The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, James Baker, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Livingston County Court following a guilty plea to charges of first degree sexual abuse, first degree aggravated unlicensed operation of a vehicle, and driving while ability impaired. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The lengthy and somewhat convoluted procedural history of petitioner's state court convictions is thoroughly and clearly set forth in respondent's memorandum of law. See Respondent's Memorandum of Law at 1-5 (Docket No. 7). For purposes of disposing of the instant petition, the Court shall begin its review of the procedural history of petitioner's case in January 2000. At that time, there were four indictments pending against petitioner in Livingston County that are of relevance here. The first one, Indictment No. 99-006, arose from petitioner's arrest on November 7, 1998, for driving while intoxicated ("DWI") in violation of New York Vehicle and Traffic Law § 1192. He had previously been convicted of DWI in 1989, and that conviction enhanced the November 7, 1998 offense to a felony. See N.Y. V.T.L. § 1193(c).
Petitioner was arrested on November 24, 1998, and charged with committing various sexual offenses against A.H. and J.H., the young daughters of his girlfriend with whom he was living. By indictment No. 99-019, he was charged with first degree course of sexual conduct against a child, second degree sexual abuse, third degree rape, and third degree sodomy; the top count of the indictment later was reduced by the trial court to second degree course of sexual conduct against a child. Indictment No. 99-019 alleged that petitioner had committed the crimes of second degree sexual abuse against A.H on or about May 10, 1998, and also that he committed the crimes of third degree rape and third degree sodomy against J.H., A.H.'s sister, in early July 1998. Respondent's Answer ("Resp't Ans."), Ex. BB at 8-10. The prosecutor later re-presented the case to the grand jury, which returned Indictment No. 99-249 charging petitioner with first degree course of sexual conduct against a child, based on petitioner allegedly having engaged in two or more acts of sexual conduct between October 1, 1996, and January 22, 1997, with A.H when she was ten years-old. Upon motion of the prosecutor, these two indictments were consolidated.
On February 5, 1999, petitioner was arrested for driving while intoxicated and with a suspended license. Indictment No. 99-039 charged petitioner with two counts of driving while intoxicated ("DWI") and one count of aggravated unlicensed operation of a vehicle in the first degree ("AUO-1").
In the meantime, petitioner went to trial on the charges relating to the November 1998 DWI and was found guilty, on January 11, 2000, of all counts. (This conviction is not at issue in the present habeas petition.) It should be noted that, prior to this trial, the prosecutor, on several occasions, had extended to petitioner a plea offer of a six-year determinate sentence, which petitioner rejected. However, on January 19, 2000, petitioner accepted the offer to plead guilty to AUO-1 and driving while ability impaired ("DWAI") in satisfaction of Indictment No. 99-039 and also to first degree sexual abuse, a class D felony, in satisfaction of Indictment Nos. 99-019 and 99-249. As part of the plea agreement, petitioner waived his right to appeal and, on February 29, 2000, he signed a waiver of his right to appeal. Resp't Ans., Ex. X at 18; Ex. Q at 7-10, Ex. BB at 134.
Petitioner was sentenced to concurrent terms of imprisonment, the longest of which was six years. Even though petitioner had waived his right to appeal, he pursued a direct appeal of his convictions on the three indictments. The Appellate Division, Fourth Department, of New York State Supreme Court affirmed all of petitioner's convictions. Petitioner filed a motion to vacate pursuant to New York Criminal Procedure Law § 440.30 and an application for a writ of error coram nobis, both of which were unsuccessful.
This federal habeas petition followed in which petitioner raises four grounds for habeas relief. See Petition (Docket No. 1) and Traverse (Docket No. 12). Respondent answered the petition on April 30, 2004. Respondent did not waive the exhaustion requirement but noted that "a thorough discussion of petitioner's various challenges to his conviction would take nearly as long as an examination of the merits." Respondent's Memorandum of Law at 6 (Docket No. 7). The Court agrees and, in the interest of judicial economy, will proceed to consider the merits of the petition.
