The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Jason Clark has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently serving two concurrent sentences of 25 years to life, concurrently with two sentences of 7.5 to 15 years at the Great Meadow Correctional Facility, Comstock, New York. Petitioner was convicted in County Court, Albany County, New York after entering a guilty plea to seven counts of an eight-count indictment: Murder in the Second Degree (felony murder); Murder in the Second Degree (depraved indifference); two separate counts of Attempted Robbery in the First Degree; Burglary in the Third Degree; Grand Larceny in the Fourth Degree; and Criminal Possession of Stolen Property in the Fourth Degree.*fn1 Respondent has filed an answer and Petitioner has filed his traverse.
Petitioner, at the time a few months past his 16th birthday, left his home armed with a .45 caliber Glock pistol he had obtained in an earlier burglary. Later in the evening Petitioner, in the company of two friends, entered a convenience store with the intent to rob it. Petitioner had his gun drawn at the time he entered the store. After entering the store an occupant, identified as possibly the owner or another clerk, started pelting with Petitioner with cans. During the ensuing melee Petitioner fired his gun twice killing the store clerk.
Petitioner appealed his conviction to the Appellate Department of the New York Supreme Court on the grounds that (1) the sentence he received was unduly harsh and should be reduced in the interests of justice and (2) illegal search and seizure in violation of his Fourth Amendment rights. The Appellate Department affirmed, People v. Clark, 684 N.Y.S.2d 673 (N.Y. App. Div.1999). The New York Court of Appeals denied leave to appeal without opinion on May 22, 1999, 715 N.E.2d 509 (N.Y.1999). His conviction became final 90 days later, Friday, August 20, 1999, when his time for petitioning the U.S. Supreme Court for certiorari expired; and his time to file a federal habeas petition expired one year later, Monday, August 21, 2000, unless the time were tolled. Pratt v. Greiner, 306 F.3d 1190, 1195 (2d Cir.2002).
The time for filing a federal habeas petition is tolled during the time that state post-conviction proceedings are pending. 28 U.S.C. § 2244(d)(2). On August 17, 2000, four days before his time to file a petition for federal habeas relief expired, Petitioner filed a motion for an order vacating judgment under N.Y. CRIM. PROC. LAW, § 440.10.*fn2 In that motion Petitioner asserted that he had been denied the effective assistance of counsel, alleging two bases: (1) the failure to investigate the circumstances surrounding his consent to the search of the apartment in which he was residing with his father; and (2) that counsel misrepresented the sentence that Petitioner would receive if he were to plead guilty. The Albany County Court denied Petitioner's motion without a hearing in a written decision on December 6, 2000, and the Appellate Department of the New York Supreme Court denied leave to appeal March 6, 2001. According to Petitioner's uncontradicted testimony during the time his petition for leave to appeal the decision was pending before the Appellate Department he was moved from the Great Meadow Correctional Facility to the Green Haven Correctional Facility, then back to Great Meadow. The notice that his petition for leave to appeal was denied was mailed to Green Haven and not received by Petitioner at Great Meadow until March 19. On March 22, 2001, Petitioner mailed the petition at bar, which was received by the Clerk of the Court March 26 and filed March 29, 2001.
Thus, if tolling stopped on March 6, 2001, when the Appellate Department denied leave to appeal, the petition is untimely. On the other hand, if the time was tolled until the date Petitioner received the notice of denial, the petition is timely. Consequently, the question of timeliness depends on whether the period March 6 through 19 was equitably tolled. To obtain equitable tolling, Petitioner must show that "extraordinary circumstances beyond his control prevented successful filing." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001) (internal quotation marks and citation omitted). However, the Court need not decide that issue.*fn3 The limitations period of 28 U.S.C. § 2244(d)(1) is not jurisdictional and must be pleaded as an affirmative defense. Acosta v. Artuz, 221 F.3d 117, 121--22 (2d Cir.2000). Although Respondent pleaded the statute of limitations as an affirmative defense, he does not raise or argue the issue in his Memorandum of Law accompanying the answer. Consequently, the Court may treat the defense as having been abandoned. See McCardle v. Haddad, 131 F.3d 43, 50-51 (2d Cir.1997) (holding that an affirmative defense is waived by failure to raise it in a timely and proper manner before the district court); cf. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.").*fn4
Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the Albany County Court was "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); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000), which in this case was that of the New York County Court, Albany County on his N.Y. CRIM. PROC. LAW § 440.10 motion. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
In his petition, Petitioner raises the same two ineffective assistance of counsel allegations he raised before the Albany County Court: (1) the failure to investigate the circumstances surrounding his consent to the search of the apartment in which he was residing with his father; and (2) that counsel misrepresented the sentence that Petitioner would receive if he were to plead guilty.
To demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985).
