The opinion of the court was delivered by: HOMER
ORDER AND REPORT-RECOMMENDATION1
Richard Martuzas, petitioner pro se and an inmate in the custody of the New York State Department of Correctional Services, pleaded guilty to the criminal sale of a controlled substance in the third degree in Jefferson County Court. He was sentenced to an indeterminate term of five to fifteen years imprisonment. Petitioner, having exhausted all available state remedies, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on three grounds: (1) the trial judge incorrectly denied petitioner's motion for recusal; (2) petitioner was denied the effective assistance of trial counsel; and (3) the trial judge erred in denying petitioner's motion to withdraw his guilty plea. For the reasons which follow, it is recommended that the petition be denied.
In November, 1993, a Jefferson County grand jury returned Indictment No. 523-93 (the first indictment), charging petitioner in two counts each with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The first indictment alleged that petitioner sold cocaine to an undercover police informant on October 6 and 7, 1993. RA 3-4.
Prior to petitioner's arraignment on the first indictment, petitioner was again arrested and charged in Indictment No. 561-93 (the second indictment) with one count each of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third and fourth degrees. Petitioner was arraigned separately on each indictment and entered pleas of not guilty to all charges. PB 2.
A trial on the first indictment commenced on May 16, 1994, before Jefferson County Court Judge, Lee Clary. On May 16, petitioner made oral motions for substitution of counsel and for the recusal of Judge Clary from the proceedings. Petitioner based the motions, respectively, on his attorney's failure to make an earlier motion for recusal and on the fact that petitioner had filed a formal complaint against Judge Clary in 1975 when Judge Clary, as a practicing attorney, represented petitioner on an appeal. Both motions were denied. RA 36-44.
Jury selection commenced. RA 45. Before jury selection was completed, petitioner pleaded guilty to criminal sale of a controlled substance in the third degree to satisfy the first indictment. RA 49-50. On July 19, 1994, petitioner appeared before Judge Clary for sentencing. At that time petitioner's counsel was formally substituted. His new attorney moved to vacate petitioner's May 16, 1994 guilty plea and renewed petitioner's motion for recusal. Petitioner also moved to vacate his guilty plea. RA 73-83. The court again denied both motions and sentenced petitioner to an indeterminate term of five to fifteen years imprisonment on the first indictment. RA 105-06.
The Appellate Division affirmed. People v. Martuzas, 224 A.D.2d 928, 637 N.Y.S.2d 596 (4th Dep't 1996). The Court of Appeals denied leave to appeal. 88 N.Y.2d 881, 645 N.Y.S.2d 456 (1996). This action followed.
A writ of habeas corpus cannot be granted unless there has been a violation of a petitioner's constitutional rights. Brown v. Doe, 2 F.3d 1236, 1249 (2d Cir. 1993), cert. denied, 510 U.S. 1125, 127 L. Ed. 2d 403, 114 S. Ct. 1088 (1994). Petitioner states that his due process rights were violated by Judge Clary's failure to recuse himself. To constitute a due process violation, however, petitioner must show that the judge had a "direct, personal, substantial, pecuniary interest in reaching [the particular] conclusion against him in his case." Tumey v. Ohio, 273 U.S. 510, 523, 71 L. Ed. 749, 47 S. Ct. 437 (1927). Where, as here, the basis for recusal lies within "matters of kinship, personal bias, state policy, [or] remoteness of interest," the determination whether a judge should be excused is best left to the discretion of the legislature. Tumey v. Ohio, 273 U.S. at 523.
Petitioner bases his argument for recusal upon the fact that he filed a formal grievance against Judge Clary in 1975. However, this fact does not raise petitioner's allegation to a violation of constitutional dimension. The mere motion for recusal based upon an allegation of personal prejudice does not require a judge to step down. Judges are "'sworn to administer impartial justice, and [their] authority greatly depends upon that presumption and idea.'" Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986)(quoting 3 W. Blackstone, COMMENTARIES *361).
Even if the proceedings had occurred in federal court where a federal judge is required to disqualify himself "in any proceeding in which his impartiality might be reasonably questioned," the petitioner's claim would still fail. 28 U.S.C.A. § 455(a); see Ungar v. Sarafite, 376 U.S. 575, 587, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964) (judge not required to disqualify ...