The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Rodney Branton, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Branton is currently in the custody of the New York State Department of Correctional Services, on supervised release. Respondent has answered, and Branton has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
A New York grand jury indicted Branton in two indictments. The first indictment charged Branton with Attempted Assault in the First Degree (N.Y. Penal Law §§ 110.00, 120.10), Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), and Making a False Written Statement (N.Y. Penal Law § 210.45). The second indictment charged Branton with Rape in the First Degree (N.Y. Penal Law § 130.35), Rape in the Second Degree (N.Y. Penal Law § 130.25), Assault in the Second Degree (N.Y. Penal Law § 120.05), Endangering the Welfare of a Child (N.Y. Penal Law § 260.10), and Criminal Possession of a Controlled Substance (N.Y. Penal Law § 220.03).
In September 2005, after entering a guilty plea during trial on the first indictment,*fn2 Branton was convicted in the Schenectady County Court of one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02) on the first indictment (as amended) and one count of Assault in the Second Degree (N.Y. Penal Law § 120.05) on the second indictment in exchange for the dismissal of all other charges. Prior to sentencing, Branton, appearing through counsel, moved the Schenectady County Court to set aside his plea. Branton's motion was denied. The Schenectady County Court then sentenced Branton to concurrent prison terms of five years followed by three years of supervised release on each count. Branton timely appealed 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 21, 2007.*fn3 While Branton's application for leave to appeal was pending before the New York Court of Appeals, Branton, appearing pro se, filed a motion to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 (CPL § 440.10 motion) in the Schenectady County Court. The Schenectady County Court denied Branton's motion partially on procedural grounds,*fn4 and partially on the merits. The Appellate Division summarily denied leave to appeal this dedcision on May 10, 2007. On July 17, 2007, Branton, appearing pro se, sought a writ of error coram nobis from the Appellate Division, Third Department, which summarily denied his application on October 3, 2007. On October 24, 2007, Branton filed a second motion for a writ of error coram nobis in the Appellate Division, Third Department, which again summarily denied Branton's application on December 5, 2007.*fn5 On December 13, 2007, Branton filed a second CPL § 440.10 motion in the Schenectady County Court. On May 12, 2008, The Schenectady County Court denied Branton's second CPL § 440.10 motion on procedural grounds.*fn6 Branton timely filed his Petition for relief in this Court on May 12, 2008.
The Appellate Division on direct review summarized the proceedings in the trial court as follows:
[Branton] was involved in an incident during which several gunshots were fired at a residence. While the indictment related to that incident was pending, he was charged with several crimes in an unrelated sexual assault upon his girlfriend. During his trial on the shooting incident, after the man that [Branton] alleged was the actual shooter indicated that if he testified he would implicate [Branton] as the shooter, defense counsel negotiated a plea agreement. Under that agreement, the People would amend the indictment to include one count of criminal possession of a weapon in the third degree and [Branton] would plead guilty to that count in exchange for a prison sentence of five years followed by a period of postrelease supervision. The agreement also resolved the sexual assault incident, with [Branton] agreeing to plead guilty to assault in the second degree after an indictment was returned on that matter, in exchange for a sentence concurrent with, and no longer than, the sentence on the weapon possession count. [Branton] pleaded guilty to each indictment as required, but prior to sentencing he moved to withdraw his guilty pleas (see CPL 220.60). County Court denied his motion and sentenced him in accordance with his pleas, resulting in this appeal.*fn7
II. ISSUES RAISED/DEFENSES
In his Petition, Branton raises four grounds: (1) ineffective assistance of trial counsel for permitting the court to amend the indictment and allowing conviction on a charge the grand jury dismissed; (2) the plea was improper and unconstitutional; (3) ineffective assistance of appellate counsel for failing to argue that trial counsel was ineffective and that the amendment to the indictment exceeded the trial court's jurisdiction; and (4) the trial court abused its discretion in denying Branton's motion to withdraw his guilty plea.*fn8 Respondent contends that, except to the extent that Branton raised his claims on direct appeal, they are unexhausted and procedurally barred. Respondent raises no other affirmative defense.*fn9
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."*fn10 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."*fn11 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.*fn12 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.'"*fn13 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.*fn14 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.*fn15 "[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.'"*fn16 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.*fn17 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn18
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn19 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.*fn20 Although pre-AEDPA precedent established that deference is due findings of state appellate courts,*fn21 the Second Circuit has left the question open with respect to AEDPA cases.*fn22 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.
A. Exhaustion/Procedural Bar
This Court may not consider claims that have not been fairly presented to the state courts.*fn23 A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the appropriate state courts.*fn24 An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used.*fn25
Exhaustion does not require that Branton have cited the "book and verse on the federal constitution."*fn26 A petitioner who does not cite "book and verse of the Constitution" may nonetheless "fairly present to the state courts the constitutional nature of his claim" through:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern ...