The opinion of the court was delivered by: COOPER
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254. The relevant procedural history of petitioner's case follows:
In 1969 petitioner was convicted of attempted robbery and aggravated assault in Duval County, Florida, and in 1971 in Bay County, Florida he was convicted of escape. On February 2, 1979, following a jury trial in the County Court, County of Westchester, State of New York, petitioner was convicted on nine counts: two counts of attempted assault in the first degree, two counts of assault in the first degree, two counts of robbery in the first degree, two counts of criminal possession of a weapon in the second degree, and one count of grand larceny in the second degree. On May 21, 1979, following a hearing ("the first hearing"), petitioner was found to be a persistent felony offender pursuant to N.Y.C.P.L. 400.20 based upon his previous Florida convictions. Accordingly, he was sentenced to serve eight concurrent indeterminate terms of imprisonment from 20 years to life. (Affirmation in Opposition (dated May 6, 1986) at 2)
On petitioner's direct appeal, the Appellate Division of the Supreme Court of the State of New York, Second Department, affirmed the conviction but modified the judgment by vacating the imposed sentence on the ground that the trial judge failed to follow proper procedures during the persistent felony offender hearing. The case was remanded to redetermine petitioner's status and sentence. People v. Sailor, 85 A.D.2d 746, 449 N.Y.S.2d 646 (2d Dep't 1981).
A second hearing was conducted ("the second hearing") on July 29, 1982 at which the trial court held that petitioner was not a persistent felony offender. After a pre-sentence report was ordered, petitioner was instead classified at a third hearing ("the third hearing") as a second felony offender pursuant to N.Y. Penal Law 70.06 based solely upon his 1969 attempted robbery conviction in Florida. On October 7, 1982, petitioner was resentenced accordingly to serve two concurrent indeterminate terms of imprisonment of not less than three years six months and not more than seven years. (Affirmation in Opposition (dated May 6, 1986) at 2)
Petitioner appealed to the Appellate Division, Second Department his classification as a second felony offender. Three of the claims he advanced in that appeal are again advanced in his present application for a writ of habeas corpus:
(1) that his sentencing as a second felony offender was a violation of the double jeopardy clauses of both the United States and New York Constitutions and of the doctrine of collateral estoppel since that classification was based upon one of the previous Florida convictions (attempted robbery); it was improper under these doctrines of law to introduce the 1969 attempted robbery conviction because the State had already failed, at the first and second hearings, to prove that petitioner was the same person who committed that offense;
(2) that the protections of double jeopardy and collateral estoppel were triggered at the point the original jeopardy was terminated (when the State failed to prove at the second hearing that petitioner was the same person convicted of the previous offenses in Florida); that it makes no difference that the trial court erred at that hearing in ruling that the transcript of the first hearing was hearsay and thus not admissible as evidence; and
(3) that the trial judge's decision with respect to the length of petitioner's sentence was tainted by the Florida attempted robbery conviction where petitioner's right to assistance of counsel was violated as there was no record of counsel at the preliminary hearing for the Florida conviction nor was there any motion to suppress made with respect to a photographic identification.
On May 14, 1984, the Appellate Division affirmed the classification of petitioner as a second felony offender and the subsequent resentencing. People v. Sailor, 101 A.D.2d 844, 475 N.Y.S.2d 876 (2d Dep't 1984).
On August 17, 1984, petitioner was granted leave to appeal to the New York Court of Appeals. On that appeal, petitioner raised the double jeopardy and collateral estoppel claims he had previously asserted, but he failed to raise the right to counsel issue. On June 4, 1985, the New York Court of Appeals affirmed the decision of the Appellate Division. People v. Sailor, 65 N.Y.2d 224, 480 N.E.2d 701, 491 N.Y.S.2d 112 (1985).
In his instant application, petitioner again alleges that his second felony offender status was determined in violation of his constitutional rights and that he was thus illegally sentenced. Petitioner asserts:
(1) that the double jeopardy clauses of both the United States and New York Constitutions and the doctrine of collateral estoppel barred relitigation at the third hearing of his previous Florida attempted robbery conviction since at the second hearing, the State did not sustain its burden of proving that petitioner was the same person who was convicted of attempted robbery in Florida;
(2) that it is irrelevant under the double jeopardy clause whether the trial court at the second hearing committed an evidentiary ...