The Albany County Court noted that the guilty plea was part of a plea bargain and the "public interest is served by holding defendants to the bargains they have made." In denying his motion the Albany County Court observed that generally under New York law a defendant waives his right to a claim of ineffective counsel by entering a plea of guilty and that "it is not for the court to 'second guess' the trial strategy chosen by defense counsel so long as the defendant was afforded meaningful representation." Without an evidentiary hearing or addressing the merits of Petitioner's claims, the Albany County Court held:
In the case at bar, the defendant entered into and received the benefit of a knowing, intelligent, and voluntary plea agreement. Accordingly, the bargain the defendant made should be honored. Furthermore, given the greater penalty to which defendant was exposed -- 37 1/2 years to life imprisonment -- the plea bargain negotiated by counsel was favorable to the defendant, and significantly reduced his potential prison term. The Court concludes that defendant received meaningful assistance of counsel and the constitutional requirements have been met.
Respondent does not argue before this Court that Petitioner was denied relief in the state court on adequate independent state law grounds, choosing instead to address the case on the merits. The Court notes that, contrary to observation of the Albany County Court in ruling on Petitioner's CPL § 440.10 motion, the fact that Petitioner pleaded guilty does not constitute a waiver of his ineffective counsel claim under New York law under the facts of this case. It falls squarely within an exception to that rule recognized but found inapplicable in the case cited by the Albany County Court, People v. Bethany, 582 N.Y.S.2d 877 (N.Y.A.D.1992), where counsel's alleged ineffectiveness infected the plea bargaining process, i.e., that defendant entered a plea because of his attorney's poor performance. Moreover, it is questionable whether a Sixth Amendment claim of ineffective counsel that infects the guilty plea itself is waived by the entry of the guilty plea. See Oyague v. Artuz, 393 F.3d 99, 104--105 (2d Cir.2004) (holding that waiver of federal constitutional claims is determined under federal, not state, standards addressed on the merits the ineffective assistance of counsel claim in relation to the plea bargaining process); see also United States v. Oladimeji, 463 F.3d 152, 155 (2d Cir. 2006) (holding that while a waiver of the right to appeal precludes raising an ineffective assistance of counsel issue on direct appeal, it may nonetheless be raised in a habeas petition to set aside the plea).
This Court is also troubled by the characterization of the plea as being the product of a plea bargain or agreement. The transcript of the plea colloquy clearly shows that it was not the result of a plea bargain (emphasis added).
THE COURT: All right. Before I turn it over to Ms. Coleman [prosecutor] for her comments before I commence this plea colloquy, I just want to make a statement for the record. This is an eight count indictment. I concur with Mr. Ackerman [defense counsel] that his client has an absolute right to enter a plea of guilty to the entire indictment so long as there are no promises being made. So "a plea bargain"is not being entered into at this time.
I will note for the record that the first three counts of this indictment all are different theories of murder. All are murder counts in the second degree. It is my belief that if this matter were to have gone to a jury trial, that the defendant could conceivably have been convicted of the first count of this indictment, felony murder, but second count of this indictment is intentional murder, and the third count of this indictment is depraved indifference murder. It is my belief that I would not have been able to allow the ladies and gentlemen of the jury to come back and return a verdict of guilty to both the intentional and depraved indifference murder.
Thereby, it would seem to me that your client's ability to enter a plea of guilty to this entire indictment would mean that he would enter a plea of guilty to the first count, the third count, depraved indifference murder and all of the remaining counts and in a sense, it would be the duplicate equivalent of entering a plea of guilty to counts [sic] one, count three, count four through eight, but enter a plea of guilty to count two -- counts two and three being mutually exclusive, but I ask you, Ms. Coleman, at this point in time if you wish to make any statement whatsoever about what I have just said with regard and prior to my actually engaging in the plea allocution with Mr. Clark?
MS. COLEMAN: No, Your Honor. Your Honor and Mr. Ackerman have both accurately stated what's taken place here. I just wanted to make very clear for the record and for all concerned that Mr. Clark is pleading guilty to the indictment because it is his right to do so because the People cannot stop him from doing so and because the People have refused at all stages in this proceeding to engage in plea bargaining.
The transcript shows that not only was the plea not the result of any bargain but, in addition, the outcome of the plea was identical to the maximum outcome that could have resulted had the case gone to a jury trial. That is, Petitioner could not have been convicted of any additional counts than those to which he entered a guilty plea. The transcript of the plea colloquy also makes clear that Petitioner received no promises or assurances of the sentence that would be imposed at sentencing.
THE COURT: Now, Mr. Ackerman indicates to me that you are prepared, in essence, to enter a plea of guilty to the entire indictment against you with the understanding that there are no promises being made here with regard to what the sentence will be other than it will be within the statutory framework of my obligations with regard to the law and what you're pleading guilty to. Do you understand that?
THE DEFENDANT: Not entirely.
THE COURT: Well, what portion of it do you not understand? You're entering a plea to this entire indictment with no promises being ...