The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER DENYING HABEAS CORPUS
Petitioner Eric Wilson petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty to
Attempted Robbery (N.Y. Penal Law §§ 110/160.10), and was
sentenced on December 22, 1998 by the Supreme Court, Bronx
County, pursuant to his plea agreement, to a term of twelve years
to life. Since, at the time petitioner committed his crime, he
was on bail from a previous conviction, waiting to begin a
sentence of three to six years for selling narcotics, the
sentencing judge was required by law to sentence him
consecutively. N.Y. Penal Law § 70.25(2-b). Accordingly, the
sentencing judge ordered that petitioner's term of twelve years
to life should run consecutively to his term of three to six
Petitioner was not advised when he pleaded guilty that his
sentences were to run consecutively. He was advised only that his
prior convictions required him to be sentenced as a persistent
violent felony offender to an enhanced indeterminate term of
between twelve and twenty-five years, and life. Petitioner
demanded, upon hearing his sentence and the number of years that
it was to run, that he be allowed to withdraw his plea; "Why
can't I get my cop out back?" he cried. S Tr. at 9.*fn1 The court refused, holding
that his plea had been made knowingly and intelligently.
Petitioner now challenges his conviction on the ground that his
guilty plea was not made knowingly and intelligently, because the
trial court neglected to inform him that his sentence would run
consecutively to a previously ordered sentence. I hold that
petitioner's constitutional rights were not violated when the
sentencing judge refused to allow petitioner to withdraw his
plea. Petitioner knew that his sentence was a life sentence, and
that he would be sentenced to an indeterminate term of twelve to
twenty-five years minimum, and life. The fact that he could not
be considered for parole until after the fifteenth year, rather
than the twelfth year, of his term, in the context of what he was
told, did not rise to an infringement of his constitutional
rights. Furthermore, petitioner's plea agreement related to his
offense of attempted robbery, and did not mention the unrelated
prior offense of selling narcotics, nor provide whether he should
merit concurrent, rather than consecutive, treatment to a
previously ordered sentence. Petitioner did not have a
constitutional right to withdraw from his plea agreement.
On April 28, 1995, petitioner was arrested and charged with
selling narcotics to an undercover police officer, a Class E
felony. N.Y. Penal L. § 221.45. He pleaded guilty on October 7,
1997 in the Supreme Court, Bronx County, and was sentenced on
March 30, 1998 to a term of three to six years in prison. On
August 26, 1996, a year and four months after his crime of
selling narcotics, petitioner committed a second crime, robbery,
by pulling a gold chain from around another man's neck. He
committed the crime while he was on recognizance or bail with respect to his crime of selling narcotics, but prior to the
imposition of sentence for that crime. Petitioner pleaded guilty
to attempted robbery on September 15, 1998.
The court's allocution of petitioner in connection with his
plea of guilty made petitioner aware that he was subject to an
indeterminate term of 12 to 25 years, to life, and that the
"minimum sentence that I can sentence you to is 12 to life." P
Tr. at 60.*fn2 The court advised petitioner that his plea of
guilty to attempted robbery, "a violent felony offense," made him
a persistent violent felony offender, for he had "previously been
subjected to two or more predicate violent felony convictions,"
N.Y. Penal Law § 70.08(1)(a): attempted robbery in the second
degree in 1983, and robbery in the first degree in 1986. The
court explained to petitioner, "In your case you have been
convicted of two prior violent felony offenses and therefore,
this being a violent felony offense the minimum sentence I can
give you is 12 years, maximum life. Do you understand that." P
Tr. at 64. Petitioner answered "Yes." Id. Petitioner confirmed
that he had discussed the plea with his attorney, that no one had
forced him to plead guilty, and that no one had told him anything
other than that his sentence would be "minimum 12, maximum life."
At petitioner's sentencing, on December 22, 1998, the
prosecutor advised the court the sentence for attempted robbery
of twelve years to life was required to run consecutively to
petitioner's unexecuted sentence for selling narcotics of three
to six years. N.Y. Penal Law § 70.25(2-b). Petitioner, upon
hearing the sentence, complained vehemently that the prison term
was too long:
I don't feel I should just cop out to 12 years to
life. I'm 32 years old. I'll be 40 something when I
come home. I want a fair trial. I want a fair trial
so I can have my part. I have a fighting part in
this. I don't feel its right just to give me 12 to
life for a chain snatching that never took place.
Never got no chain or nothing like that. . . . There is no way I will take 12 years
to my life, you know what I'm saying, for something I
know I could fight and got a possible chance of
beating. I'm asking the mercy on the Court and
everybody else, that they please let me go to trial.
Please let me take this plea back. I did not do this.
S Tr. at 3-5.
Petitioner argued that there was little evidence of his guilt,
that he had repeatedly asserted his innocence, and that he was
pressured to plead guilty by his attorney. The court denied the
motion, pointing out that petitioner's asserted alibi was
demonstrably false, and that he clearly knew what he was doing
when he pleaded guilty. Petitioner did not mention the
consecutive aspect of the sentence in his argument to the court.
Petitioner appealed to the Appellate Division, First
Department, presenting two arguments: (1) that his plea was not
intelligent and knowing since the court failed to advise him that
the sentence would run consecutively to the earlier imposed
sentence; and (2) that his plea was involuntary based on his
assertions of innocence and impaired judgment. The Appellate
Division unanimously affirmed petitioner's conviction on the
merits, rejecting his argument that his plea was not voluntary.
People v. Wilson, 749 N.Y.S.2d 409 (App. Div., 1st Dept. 2002).
Leave to appeal to the Court of Appeals was denied. People v.
Wilson, 99 N.Y.2d 566, 784 N.E.2d 92 (N.Y. 2002).
In his petition to this court for a writ of habeas corpus,
petitioner claims that his guilty plea was not knowing and
intelligent because he was not informed that his sentence was to
run consecutively to his sentence for selling narcotics. II. Discussion.
The standard of review of a state court decision on a habeas
petition is to consider if the decision (1) "was contrary to or
involved an unreasonable application of clearly established
federal law, as determined by the Supreme Court of the United
States;" or (2) "was based on an unreasonable determination of
the facts in light of the evidence presented."
28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412-13
The petitioner must have exhausted the remedies available in
the state courts, unless "there is an absence of available State
corrective process," or "circumstances exist that render such
process ineffective to protect the rights of the applicant."
28 U.S.C. § 2254(b)(1)(A), (B). The petitioner must have "utilized
all available mechanisms to secure [state] appellate review of
the denial" of his claims, having made the state courts aware
that the United States Constitution was a basis for the requested
relief. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. ...