The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Mark T. Thomson, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Thomson is currently in the custody of the New York State Department of Correctional Services, incarcerated at the Auburn Correctional Facility. Respondent has answered, and Thomson has replied
I. BACKGROUND/PRIOR PROCEEDINGS
Thomson was initially convicted in the Albany County Court on a guilty plea of one count of Attempted Murder in the Second Degree and sentenced to an indeterminate prison term of 121/2 years to life. That conviction was reversed on appeal. On remand, in November 2002, Thomson was convicted in the Albany County Court in a non-jury trial of one count of Attempted Murder in the First Degree (N.Y. Penal Law §§ 110.00/125.27(a)(i)), four counts of Attempted Assault in the First Degree (N.Y. Penal Law §§ 110.00/120.10), and one count of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25). The trial court Petitioner,sentenced Thomson to an indeterminate prison term of 16 years to life on the attempted murder count, indeterminate prison terms of 5 to 10 years on each of the 4 attempted assault counts, and an indeterminate prison term of 2 to 6 years on the reckless endangerment count. All sentences to run concurrently. The trial court also imposed 5 years of postrelease supervision. Thomson timely appealed his conviction and sentence to the Appellate Division, Third Department. The Appellate Division affirmed his conviction and sentence, and the New York Court of Appeals denied leave to appeal on March 31, 2005.*fn2
On November 25, 2005, Thomson filed a motion to vacate his conviction
under N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion") in
the Albany County Court, which denied the motion in an unpublished,
reasoned decision. The Appellate Division, Third Department, affirmed
the denial of Thomson's CPL § 440.10 motion, and the New York Court of
Appeals denied leave to appeal on January 31, 2008.*fn3
On June 17, 2008, Thomson filed a second CPL 440.10 motion in
the Albany County Court, which denied the motion on procedural grounds
in an unreported, reasoned decision, and the Appellate Division, Third
Department, denied leave to appeal on October 21, 2008. Thomson timely
filed his Petition for relief in this Court on October 31,
The facts underlying Thomson's conviction are well known to the parties and are not directly relevant to the issues raised by Thomson in his Petition. Consequently, in the interest of brevity, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Petition Thomson contends that he was denied the effective assistance of trial counsel on two grounds: (1) failure to adequately research and ascertain whether Thomson's prior New Jersey conviction constituted a prior felony conviction under New York law; and (2) failure to inform Thomson of his maximum sentencing exposure prior to Thomson's rejection of a proffered plea agreement. Respondent contends that Thomson's second ground is procedurally barred. Respondent raises 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 a 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.
Thomson raised the issue of ineffective assistance of counsel based upon the failure of trial counsel to properly inform Thomson of his maximum sentencing exposure prior to Thomson's rejection of a proffered plea agreement in his second CPL § 440.10 motion. The ...