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March 3, 2004.

PABLO GIL, Petitioner, -v.- WILLIAM MAZZUCA, Warden, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


Following a plea of guilty to one count each of Criminal Possession of a Controlled Substance in the Second and Third Degrees in New York County Supreme Court, Pablo Gil was sentenced to a prison term of nine years to life. He is currently incarcerated pursuant to this judgment at the Otisville Correctional Facility. Gil now brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. For the reasons below, the petition should be denied.


  A. Gil's Arrest, Plea, and Sentence

  By indictment filed January 2, 1998, Gil was charged with one count of Conspiracy in the Second Degree, one count of Criminal Sale of a Controlled Substance in the First Degree, two counts of Criminal Possession of a Controlled Substance in the First Degree, and four counts of Criminal Possession of a Controlled Substance in the Third Degree. Indictment No. 10530/97, filed January 2, 1998 ("Indictment") (reproduced as Ex. A to Declaration of Darian B. Taylor, filed October 27, 2003 (Docket #10) ("Taylor Decl.")). These charges stemmed from an alleged Page 2 conspiracy between Gil, his wife, and others to import heroin from the Dominican Republic and Panama into the United States and distribute it in New York City. Id. at 1-3.

  Prior to this indictment, on September 12, 1997, a New York State Supreme Court warrant had been issued for Gil's arrest. He was arrested 10 days later in Florida and held for extradition to New York. See Complaint/Arrest Affidavit, dated September 22, 1997 (reproduced as Ex. B to Taylor Decl. at 14). Gil was released in Florida on December 23, 1997. See People's Response to Defendant's Omnibus Motion (undated) (reproduced in part as Ex. B to Taylor Decl. at 18). Following his indictment in New York State, Gil was arrested by local authorities in the Dominican Republic on or about March 12, 1998 based on the outstanding New York warrant. See Online Booking System Arrest Worksheet (reproduced as Ex. B to Taylor Decl. at 29), ¶¶ 20-21. He was subsequently returned to New York. See id. ¶ 11.

  Approximately a year later, on March 22, 1999, Gil appeared with counsel before New York State Supreme Court Justice William Wetzel to determine whether Gil or any of his co-defendants wished to accept the prosecution's plea offer often years to life. (Plea: Tr. 2). The court addressed the defendants:
Let me just be sure each of these defendants understands the situation.
You have had a lot of time to talk to your attorney about this case. You know that this case involves multiple counts of first degree possession and/or sale. . . . Possession in the first degree carries a minimum sentence of fifteen to life. There is no lesser sentence. There is nothing to talk about.
You also know the weight of the evidence in this case. It is considerable. Wiretap interceptions that the People suggest show[] that you were involved in this activity, as well as in this case there was a seizure.
. . . .
  Alright. You can go to trial and that's fine. You will have a jury, and they Page 3 will decide if you are found guilty in this kind of involvement.
The minimum sentence is fifteen to life. I want to be honest enough with you so you can make the right decision. This was a commercial enterprise. If they can prove that you did what they say you did you are not going to get the minimum sentence from me.
I wouldn't give a minimum sentence to someone who is engaged in trafficking narcotics, as well as swallow[ing] and bring[ing] narcotics up inside their bodies. That's serious business.
You should be confident in [trying] to make this decision in assuming that you will get upwards of twenty years if you are found guilty, because fifteen is the minimum, and this is a serious case. It has all those other aspects. The fact that you were using swallowers transporting through that method, all of that aggravates this case.
If you were in Federal custody you would get forty years. Now you are given the opportunity if you want to plead out and dispose of this case for fifteen years [sic]. I don't care if you do. I have to try something so I might as well try you people.
But, at least at the end I am going to be able to say to you: you understood not only from your attorney, not only from him, but I told you what would happen if you went to trial and lost. I told you what your options were if you didn't want to go to trial.
There it is. I don't pretend this is an easy decision to make, to sign up for ten to life. But, that is the situation you are in. If you can win this case, all well and good, you go right out the door, you're home. But, if you lose the case, remember what I said is going to happen. It would happen.
(Plea: Tr. 2-4). The court adjourned for lunch to allow Gil and his co-defendants the opportunity to consult with counsel. (Plea: Tr. 5).

  After the recess, Gil withdrew his plea of not guilty and entered a plea of guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree and one count of Criminal Possession of a Controlled Substance in the Third Degree, in full satisfaction of the indictment and in exchange for a sentence of nine years to life. (Plea: Tr. 5-12). On the record, Page 4 Gil admitted committing these two crimes and also provided details on the particular drug and person involved. (Plea: Tr. 6-8). He also stated that he understood he was giving up a number of rights, including the right to seek suppression of evidence, the right to a jury trial, the right to be convicted only upon proof of guilt beyond a reasonable doubt found by a unanimous jury, and the right to appeal. (Plea: Tr. 9-10). Gil also indicated that no other promises had been made to him other than that he would be sentenced to nine years to life, that nobody had threatened him or forced him to plead guilty, that he had discussed the matter with his attorney, and that he was entering the plea "voluntarily, of [his own] free will." (Plea: Tr. 8-9, 11). He acknowledged that a sentence of nine years to life was a "definite benefit." (Plea: Tr. 10-11).

