The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Judson Watkins, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Watkins is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Elmira Correctional Facility. Respondent has answered. Watkins has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In his first trial, Watkins was convicted by an Onondaga County Court jury of petit larceny (N.Y. Penal Law § 155.25), but the jury was unable to reach a verdict with respect to charges of Rape in the First Degree (N.Y. Penal Law § 130.35) and endangering the welfare of a child (N.Y. Penal Law § 260.10).*fn2 Upon retrial before a different jury, Bennett was convicted of the rape and child endangerment charges. In July 2002 the Onondaga County Court sentenced Watkins as a persistent felony offender to a prison term of twenty-five years to life.
The Appellate Division, Third Department, affirmed Watkins's convictions and sentence, and the New York Court of Appeals denied leave to appeal on June 30, 2005.*fn3 In February 2005, while his appeal was pending, Watkins appearing pro se filed a motion to set aside his sentence under N.Y. Criminal Procedure Law § 440.20 ("CPL § 440.20 motion") in the Onondaga County Court. The County Court denied the motion in a reasoned decision, and the Appellate Division denied leave to appeal on July 31, 2006. On August 25, 2006, Watkins filed a pro se motion to set aside the judgment and vacate the sentence under N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion) and CPL § 440.20 in the Onondaga County Court. The County Court denied the motion on procedural grounds. The Appellate Division affirmed, and the New York Court of Appeals denied leave to appeal on February 23, 2011.*fn4 Watkins timely filed his Petition for relief in the Western District on June 26, 2006, which was transferred to this Court on July 27, 2006. Watkins filed his Amended Petition with leave of court on September 7, 2006. Upon Watkins's motion, the proceeding was stayed from November 28, 2006, through August 9, 2011, to permit Watkins to exhaust his state-court remedies.
The facts underlying Watkins's conviction, as recited by Respondent:
In May 2001, Zinella Davis lived at 113 Amherst Avenue in Syracuse, New York with [Watkins], her boyfriend, and her four children, including JHW, who was 10 years old at the time (T: 278-79). In mid-May, JHW was sleeping in her bed when she was awakened by [Watkins], who was naked (T: 221, 223-26). [Watkins] climbed on top of JHW, pulled down her panties, and penetrated her vagina with the "private" part of his body between his legs. "Yucky stuff" came out of [Watkins's] "private" part before he stopped (T: 227-29, 233). JHW did not immediately tell her mother about what [Watkins] had done because she was scared (T: 230-31). Davis ended her relationship with [Watkins] when she found him in JHW's bedroom (T: 288, 290).
On May 29, 2001, Davis brought JHW to the Emergency Room at University Hospital, where JHW told Dr. Lindsey Stastler, a pediatric resident, that [Watkins] had raped her (T: 280). Dr. Stasler referred JHW to the hospital's care clinic headed by Dr. Ann Botash, director of the Child Abuse Referral and Evaluation Program, and an expert in the field of pediatrics and child sexual trauma, examined JHW (T: 255, 257-58, 261-62). Using a colposcope-a large microscope attached to a videotape recorder-Dr. Botash made a videotape of JHW's genital area. Dr. Botash compared the videotape to a videotape from a pelvic examination of JHW done in 1999, and found a change in JHW's hymen. The hymeneal tissue was missing at the five o'clock and six o'clock position, which is the area that is most likely to be damaged during a sexual assault (T: 261-62, 265, 269). Dr. Botash concluded that JHW sustained a penetrating trauma to her vagina that had healed (T: 270).
On May 29, 2001, Detective Fox interviewed JHW at the police station (T: 306-07). Later that day, Police Officers David Mathewson and DeCaro located [Watkins] at 112 Redfield Place, in an attic crawl space (T: 320-21).
On June 6, 2001, while Davis was washing clothes at the laundromat, she found a pair of JHW's underwear, which was "very crusty and had a stain" on the crotch (T: 281-82, 285). After speaking with JHW, Davis put the underwear in a plastic bag and gave it to the police (T: 282-83). The underwear was submitted to the forensic center for analysis (T: 309). On November 9, 2001, Detective Fox obtained a DNA sample from JHW, and on November 13, 2001, he obtained a DNA sample from [Watkins] (T: 309-11).
Kathleen Hum, a scientist at the Center for Forensic Science, performed a serological analysis of JHW's underwear and found semen on the inner crotch. She cut out three small parts and submitted it for DNA testing (T: 336, 338). Sheila Gentile, a senior DNA biology scientist at the Center for Forensic Scientist, who was accepted as an expert in DNA testing, found that her analysis of the semen from JHW's underwear did not exclude [Watkins] as the source of the semen. She stated that the DNA profile found had a probability of being found randomly in 1 out of 248 trillion African Americans (T: 356-58, 361, 363).
[Watkins], Sandra Soriano, and Tashia Godly-Hall testified on behalf of the defense. Soriano, the mother of four of [Watkins's] children, testified that [Watkins] was at her home on May 29, 2001, when two police officers arrived looking for him (T: 378-79). [Watkins] had come to her house about 30 minutes before the police got there (T: 381). After a 15-minute search of her home, the officers arrested [Watkins] (T: 379).
