The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Richard Rollins, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Rollins is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Clinton Correctional Facility. Respondent had answered, and Rollins has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Rollins was convicted by a Schenectady County jury of one count of Manslaughter in the Third Degree (N.Y. Penal Law § 125.20), two counts of Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09(a), (b)), one count of Criminal Possession of a Firearm (N.Y. Penal Law § 265.03), and four counts of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.02, ).*fn1 In April 2003, the Schenectady County Court sentenced Rollins to an aggregate prison sentence of forty-seven years, followed by thirteen years of supervised release. While his appeal was pending, Rollins, appearing pro se, filed a motion to vacate his sentence under N.Y. Criminal Procedure Law § 440.20 ("CPL § 440.20 motion) in the Schenectady County Court. The County Court denied the motion and the Appellate Division granted leave to appeal. The Appellate Division, Third Department, consolidating the appeal from the conviction and the denial of the CPL § 440.20 motion, affirmed Rollins's conviction, but reduced his sentence to twenty-five years imprisonment, followed by five years of supervised release, and the New York Court of Appeals denied leave to appeal on January 6, 2009.*fn2 On December 15, 2009, Rollins, appearing pro se, filed an application for a writ of error coram nobis in the Appellate Division, which was summarily denied without opinion or citation to authority, and the Court of Appeals denied leave to appeal on July 1, 2010. Rollins timely filed his Petition for relief in this Court on September 23, 2010.
The facts underlying Rollins's conviction are not germane to the issues presented; therefore, they are not recited herein.
II. GROUNDS RAISED/DEFENSES
In his Petition Rollins raises three grounds: (1) the trial court impermissibly constructively amended the indictment by sua sponte submitting two lesser charges to the jury, i.e., manslaughter in the first and second degree; (2) ineffective assistance of appellate counsel; and (3) the trial court erred in failing to instruct on the defense of others in its justification charge. Respondent contends that Rollins's first ground is unexhausted, but raises no other affirmative defenses. In his Traverse, Rollins conceded his first and third grounds lacked merit and abandoned them. Consequently, this Court will not consider those two grounds.
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 Rollins"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 ...