was denied his right to appeal. However, Sims waived his right to appeal when he pleaded guilty. Unless Sims was prepared to attempt to withdraw his guilty plea, he had no right to appeal of which to be informed. Obviously there are no proper means to perfect a non-existent right, and Petitioner's counsel could not have been expected to file a notice of appeal under these circumstances. Thus, Petitioner has failed to satisfy the first part of the Strickland-Hill test.
Even if Petitioner had a right to appeal, he has failed to satisfy his burden under step two of the Strickland-Hill test by demonstrating a reasonable probability that but for his counsel's errors, he would not have pleaded guilty in 1976, but instead would have insisted on going to trial. The language in Sims' petition on this point is confusing at best. (See Pet. Supp. Writ Habeas Corpus, January 17, 1995 at 5.) The petition might be read to indicate that the 1976 sentencing judge should have told Sims that if he had been convicted of a felony prior to 1976, that conviction could be used to enhance his 1976 sentence. However, Sims has offered no evidence -- nor has he even asserted generally -- that he had some pre-1976 felony conviction which the 1976 sentencing judge considered in imposing sentence. As a result, I can find no evidence under this interpretation to support a finding of a reasonable probability that but for the actions of counsel, the outcome of the proceedings would have been different or that Sims would not have pleaded guilty and insisted on going to trial. This interpretation of Petitioner's claims thus fails the second part of the Strickland-Hill test.
Alternatively, Sims contention may be that the 1976 sentencing judge had an obligation to inform him of the possible future consequences of his conviction. Specifically, Sims asserts that the sentencing judge should have told him that if at some time in the future he were to be convicted of a felony, the 1976 conviction could be used to enhance the sentence on the future conviction. Under this argument, Petitioner would have me impose upon the state courts the obligation of acting with omniscience when imposing sentences. It goes against our notions of justice to assume that simply because a defendant has committed a crime once, he is destined to repeat his criminal behavior in the future. Moreover, two of the considerations behind criminal punishment are specific deterrence of an individual defendant and rehabilitation. United States v. Murphy, 108 F.R.D. 437, 438 (E.D.N.Y. 1985). Assuming that our justice system continues to adhere to the pursuit of these goals, the 1976 sentencing judge had no obligation or ability to foresee that Sims would commit another felony years into the future. In turn, the 1976 sentencing judge had no obligation to warn Sims that his then-present felony conviction could be used as a sentence-enhancing predicate in the event of a future felony conviction.
If this is the correct interpretation of Sims' claim, it would be a claim manufactured in hindsight in a specious attempt to overturn an otherwise valid eighteen year-old conviction. On this basis, I cannot find that "but for" counsel's alleged error, Sims would not have pleaded guilty, but instead would have insisted on going to trial eighteen years ago. Therefore, the petition as construed in this manner fails the second part of the Strickland-Hill test, as well.
Regardless of how the argument in the petition is read, it fails both prongs of the Strickland-Hill test. In turn, Sims has failed to demonstrate that his 1976 sentence was rendered unjust or unreliable due to any deficiency in the assistance of his counsel. Therefore, Justice Rothwax's reliance on the 1976 conviction as a predicate for the enhancement Sims' 1988 sentence was not unjustified, and accordingly this petition for a writ of habeas corpus is denied.
For the foregoing reasons, the petition for a writ of habeas corpus on the basis that possession of a weapon in the third degree does not constitute a violent predicate felony is denied for Petitioner's failure exhaust all available state remedies. The petition for a writ of habeas corpus on the basis of ineffective assistance of counsel is denied on the merits.
Both petitions are hereby dismissed.
DATED: New York, New York
May 19, 1995
KEVIN THOMAS DUFFY, U.S.D.J.