According to Soriano, within three months of the trial, [Watkins] had written her letters asking for her help. In one letter, [Watkins] told her, "work with me on this one, not against me" (T: 384). One of the letters instructed Soriano to visit [Watkins] if she wanted money. In one letter, [Watkins] said he loved her and wanted to marry her (T: 385). When she received the letters she felt threatened because she was trying to end her relationship with [Watkins] (T: 385).
[Watkins] testified that he had been in a relationship with Zinetta Davis for about 11/2 years (T: 389). [Watkins] testified that during his relationship with Davis, she would at times masturbate him, and then wipe him off with a towel or rag. He said that he did not see the items that Davis used to wipe him (T: 394-95). [Watkins] claimed that his relationship with Davis ended because he had gotten into a fight with Davis's brother. He denied that Davis broke up with him after seeing her [sic] in JHW's bedroom (T: 401-02). [Watkins] denied that he was in JHW's bedroom on May 29, 2001, and claimed not to remember testifying at his first trial that he was in JHW's bedroom (T: 402, 418-19).
He claimed that about three weeks before he was arrested on May 29, 2001, he and Davis stayed at the home of his cousin, Tashia Godly-Hall for about two weeks, while Davis's children stayed with their grandmother (T: 392-94).
Godly-Hall testified that she went out of town for six days beginning about May 20, 2001. She gave her house key to [Watkins], and twice spoke to him when she called her house while she was gone (T: 422-23).*fn5
II. GROUNDS RAISED/DEFENSES
In his Amended Petition, Watkins raises seventeen grounds: (1) the trial court admitted DNA evidence without first determining the reliability of the techniques used; (2) the trial court admitted evidence of the victim's underwear even though there were gaps in the chain of custody; (3) retrial on the rape and child endangering charges violated Watkins's double jeopardy rights; (4) the prosecutor failed to provide Rosario*fn6 material to the defense in a timely manner; (5) the trial court committed various evidentiary errors; (6) the verdict was not supported by legally sufficient evidence and was against the weight of the evidence; (7) the prosecutor committed misconduct by referring to evidence of the sexual abuse charges, of which Watkins had been acquitted in his first trial; (8) the trial court improperly denied a mistrial based on the prosecutor's misconduct; (9) the trial court abused its discretion in denying Watkins's request to appoint a defense DNA expert; (10) the trial court improperly denied a motion to dismiss the indictment on speedy trial grounds; (11) Watkins's sentence as a persistent felony offender violated his Sixth Amendment right to a jury trial and due process as set forth in Apprendi;*fn7 (12) cumulative error based upon the first eleven grounds; (13) retrial on the rape and child endangering charges violated the Double Jeopardy Clause; (14) the trial court improperly based its adjudication as a persistent felony offender on a prior felony conviction that was subsequently reversed on appeal; (15) Watkins was denied the effective assistance of trial counsel because his trial attorney failed to (a) investigate his competency to stand trial, (b) preserve the double jeopardy claim, and (c) preserve the challenge to his adjudication and sentence as a persistent felony offender; (16) he was denied the effective assistance of counsel in that counsel failed to (a) challenge the legality of his arrest, (b) request handwriting samples to challenge evidence that he had written letters to the victim, (c) investigate and present certain witnesses, (d) ensure his appearance before the grand jury, (e) preserve his claim that the trial court improperly admitted evidence of the victim's underwear, and (f) argue that the 90-day delay the People received for DNA testing was includable for purposes of the speedy trial claim; and (17) the trial court improperly denied Watkins of his right to counsel of his choice.*fn8 Respondent contends that except for the double jeopardy (third and thirteenth grounds), insufficiency of the evidence (sixth ground), prosecutorial misconduct (seventh and eighth grounds), denial of the appointment of a DNA expert (ninth ground), improper use of a reversed conviction in sentencing (fourteenth ground), and denial of his counsel of choice (seventeenth ground), Watkins's claims are unexhausted and procedurally barred, or procedurally barred.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), 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 renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn9 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."*fn10 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.*fn11 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.'"*fn12
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."*fn13
The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn14
"[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.'"*fn15 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn16
Watkins"bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn17
The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn18
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn19 Under AEDPA, 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 to the 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.
To the extent that Watkins raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding.*fn23 It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn24 A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn25 This principle applied to federal habeas review of state convictions long before AEDPA.*fn26 A federal court errs if it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court's interpretation of the law.*fn27 It does not matter that the state supreme court's statement of the law was dictum if it is perfectly clear and unambiguous.*fn28 A determination of state law by a state intermediate appellate court is also binding in a federal habeas action.*fn29 This is especially true where the highest court in the state has denied review of the lower court's decision.*fn30
A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn31 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn32 "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn33
The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn34 If it plainly appears on the face of the petition that the petitioner is not entitled to relief, a district court must dismiss the petition.*fn35 The district court may dismiss on this basis sua sponte after an initial screening and an answer has been ordered and filed.*fn36 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of ...