The opinion of the court was delivered by: Garaufis United States District Judge
Pro se petitioner Angel Curras ("Curras") brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently incarcerated in Mid-State Correctional Facility, New York. Curras challenges his conviction rendered upon a plea of guilty in New York Supreme Court, Kings County, for Burglary in the Second Degree (New York Penal Law § 140.25), as well as his sentencing as a second violent felony offender. For the reasons set forth below, his petition is DENIED.
A. Guilty Plea and Sentencing
In September and October 2000, several apartments were broken into and burglarized on Montgomery Place, President Street and Lincoln Place in Brooklyn. (Respondent's Appellate Brief (hereinafter "Resp. Br.") at 2.) On October 31, 2000 Petitioner was observed at one of the burglarized locations by a police officer and apprehended after a chase. (Id.) Petitioner was charged with four counts of Burglary in the Second Degree and Burglary in the Third Degree and two counts of Petit Larceny and Criminal Mischief. (Id. at 3.) On January 15, 2002, Petitioner withdrew a speedy trial motion he had filed pursuant to N.Y. Criminal Procedure Law ("C.P.L.") § 30.30, waived his right to appeal his conviction and pled guilty to one count of Burglary in the Second Degree. (Id. at 3-5.) In February 2002, Petitioner filed a motion pursuant to N.Y.C.P.L. § 220.60 to vacate his judgment of conviction, claiming that he was coerced into pleading guilty and that a viable N.Y.C.P.L. § 30.30 motion could have been filed. (Id. at 5-6.) On May 6, 2002, the court denied Curras's motion to vacate the judgment of conviction. (Id. at 6.) On May 14, 2002, Curras was sentenced as a second violent felony offender to seven years in prison and five years of post-release supervision. (Id.)
Petitioner appealed his conviction to the Appellate Division, Second Department. (Petitioner's Petition for Writ of Habeas Corpus (hereinafter "Habeas Pet."), at 2.) Curras appealed the judgment on the grounds that: (1) his waiver of appeal was unenforceable as unknowing, unintelligent and involuntary; (2) he made no factual admission of guilt and therefore his plea was unenforceable; (3) he was illegally sentenced as a second violent felony offender; (4) he was not informed that he was subject to post-release supervision, rendering his guilty plea and sentence involuntary; (5) the trial court improperly ignored his C.P.L. § 30.30 motion to dismiss, thus depriving him of due process and a speedy trial; and (6) the trial court improperly denied his motion to withdraw his guilty plea. (Id. at 2-3.)
On November 10, 2003, a four-judge panel of the Appellate Division affirmed Curras's conviction. People v. Curras, 1 A.D.3d 445, 766 N.Y.S.2d 892 (2d Dep't 2003). The Appellate Division held that Petitioner's waiver of his right to appeal precluded review of his challenge to the factual adequacy of his plea allocution and his speedy trial claim. Id. at 446. The Appellate Division also held that the trial court properly denied his motion to withdraw his guilty plea as he "knowingly, intelligently, and voluntarily pleaded guilty, and the record does not support his conclusory claims of coercion and ineffective assistance of counsel." Id. (citations omitted). The Appellate Division found that Petitioner's remaining contentions were either unpreserved for appellate review or without merit. Id.
Curras then sought leave to appeal to the New York Court of Appeals. (Habeas Pet., at 3.) In his leave application he requested review of the issues he had raised on direct appeal. (Id.) On February 13, 2004, the Court of Appeals denied Curras' leave to appeal. People v. Curras, 1 N.Y.3d 626, 777 N.Y.2d 25 (2003).
Curras filed this timely petition for a writ of habeas corpus on February 14, 2005.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that 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) resulted in a decision that 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). Thus, a prisoner seeking a writ of habeas corpus must allege that his conviction or sentence in state court violates constitutional or other federal rights.
In clarifying these provisions, the Second Circuit has explained that an "adjudication on the merits" means one "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). The Supreme Court has explained that the "contrary to" standard means that a district court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000). The Court elaborated: "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Under the exhaustion requirement of 28 U.S.C. § 2254(b)(1), a state prisoner petitioning for a federal writ of habeas corpus generally must have first presented his claim to the state's highest court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). In New York, this means that a defendant, having first appealed to the Appellate Division of the Supreme Court, must then seek leave to the Court of Appeals to review his conviction pursuant to N.Y.C.P.L. § 460.20 (McKinney 1994). See id. However, if the petitioner no longer has "remedies available" in ...