For the reasons set forth below, petitioner's request for a writ of habeas corpus is denied and the petition is dismissed.
The Court observes that petitioner has completed his sentence and was released from prison on February 9, 2005. A petitioner may file a petition for habeas relief only if he is "in custody." Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994) (citing 28 U.S.C. § 2254(a)). However, § 2254(a) requires only that "'the habeas petitioner be "in custody" under the conviction or sentence under attack at the time [the] petition is filed.'" Id. (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (in turn citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)); accord Spencer v. Kemna, 523 U.S. 1, 7 (1998) (holding that the "in custody" provision only requires that the petitioner be in custody at the time the petition is filed). Thus, because petitioner filed his habeas petition while he was incarcerated, he satisfies the "custody" requirement of § 2254.
The Supreme Court has held that a habeas petition challenging a criminal conviction is "not necessarily mooted when the petitioner is released from prison, as collateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist." Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002) (citing Pollard v. United States, 352 U.S. 354, 358 (1957); Sibron v. New York, 392 U.S. 40, 54-56 (1968) (citing deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences as examples of collateral consequences and asserting a presumption that these consequences attach to criminal convictions post-release)). Once a litigant's sentence has expired, however, "some concrete and continuing injury other than the now-ended incarceration or parole-some 'collateral consequence' of the conviction-must exist if the suit is to be maintained." Spencer, 523 U.S. at 7 (quoting Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)).
For petitioners such as Baker, who are challenging the validity of their convictions on federal habeas, the Supreme Court has "been willing to presume that a wrongful criminal conviction has continuing collateral consequences" so that their habeas petitions do not become moot after their release. Id. at 8 (emphasis added). In light of the presumption of collateral consequences applicable here, the Court finds that, notwithstanding his release from incarceration, petitioner's habeas petition presents a justiciable "case or controversy" for purposes of conferring subject matter jurisdiction under Article III, Section 2 of the United States Constitution.
To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Claims Raised in the Petition
Petitioner asserts in his petition that (1) his "conviction [was] obtained by plea guilty [sic] which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea"; (2) he was denied the effective assistance of trial counsel; (3) his conviction was "obtained by coerced evidence gained pursuant to an unconstitutional witness tampering by State and Judicial officials/officers"; and (4) his conviction was "obtained by the unconstitutional failure of the prosecution to disclose to the defendant ebidence [sic] favorable to the defendant." Petition, ¶¶22(A)- (D) (Docket No. 1). Respondent asserts that petitioner, as part of his plea bargain waived his right to appeal and therefore has waived all of his claims except the claim of ineffective assistance of trial counsel.
Legal Effect of Petitioner's Guilty Plea
In Tollett v. Henderson, the Supreme Court reaffirmed the principle articulated in the "Brady trilogy"*fn1 that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267 (1973). Once a defendant has pleaded guilty in open court to the offense with which he is charged, he may not subsequently raise independent claims relating to alleged violations of constitutional rights that occurred prior to the entry of the guilty plea. Id. (holding that a counseled guilty plea barred a state prisoner's claim of racial discrimination in the selection of the indicting grand jury); see also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (holding that a valid guilty plea barred review of claim of impermissible burden on the right to jury imposed by the structure of the Federal Kidnaping Act); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (holding that a valid guilty plea foreclosed review of allegations of coerced confessions); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) (same). Because a "plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence[,]" review of the conviction is "ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989); see also Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984) ("It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked."). In Tollett, the Supreme Court noted that "[t]he focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity." 411 U.S. at 266; see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (stating that relevant inquiry for the federal habeas court was whether the guilty plea "represent[ed] a voluntary and intelligent choice among the alternative courses of action open to the defendant"). If a petitioner pleads guilty based "on the advice of counsel, he must demonstrate that the advice was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. (quoting McMann, 397 U.S. at 771.
