The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Sammy Caswell, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Caswell is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Southport Correctional Facility. Respondent has answered. Caswell has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Caswell was convicted by a jury of two counts of Criminal Sale of a Controlled Substance (N.Y. Penal Law § 220.39) and two counts of Criminal Possession of a Controlled Substance (N.Y. Criminal Law § 220.16). In May 2006 the Cayuga County Court sentenced Caswell, as a second felony offender, to a determinate sentence of twelve years on each count, to be served concurrently, followed by a three and one-half year term of supervised release. The Appellate Division, Fourth Appellate Department, affirmed Caswell's conviction and sentence in a reasoned, published decision, and the New York Court of Appeals denied leave to appeal on August 13, 2008.*fn1
On March 26, 2009, Caswell, appearing pro se, filed a motion to vacate the judgment under N.Y. Criminal Procedure Law § 440.10 ("CPL 440.10 motion") in the Cayuga County Court, which was denied in an unpublished reasoned decision on July 16, 2009. The Cayuga County Court denied Caswell's subsequent motion to vacate and reargue the July 16, 2009, order on December 17, 2009. Caswell did not appeal from the denial of his CPL § 440.10 motion. On January 6, 2010, Caswell then filed a motion for a writ of error coram nobis in the Appellate Division, which was summarily denied without opinion or citation to authority, and the New York Court of Appeals denied leave to appeal on August 3, 2010.*fn2 Caswell timely filed his Petition for relief in this Court on November 5, 2010.
Because the facts are unnecessary to a determination of the grounds raised, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
Caswell raises eight grounds: (1) actual innocence; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; (4) judicial misconduct; (5) improper introduction of audio recordings and transcripts into evidence; (6) prosecutorial misconduct; (7) police misconduct; and (8) that the trial court erred in denying Caswell the opportunity to call witnesses. The Respondent asserts that Caswell's first (actual innocence), second (ineffective assistance of counsel), fourth (judicial misconduct), fifth (introduction of audio recordings), seventh (prosecutorial misconduct), and eighth (police misconduct) claims are wholly or partial unexhausted. Respondent raise no other affirmative defense.
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."*fn3 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."*fn4 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.*fn5 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.'"*fn6 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."*fn7 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.*fn8 "[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.'"*fn9
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.*fn10
Caswell "bears the burden of proving by a preponderance of
the evidence that his constitutional rights have been
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.*fn12
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn13 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.*fn14 Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,*fn15 the Second Circuit has left the question open with respect to AEDPA cases.*fn16 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.
Caswell has not filed a reply to Respondent's answer. 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 judge finds from the evidence that they are not true. Ordinarily, under § 2248, where there is no denial of the Respondent's allegations in the answer, or the denial is merely formal and unsupported by an evidentiary basis, the court must accept Respondent's allegations.*fn17 Where there is no traverse filed and no evidence offered to contradict the allegations of the return, they must be accepted as true.*fn18
This Court may not consider claims that have not been fairly presented to the state courts.*fn19 This Court must dismiss the unexhausted claims.*fn20 On July 1, 2011, this Court granted Caswell a stay to permit him to exhaust his unexhausted claims.*fn21 The stay was vacated on March 26, 2012, by a Text Order, which was served on the parties by mail on the same date. Subsequently, this Court, noting that the issues raised by Caswell in his CPL § 440.10 were technically unexhausted, requested that Respondent signify whether or not the failure to exhaust defense was waived.*fn22 Through a letter brief `filed on June 25, Respondent indicated that the failure to exhaust defense was not waived.*fn23 Caswell has not replied to Respondent's contentions that some of the grounds asserted are either wholly or partially unexhausted. Consequently, this Court will dismiss those claims that the record establishes have not been properly exhausted without reaching the merits.
The claim must have been presented to the highest state court that may consider the issue presented.*fn24 "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief."*fn25 A mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to present the substance of a constitutional claim to the state courts.*fn26 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 ...