The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Brian Shaw, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Shaw is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Eastern New York Correctional Facility. Respondent has answered, and Shaw has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In April 2006 Shaw was convicted following a jury trial in the Onondaga County Court of Manslaughter in the First Degree (N.Y. Penal Law § 125.20) and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10). The trial court sentenced Shaw to a determinate prison term of twenty-one years followed by five years of supervised release on the manslaughter conviction and a concurrent term of one year on the child endangerment conviction. The Appellate Division, Third Appellate Department, affirmed the conviction and sentence, and the New York Court of Appeals denied leave to appeal on February 23, 2010.*fn1 On July 9, 2010, Shaw, appearing pro se, filed a motion to vacate the conviction under N.Y. Criminal Procedure Law § 440.10 ("CPL § 440.10 motion") in the Onondaga County Court. The Onondaga County Court denied the motion in a reasoned decision, and the Appellate Division denied leave to appeal on June 10, 2011. Shaw timely filed his Petition for relief in this Court on July 24, 2011.
The facts underlying Shaw's conviction are unnecessary to the determination of the issues raised on appeal. Consequently, they are not recited here.
II. GROUNDS RAISED/DEFENSES
In his Petition Shaw raises four grounds: (1) ineffective assistance
of counsel for failing to challenge a Miranda violation;*fn2
(2) ineffective assistance of counsel for failing to request
that he be given another psychiatric evaluation; (3) a violation of
his right to confront and cross-examine witnesses (failure to give a
missing witness instruction), and that an unsworn juror was permitted
to remain on the jury; and (4) that the imposition of the post-release
supervision illegally enhanced his sentence. Respondent contends that
Shaw's second and part of his third grounds are unexhausted and
procedurally barred. Respondent raises no other affirmative
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
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 Shaw"bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn11
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.
A. Deficiencies in Petition
The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn17 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.*fn18 The district court may dismiss on this basis sua sponte after an initial screening and an answer has been ordered and filed.*fn19 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding [than notice pleading]. 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 constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date." Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn20
The Petition in this case, even when considered in conjunction with the Traverse, is in several instances terse and practically devoid of essential factual support for Shaw's conclusory allegations. As noted above, Shaw, as the petitioner, bears the burden of establishing entitlement to habeas relief by the preponderance of the evidence.*fn21 As is discussed below in connection with the grounds raised, in this case, not only has Shaw in some instances failed to provide evidentiary support, he has not even alleged sufficient facts that, if proved, would entitle him to relief.
In his Traverse Shaw appears to assert additional grounds, e.g.,
prosecutorial misconduct, erroneous denial of a suppression motion,
and a denial of a statutory right to be examined by two psychiatrists.
This Court does not ordinarily consider grounds raised for the first
time in the traverse. "The petition must: (1) specify all the grounds
for relief available to the petitioner; (2) state the facts supporting
each ground; [and] (3) state the relief requested . . . ."*fn22
To the extent that Shaw wishes to raise additional grounds,
the proper procedure would be to file a motion to amend the petition
under Federal Rule of Civil Procedure 15. In this case, however, such
a motion would be ...