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August 18, 2004.

JOHN P. KEANE, Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner Santiago Padilla ("Padilla") filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Padilla pled guilty pursuant to a 1996 plea agreement in New York State Supreme Court, New York County (the "trial court"), to manslaughter in the first degree in violation of New York Penal Law § 125.20, and was sentenced to an indeterminate prison term of 11 to 22 years. In the instant petition, Padilla claims that his decision to plead guilty was based on erroneous advice from counsel regarding his eligibility for parole, and that consequently, his case was prejudiced by ineffective assistance of counsel in violation of the Sixth Amendment. John P. Keane (the "State") opposes Padilla's petition and argues that Padilla's claims are unexhausted and in any event meritless because Padilla has failed to demonstrate the actual prejudice that is an element of his substantive claim. For the reasons set forth below, Padilla's petition is denied. I. BACKGROUND*fn1

Padilla was arrested on July 10, 1994 for his role in the 1992 shooting and murder of three individuals. Padilla was charged with three counts of murder in the second degree in violation of New York Penal Law § 125.25 [1]; one count of conspiracy in the second degree in violation of New York Penal Law § 105.15; one count of criminal possession of a weapon in the second degree in violation of New York Penal Law § 265.03; and one count of criminal possession of a weapon in the third degree in violation of New York Penal Law § 265.02 [4]. On April 24, 1996, Padilla pled guilty to a reduced charge of first-degree manslaughter in exchange for a negotiated prison term and full satisfaction of the indictment. Under the terms of the agreement, Padilla waived any right to an appeal. On May 21, 1996, Padilla was sentenced to an indeterminate prison term of 11 to 22 years. Throughout his proceedings in New York Supreme Court, Padilla was represented by the same counsel.

  Since his conviction, Padilla has claimed that his plea was based on an inaccurate prediction that he would be eligible for parole in six years and eight months. In an affidavit dated June 9, 1997, Padilla's counsel acknowledged his error, explaining that he had miscalculated Padilla's parole schedule and that consequently, Padilla had not received accurate information regarding when he would be eligible for parole if he pled guilty pursuant to the plea agreement.*fn2

  In March 1998, Padilla appealed his sentence to the New York Supreme Court, Appellate Division, First Department (the "Appellate Division"). In his appeal, Padilla alleged that, contrary to his admission at the plea allocution, he was innocent of all charges. He further contended that his plea was the result of undue pressure and difficult circumstances, and urged the Appellate Division to reduce his sentence "in the interest of justice." Padilla's conviction was affirmed without opinion. See People v. Padilla, 688 N.Y.S.2d 372 (App. Div. 1st Dep't 1998). Padilla did not seek leave to appeal the decision to the New York Court of Appeals. Under New York law, Padilla's conviction became final on November 14, 1998.

  Following the conclusion of his direct appeal, Padilla filed the first of two pro se habeas petitions with this Court. Padilla's first petition, filed in 2000, alleged that his plea had been unlawfully induced or involuntarily made, and that he had been denied effective assistance of counsel in violation of the Sixth Amendment. In a Report and Recommendation dated December 4, 2000 (the "Report"), Magistrate Judge Andrew Peck found that Padilla's direct appeal had centered exclusively on the propriety of his sentence, and thus, the ineffective assistance and involuntary plea claims were unexhausted. See Padilla v. Keane, No. 00 Civ. 1235, 2000 WL 1774717 (S.D.N.Y. Dec. 4, 2000) The Report suggested that Padilla's petition be dismissed without prejudice as a consequence of his failure to fully exhaust the underlying claims in state court. The Report further noted that Padilla's claims should be brought before the state trial court as a collateral attack pursuant to New York Criminal Procedure Law ("CPL") § 440.10 ("§ 440.10"). After having received a copy of the Report, Padilla requested withdrawal of his habeas petition in order to file a § 440.10 application. In an Order dated December 19, 2000, this Court granted Padilla's request, adopted the Report, and dismissed Padilla's petition without prejudice to allow him to exhaust his state court remedies. (See App. at Ex. H.)

  Padilla subsequently filed a motion with the trial court to set aside his sentence under CPL § 440.20. In his motion, Padilla argued that his sentence was inappropriate given the circumstances surrounding his plea, and asked the state court for a sentence commensurate with the minimum term for manslaughter under New York Penal Law § 70.06. In response, the Assistant District Attorney assigned to Padilla's case (the "ADA") argued two grounds to deny Padilla's motion. First, the ADA explained that Padilla had previously raised his excessive sentence claim in his unsuccessful 1998 appeal to the Appellate Division, and thus, such a ruling on the merits procedurally barred him from raising it again.

  Second, the ADA noted that the particular relief sought in Padilla's motion was not available under CPL § 440.20. The ADA argued that claims of ineffective assistance of counsel may be granted only through a CPL § 440.10 motion to vacate a judgment, and thus Padilla was not entitled to such relief by way of a § 440.20 motion to set aside his sentence. The trial court denied Padilla's motion on March 23, 2001, citing the reasons set forth by the ADA. (See App. at Ex. K.) Padilla subsequently petitioned the Appellate Division for further review of his § 440.20 claims and was denied leave to appeal to that court on June 28, 2001. See People v. Padilla, Ind. No. 8291/94, 2001 N.Y. App. Div. LEXIS 7287 (App. Div. 1st Dep't June 28, 2001).

  Padilla filed the present petition for habeas relief with this Court on August 21, 2001.*fn3 In this petition, Padilla alleges that he was denied his right to effective assistance of counsel, and that his plea was based entirely on his counsel's erroneous promise that he (Padilla) would serve only six years of the 11 to 22-year sentence offered in the plea agreement. On April 27, 2004, while briefing on the instant petition was still pending, Padilla appeared before the New York State Division of Parole (the "Parole Board") for an initial release conference. During this appearance, the Parole Commissioner questioned Padilla on the details of his crime, his reasons for his participation in the murders, and his behavior since incarceration. Following the examination, the Parole Board denied Padilla parole and noted four factors as grounds for its decision: (1) the serious nature of Padilla's crime; (2) Padilla's escalating criminal history; (3) Padilla's lack of insight into his own criminality; and (4) the risk that an early release might so "deprecate the seriousness of . . . [Padilla's] crime as to undermine respect for the law." (App. at Ex. O.) Padilla's next parole hearing is currently scheduled for June 2006. II. LEGAL STANDARDS


  A petitioner in custody pursuant to a state court judgment is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254 (a). The purpose of federal habeas review is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal." United States ex rel. Radich v. Criminal Court of New York, 459 F.2d 745, 748 (2d Cir. 1972).

  1. Standard of Review

  Pursuant to the various sub-sections of § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, this Court's review is guided by certain restrictions on the nature and extent of review that a federal court can conduct in considering a habeas petition. Under § 2254, if a state court adjudicates a petitioner's federal claim on the merits, a federal court on habeas corpus review must defer to the state court's determination of that claim unless such adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

  A state court adjudicates a petitioner's federal claim "on the merits," and thus triggers the highly-deferential AEDPA standard of review, when it: (1) disposes of the claim on the merits; and (2) reduces its disposition to judgment. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). In so doing, the state court need not explicitly refer to either the particular federal claim or to any federal case law. See id. The only requirement is that ...

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