conviction, and the court informed petitioner that if he pleaded guilty, he "must go to jail, that is the law," but that he would be given concurrent sentences. Petitioner requested an adjournment to consider the proposed plea, and the court granted the adjournment.
According to the record, counsel ultimately was appointed for petitioner on or about April 29, 1981. Thereafter, petitioner was represented by counsel at his plea on May 7, 1981 (and, apparently, at further plea negotiations, although it is unclear when further negotiations occurred), and at sentencing on October 9, 1981. However, there is no indication in the record that the trial court, at any time, advised petitioner of the advantages or disadvantages of proceeding without counsel or inquired whether his waiver of counsel (before counsel was appointed and appeared on or about April 29, 1981) was voluntarily and intelligently made.
Based on the record presented, this Court finds that, even assuming petitioner was denied his Sixth Amendment right to counsel (when he was permitted to appear in the absence of counsel without the necessary warnings and inquiry by the trial court antecedent to any waiver),
petitioner has not demonstrated that he suffered any actual prejudice under the circumstances, particularly considering that he was represented by counsel when he voluntarily and intelligently accepted the terms of the proposed plea and when he entered the plea (as discussed below). See Grune v. Thoubboron, No. 91 Civ. 3655, 1995 U.S. Dist. LEXIS 3722, 1995 WL 130517, at *1-3 (S.D.N.Y. Mar. 24, 1995). Petitioner does not claim, and there is no indication in the record, that he asserted or attempted to assert any rights that he may have lost or waived while proceeding in the absence of counsel or that he lost or waived any rights that he could have asserted through his appointed counsel had he chosen to defend the case rather than plead guilty. Because no prejudice is shown, petitioner can neither prevail on the merits of his first claim nor overcome the procedural bar to this claim. Based on his failure to establish prejudice, petitioner cannot prevail on the merits of his second claim nor overcome the procedural bar to that claim because he is unable to show that any failure of appellate counsel to raise the substance of the first claim on appeal caused him prejudice (even assuming that he could show cause for abandoning the direct appeal).
In addition, petitioner does not show that there has been a "fundamental miscarriage of justice" warranting excuse of the procedural defaults as to these claims.
As for the third claim, petitioner asserts that he did not enter his guilty plea voluntarily and intelligently because the trial court failed to apprise him of the essential elements of the crimes to which he pleaded guilty. The record shows that, as to each of the two indictments, Indictment No. 21/81 and Indictment No. 61/81,
petitioner pleaded guilty to attempted burglary in the second degree. The relevant portions of the transcript of the plea proceeding on May 7, 1981 indicates the following exchange:
[The Court: Indictment No. 21/81] accuses you of on or about the 11th day of December, 1980, that you attempted to enter and remain unlawfully in 76 Utter Avenue in the nighttime with intent to commit a crime of larceny. Did you attempt to do that, is that right?