition of habeas corpus is denied, and the petition is dismissed.
A. General Legal Principles
A procedural default generally bars a federal court from reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Thus, federal habeas review is prohibited if a state court rests its judgment on a state law ground that is "independent of the federal question and adequate to support the judgment." Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A state procedural bar qualifies as an "independent and adequate" state law ground if "the last state court rendering a judgment in the case clearly and expressly stated that its judgment rest[ed] on a state procedural bar." Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 125 (2d Cir.1995) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990). Thus, "federal habeas review is precluded 'as long as the state court explicitly invoke[d] a state procedural bar rule as a separate basis for decision.'" Id. (quoting Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)). A state procedural bar will generally be adequate to preclude habeas review if it is "firmly established and regularly followed." Lee v. Kenna, 534 U.S. 362, 376 (2002) (quotation omitted)).
A habeas petitioner can overcome a procedural bar if he can show both "'cause' for noncompliance with the state rule and 'actual prejudice resulting from the alleged constitutional violation.'" Smith v. Murray, 477 U.S. 527, 533 (1986) (quoting Wainwright v. Sykes, 433 U.S. at 84); see also Murray v. Carrier, 477 U.S. 478, 485 (1986); accord, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir.2001). The Supreme Court has described "actual prejudice" as occurring when, for example, the petitioner shows "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). A habeas petitioner establishes "cause" if he can show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. at 496. An example of cause for default is a "showing that the factual or legal basis for a claim was not reasonably available" at the time preservation was required. Id.; see also Reed v. Ross, 468 U.S. 1, 15-16 (1984) ("Counsel's failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State's procedural bar."); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994). Ineffective assistance of counsel may constitute cause for a petitioner's failure to pursue a constitutional claim, e.g., Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000), but in order to constitute cause, counsel's ineffectiveness must itself rise to the level of a constitutional violation, id. (stating that "ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim" (emphasis in original)).
An alternative manner of overcoming a procedural default is for petitioner to show "failure to consider [the claim] . . . will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. However, this exception is limited to the "extraordinary" case where a constitutional violation has probably resulted in the ...