The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge
REPORT and RECOMMENDATION
Petitioner Alvin Peterson ("Peterson") made an application pro se, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. Thereafter, counsel was appointed to represent him. Before the Court is the respondents' motion to dismiss the petition. The respondents contend that in 1997, Peterson applied for a writ of habeas corpus from this court and, therefore, the instant petition is a second or successive petition proscribed by 28 U.S.C. § 2244. Peterson disagrees. He urges the court to deny the respondents' motion; it is addressed below.
Peterson was arrested on August 7, 1993, and charged with criminal sale and possession of a controlled substance in the third degree. In April 1994, after plea negotiations had ensued, Peterson agreed to tender a plea of guilty to attempted criminal sale of a controlled substance in the third degree. He did so in return for a promised sentence of three and one-half to seven years incarceration. It was further promised that the sentence would run concurrently with a period of incarceration it was expected Peterson would receive for violating the terms and conditions of his federal parole.
Through a series of mishaps, Peterson was never able to be sentenced in state court so as to secure the concurrent sentence for which he had bargained. As a result, Peterson completed the period of incarceration that he was required to serve for violating the terms and conditions of his federal parole without earning credit toward his state sentence. On February 28, 1997, after Peterson had fulfilled his obligation to federal authorities, the state sentence of three and one-half to seven years imprisonment that had previously been imposed on Peterson by the trial court and then vacated by the same court, in an effort to effect the promise of concurrency, was reimposed on Peterson by the trial court.
Thereafter, the New York State Department of Correctional Services calculated the dates on which Peterson would complete his maximum sentence, be eligible for parole and be conditionally released from state prison. The calculation did not credit Peterson for the period of incarceration occasioned by his violation of the terms and conditions of his federal parole. Therefore, the calculation did not honor Peterson's plea agreement or the sentence the trial judge had imposed, which provided that the time petitioner served in federal custody for violating parole would run concurrently with the period of incarceration petitioner would serve for violating New York's Penal Law.
On July 31, 1997, Peterson filed a Notice of Appeal with the New York State Supreme Court, Appellate Division, First Department, challenging the judgment entered on February 28, 1997, that committed him to the custody of the New York State Department of Correctional Services for three and one-half to seven years. The Legal Aid Society was appointed to represent petitioner in connection with the appeal. Peterson did not hear from an attorney for several months after the Legal Aid Society was appointed to represent him. Therefore, Peterson sent several letters to the Legal Aid Society; the letters went unanswered. Consequently, on January 8, 1998, Peterson asked the Appellate Division to appoint new counsel for him. That application was granted. However, on March 16, 1998, the newly appointed attorney requested that the court relieve him of the obligation of assisting Peterson with his appeal. The attorney explained that his request was prompted by his friendship with Peterson's trial counsel, against whom there was evidence that he had rendered ineffective assistance to Peterson. The Appellate Division granted the attorney's request and assigned another attorney to represent Peterson. However, this attorney also asked to be relieved of the obligation of assisting Peterson with his appeal. He claimed that his relationship to Peterson's prior appellate counsel presented him with a conflict of interest.
Due to this series of events, no brief was submitted to the Appellate Division on Peterson's behalf until January 1999. Through that brief, Peterson urged the Appellate Division to dismiss the indictment to which he had pleaded guilty because the four-year delay in imposing the three and one-half to seven year sentence upon him was inordinate, the extended period of incarceration he suffered, occasioned by the delay in effecting the promised sentence, was cruel and unusual punishment and violated the due process clause of the state and federal constitutions and, furthermore, the state had violated the terms and conditions of the Interstate Agreement on Detainers Act. Peterson had attempted to use the provisions of the Act to have his promised sentence executed.
In September 1997, while Peterson was attempting to have his appeal prosecuted, he petitioned this court for a writ of habeas corpus. He requested that the court direct that he be released immediately from New York State's custody because the state had violated federal statutory rights he had under the Interstate Agreement on Detainers Act, and had delayed in imposing his promised sentence. In addition, Peterson claimed the writ should be granted because his trial and appellate counsel had rendered ineffective assistance to him. Although Peterson had not exhausted all the state remedies available to him when he sought habeas corpus relief from the court at that time, your Honor determined to excuse that deficiency and, after finding that the delay in sentencing that Peterson had experienced and the delay he was then experiencing in having his appeal perfected, were violative of the Sixth Amendment and the Due Process Clause, your Honor granted the writ in order to give effect to the plea bargain into which Peterson had entered with the state in 1994.
On September 9, 1999, Peterson's judgment of conviction was affirmed. See Peterson v. People of the State of New York, 264 A.D.2d 574, 695 N.Y.S.2d 550 (App. Div. 1st Dept. 1999). The Appellate Division reasoned that, since the Interstate Agreement on Detainers Act applied only to untried charges and did not apply to situations involving a person who has been convicted but not yet sentenced, the trial court acted properly in finding that Peterson's rights under the Act had not been violated. Furthermore, the Appellate Division found no reason to dismiss the indictment because of the long delay in sentencing Peterson. The court explained that, when plausible reasons exist for the period of delay, any unreasonable delay in sentencing a criminal defendant may be excused. In the instant case, the Appellate Division found that the trial court had initially sentenced Peterson two months after he tendered his plea of guilty in 1994. Thereafter, the trial court made "diligent and persistent attempts to effectuate the terms of the plea bargain by vacating and reissuing the sentence several times at [petitioner's] request and repeatedly [directed] the correctional authorities to cooperate." Peterson v. People of the State of the New York, 264 A.D.2d at 576, 695 N.Y.S.2d at 552. Moreover, the Appellate Division found that the confusion concerning Peterson's sentence, that caused him to remain incarcerated eight months beyond his conditional release date, did not amount to cruel and unusual punishment because he was not incarcerated beyond the maximum term of his statutorily valid sentence of three and one-half to seven years imprisonment. The New York Court of Appeals later declined to entertain an appeal by Peterson from the Appellate Division's decision. See People v. Peterson, 94 N.Y.2d 865, 704 N.Y.S.2d 541 (1999).
Peterson found the determination made by the Appellate Division to be in tension with conclusions your Honor reached respecting his Sixth Amendment and Fourteenth Amendment rights when you disposed of his 1997 petition for a writ of habeas corpus; therefore, he filed the instant petition.
Respondents maintain that all the claims asserted in the instant petition were previously presented to and adjudicated by the court when it considered Peterson's 1997 petition. Thus, respondents contend, the petition before the court is a second or successive application for collateral relief which may be heard only if it involves newly discovered evidence of a potentially dispositive nature or a new or retroactive rule of constitutional law. Respondents also contend that, since the application before the court is a second or successive petition, certification from the Second Circuit Court of Appeals is needed before the application may be entertained. Since Peterson has not sought that certification, respondents allege that the court should not consider Peterson's petition.
Peterson contends that the respondents' position lacks merit. He points out that, when considering the 1997 petition, the court could not have analyzed and ruled upon his current challenge to the Appellate Division's decision because that decision had not yet been rendered. In addition, Peterson also contends that, in granting his 1997 application for a writ of habeas corpus, the court simply enabled him to pursue his appeal without continuing to be held in state prison beyond the period contemplated by the 1994 plea agreement through which he disposed of the drug-related criminal charge that had been lodged against him in 1993. Peterson suggests that the instant petition should be viewed in the same light as a petition that has been dismissed, without prejudice, so that a petitioner may exhaust state remedies and then return to federal court for a full adjudication, on the ...