  On April 1, 1999, Justice Wetzel sentenced Gil, as agreed, to consecutive prison terms of seven years to life and two to six years, for a total of nine years to life. (Sentencing: Tr. 2-3). It appears Gil filed a timely notice of appeal from that judgment, although the appeal was not perfected at that time. See Letter to Ronald Uzenski from District Attorney's Office, dated May 3, 2001 (reproduced in part as Ex. E to Taylor Decl.).

  B. The Section 440.10 Motion

  More than a year and a half after his sentencing, in December 2000, Gil filed a pro se motion to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Notice of Motion to Vacate Judgment Pursuant to CPL 440.10, dated December 2000 (reproduced as Ex. B to Taylor Decl. at 1). Gil argued that his conviction should be overturned for the following reasons: (1) the trial court lacked jurisdiction over him, (2) the prosecutor knowingly relied upon false material evidence, (3) the judgment violated the extradition treaty between the United States and the Dominican Republic, (4) trial counsel was Page 5 ineffective, and (5) "improper and prejudicial conduct occurred during the trial not appearing in the record." Affidavit of Pablo Gil in Support of Motion to Vacate, dated December 5, 2000 ("440.10 Aff") (reproduced as Ex. B to Taylor Decl. at 2-12), ¶ 7.

  Thereafter, without holding a hearing Justice Wetzel, in a written decision, denied the motion "in all respects." See Decision and Order, dated January 19, 2001 ("Decision") (reproduced as Ex. C to Taylor Decl.), at 1. Specifically, as to Gil's claim that he was illegally arrested in the Dominican Republic and brought to the United States by New York law enforcement authorities in violation of the extradition treaty between the two countries, the court found that, absent any complaint made by the government of the Dominican Republic, Gil had no standing to raise this allegation. Id. The court also stated that Gil "has offered no factual support for his claim that he was arrested in the Dominican Republic by New York authorities." Id. In any event, the court noted, "[h]e was brought back to this Court pursuant to a properly issued bench warrant, and he never challenged jurisdiction prior to admitting [his] guilt[]." Id. As for the ineffective assistance of counsel claim, the court detailed counsel's efforts "in securing a better plea than that originally offered by the People" and held that "[c]ounsel's representation throughout was adequate and meaningful." Id. at 2. Because Gil pled guilty prior to receiving all of the eavesdropping tapes, the court found any attack on the eavesdropping warrant "irrelevant." Id

  C. Gil's Appeal

  Gil moved for leave to appeal the trial court's denial of his motion to vacate and sought to have that appeal consolidated with his direct appeal. See Notice of Application Pursuant to CPL § 460.15, dated February 14, 2001 (reproduced as Ex. D to Taylor Decl. at 1-2). The Appellate Page 6 Division, First Department, granted both requests. See Certificate Granting Leave, dated May 17, 2001 (reproduced as Ex. F to Taylor Dec!.).

  Represented by new counsel, Gil raised the following issues in his brief to the Appellate Division:
1. Whether appellant's guilty plea was involuntary because it was entered after the court threatened to impose a heavier sentence if he were convicted after trial. U.S. Const., Amend. XIV; N.Y. Const., Art. 1, § 6.
2. Whether the court's summary denial of appellant's motion to vacate judgment pursuant to C.P.L. § 440.10 deprived him of due process of law. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6.
3. Whether appellant's aggregate 9 — year — to — life sentence for his convictions of possession of a controlled substance in the second and third degrees is excessive.
Brief for Defendant — Appellant on Direct Appeal and on Appeal of Denial of C.P.L. § 440.10 Motion, dated August 2001 ("Pet. App. Brief) (reproduced as Ex. H to Taylor Decl.), at 2. Gil's brief included a discussion regarding the alleged failings of his trial counsel. See id at 17, 21-22.

  The Appellate Division unanimously affirmed Gil's conviction on February 5, 2002, holding that Gil's claim that his plea was coerced was "unpreserved" and that his motion to vacate was properly denied without a hearing. People v. Gil, 291 A.D.2d 217, 217 (1st Dep't 2002). The court also addressed the merits of the underlying jurisdictional and ineffective assistance of counsel issues raised in the motion to vacate:

  Defendant failed to provide sufficient factual allegations to support his claim that his arrest in the Dominican Republic involved egregious misconduct warranting dismissal. Defendant's ineffective assistance claim was likewise unsubstantiated. The record establishes that defendant received meaningful representation within the context of a guilty plea, and that the issues that defendant faults his counsel for failing to raise would have been unavailing. Page 7

 Id. at 217-18 (citations omitted). Gil sought leave to appeal to the New York Court of Appeals, which was denied on May 10, 2002. ...

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