The Fifth Amendment Call was unobjected to and therefore was expressly regarded as unpreserved by the Appellate Division, which effectuates a procedural bar. Thompson v. Griffin, No. 14-CV-1641 (DLI), 2019 WL 1368995, at *4 (E.D.N.Y. Mar. 25, 2019) (quoting Butler v. Cunningham, 313 F. App'x 400, 401 (2d Cir. 2009) (summary order) ("When a state court concludes that a claim is unpreserved for appellate review, this is 'an independent and adequate state ground that bars a federal court from granting habeas relief.'") Additionally, the argument that Smith was deprived of due process by being excluded from the sidebar discussions regarding the pretrial/Sandoval rulings was neither raised on direct appeal nor contemporaneously objected to and is likewise procedurally barred.
Maples v. Thomas , 565 U.S. 266, 280, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012) (internal quotation marks omitted). "[W]hen a state court concludes that a claim is unpreserved for appellate review, this is ‘an independent and adequate state ground that bars a federal court from granting habeas relief.’ " Thompson v. Griffin , No. 14-CV-1641, 2019 WL 1368995, at *4 (E.D.N.Y. Mar. 25, 2019) (quoting Butler v. Cunningham , 313 F. App'x 400, 401 (2d Cir. 2009) (summary order)). A petitioner can overcome this bar only if he can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law."