In general, then, a federal habeas court must limit its review to whether a petitioner's guilty plea was knowing, voluntary, and intelligent, and whether he received the effective assistance of counsel in making the decision to plead guilty. See, e.g., Mabry, 467 U.S. at 508; Tollett, 411 U.S. at 267. Here, the Supreme Court precedent discussed above forecloses this Court's consideration on habeas review of any claims other than those relating to the voluntary nature of petitioner's plea and whether he received the effective assistance of counsel in regard to his decision to plead guilty.*fn2 The Court will consider the voluntariness claim first.
1. Involuntariness of Guilty Plea
This claim centers on petitioner's plea of guilty to first degree sexual abuse. He states in his petition as follows:
At the time of plea [sic] I did not realize that offence was alledged [sic] to have happened in 1996 until I received the alledged [sic] witness/Victim's statement and expert witness's investigation report that I then put 2 togeather [sic] and realized I made a mistake in taking the plea. I was unable to do the Math in my head in the intimidating open Court. Now I know for sure I made a mistake.
Petition, ¶22(A) (Docket No. 1). Respondent points out that it is not clear what "mistake" petitioner is claiming to have made. See Respondent's Memorandum of Law at 9 n. 9 (Docket No. 7). In an attempt to decipher Baker's argument, respondent suggests several arguments that Baker might be making: that he did abuse the victim, but at a different time; that he did abuse the victim, but only after she turned eleven; or that he in fact abused the victim continuously, refraining only during the time-period for which he was prosecuted. See id. As respondent argues, regardless of how Baker's argument is parsed, it is wholly without merit because it is clear that at the time of the plea petitioner admitted under oath the incriminating facts that he now wishes to deny. Apart from petitioner's unsupported allegations, there is no basis for finding otherwise. As respondent notes, Indictment No. 99-019 clearly sets forth the elements of the charge of first degree sexual abuse, including the allegation that the victim was less than eleven years-old at the time of the crime. The indictment also specifies the victim's date of birth and indicates that the time period in question was October 1, 1996, to January 22, 1997. Respondent's Memorandum of Law ("Resp't Mem.") at 10 (Docket No. 7) (citing Resp't Ans., Ex. BB, pp. 9-10). Indictment No. 99-249, which was joined with No. 99-019, contains this information as well. Id. (citing Resp't Ans., Ex. BB, p. 8). Thus, as respondent asserts, from the moment that petitioner was formally charged, he was on notice as to the age element and the relevant time-frame for the sexual abuse charge. Furthermore, at the plea colloquy, the prosecutor explained the relevant time period again, and petitioner confirmed that he knew that the victim's birthday was in late January 1986, and that he engaged in sexual contact with her sometime before her eleventh birthday. See Resp't Ans., Ex. X (Plea Transcript at 16).
Moreover, the transcript from the plea hearing removes any doubts that petitioner did not know what he was doing when he pled guilty. At the hearing before Judge Cicoria in Livingston County Court on January 19, 2000, the prosecutor began by explaining the parties' understanding of the components of the plea agreement:
Mr. Moran: As a result of a number of conversations and discussions, it's my understanding that Mr. Baker has now decided to change his plea of not guilty to the DWI and AUO 1st case of tomorrow and the sex cases of February 16th. Upon a plea to DWAI, driving while ability impaired, and aggravated unlicensed operation of a motor vehicle in the first degree under 99-039, the court would sentence the defendant to a term of one-and-a-third to four years to be served concurrently or at the same time as the other sentences to be handed down on the prior conviction for DWI and related matters as well as the sentence to be handed down on the sex crimes. The sex crimes would be resolved by a plea to sexual abuse in the first degree, a D felony, in full satisfaction of both Indictments 99-019 and 99-249, the sentence to be six years determinate. That sentence will be as a second felony offender*fn3 where the second felony is a violent felony by statute. . . .
Resp't Ans., Ex. X (Plea Transcript at 2-3). Defense counsel then reviewed the discussions he had had with ...