The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Dennis Larweth ("Larweth" or "petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on August 6, 2001, in Cattaraugus County Court following a guilty plea to one charge of attempted assault in the first degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
II. Factual Background and Procedural History
The conviction here at issue stems from the beating inflicted by Larweth upon his girlfriend, Carol Doak ("Doak" or "the victim"), on February 28, 2001. On that date, Larweth entered Doak's home and punched and kicked her repeatedly, primarily in the head and face. See Exhibit ("Ex.") D at 6-7, Respondent's Appendix of Exhibits ("Resp't Ex."). Doak sustained serious injuries, including a fractured maxillary sinus and orbital wall, a blow-out fracture of the orbital floor, a hematoma of the left adenoid and maxillary sinuses, and multiple bruises and abrasions. See Resp't Ex. B at 47-48. Larweth was indicted on one count of first degree burglary (N.Y. Penal Law § 140.32(2)), a class B felony; and two counts of first degree assault (N.Y. Penal Law § 120.10(1), (4)), a class B felony. On June 18, 2001, petitioner accepted an offer to plead guilty to one count of attempted first degree assault in full satisfaction of the indictment in exchange for a waiver of his appellate rights and a sentencing cap of twelve years. See Resp't Ex. D at 2-6. On August 1, 2001, the prosecutor filed its notice of intent to request that Larweth be sentenced as a second felony offender. See Resp't Ex. B at 73. Sentencing took place on August 6, 2001, and the trial court imposed the agreed-upon sentence of a determinate term of twelve years, in accordance with the prosecutor's sentencing promise. See Resp't Ex. E at 6. On August 9, 2001, Larweth filed a pro se motion to vacate his sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, alleging that (1) his due process rights were violated at sentencing by "'Jenna's Law', (post supervision) [sic]"*fn1 ; (2) his predicate felony status was obtained in violation of his constitutional rights; and (3) his guilty plea was involuntary. See Resp't Ex. B at 122; see also Petitioner's Traverse ("Trav.") at 5, ¶11 (Dkt. #10). The trial court denied the motion on September 7, 2001. See Resp't Ex. B at 124-25. Leave to appeal the denial of this motion was denied by the Appellate Division.
On September 30, 2001, the Appellate Division, Fourth Department, of the New York State Supreme Court denied Larweth's application to proceed in forma pauperis because defense counsel had failed to file a notice of appeal. Thereafter, Larweth filed an application for permission to file a late appeal, which was granted. The Appellate Division directed new defense counsel to file and serve a late notice of appeal on or before January 21, 2001. On or about September 22, 2002, appellate counsel filed a brief on behalf of Larweth, arguing that (1) "[a]s [petitioner's] plea bargain was not properly enforced, his waiver of his right to appeal is unenforceable and he must be allowed to withdraw his plea of guilty" or be excused from his appellate-rights waiver; (2) the plea colloquy did not establish the requisite element of a "dangerous instrument" for purposes of N.Y. Penal Law § 120.10(1) (assault with intent to cause serious physical injury by means of a deadly weapon or dangerous instrument); (3) petitioner's plea was not knowing and voluntary because he was not informed of the five-year period of post-release supervision mandatorily added to his determinate twelve-year term of incarceration; (4) the trial court erred in sentencing petitioner as a predicate felon (second felony offender); and (5) his twelve-year determinate sentence was harsh and excessive. See Resp't Ex. A.
The People, in opposition, argued that as to his first claim regarding the performance of his plea bargain, his failure to move to withdraw the plea rendered the issue unpreserved and, in any event, the claim was without merit since the period of post-release supervision was not within the control of the sentencing court, the court did not violate its part of the plea bargain. Accordingly, the People argued, there was no basis to release Larweth from his agreed-upon waiver of his appellate rights. The People argued that the issue relating to factual insufficiency of the plea colloquy was encompassed within his valid waiver of his appellate rights. As to the claim that his plea was involuntary due to the trial court's failure to inform him of the period of post-release supervision, the People asserted the lack of preservation based on petitioner's failure to move to withdraw his plea, as well as the appellate rights waiver. The People further contended that petitioner was properly adjudicated as a second felony offender, and that his agreed-upon sentence was neither harsh nor excessive. See Resp't Ex. F.
The Appellate Division unanimously affirmed Larweth's conviction on March 21, 2003. People v. Larweth, 303 A.D.2d 1029 (App. Div. 4th Dept. 2003); Resp't Ex. G. Leave to appeal to the New York State Court of Appeals was denied. People v. Larweth, 99 N.Y.2d 656 (N.Y. 2003); Resp't Ex. H. Larweth then moved, pro se, to vacate the judgment pursuant to C.P.L. § 440.10 on September 19, 2003, arguing that (1) trial counsel was ineffective because he "completely failed to advise defendant of post-release supervision; to the very contrary, defense counsel mis-advised defendant that he would receive an indeterminate sentence of 12 years at top, and his minimum jail time would be 4 to 12 years" and that (2) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal despite being requested to do so. See Resp't Ex. I. The trial court denied the motion on October 21, 2003, stating that it did "not understand why failing to advise a pleading defendant of the period of post-release supervision after a determinate sentence is any different than advising a defendant of parole supervision after an indeterminate sentence." Resp't Ex. K at 2. The trial court noted that "some courts have apparently held that defendants must be told of the parole supervision period after a determinate sentence is served," it did "not see a distinction." Id. at 3. Finally, the trial court stated that it was "unaware of any authority holding the failure to advise a defendant of a period of post-release supervision, even if that were the case, rises to the level of ineffective assistance of counsel." Id. Accordingly, the trial court held, the C.P.L. § 440.10 motion was "in all respects denied." Id. Petitioner sought leave to appeal the denial of the C.P.L. § 440.10 motion. See Resp't Ex. L. The People opposed this application. See Resp't Ex. L.
This habeas petition followed in which Larweth claims the following grounds for relief, all of which were raised on direct appeal or in support of his collateral motions for vacatur: (1) the mandatory period of post-release supervision renders his plea bargain not properly enforceable because he cannot receive his bargained-for twelve-year sentence; (2) his plea colloquy did not establish the "dangerous instrument" element of the offense of attempted first degree assault with a deadly weapon or dangerous instrument; (3) his plea was not knowing and voluntary because the trial court erred in failing to inform him, prior to his plea, of the mandatory five-year period of post-release supervision to be added to his sentence; (4) the trial court erred in sentencing him as a predicate felon (second felony offender); (5) trial counsel was ineffective in failing to inform him that his sentence contained a mandatory five-year period of post-release supervision; (6) trial counsel was ineffective because he falsely represented that petitioner only would have to serve 4 years of an indeterminate sentence; and (7) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal. See Petition ("Pet.") at 7-8, and unnumbered page titled "Additional Grounds" (Dkt. #1). Respondent concedes that all of the grounds raised in Larweth's habeas petition are fully exhausted pursuant to 28 U.S.C. § 2254(b)(1). Respondent's Memorandum of Law ("Resp't Mem.") at 4 (Dkt. #8). For the reasons set forth below, Larweth's petition for a writ of habeas corpus is granted in part and denied in part.
The filing of Larweth's petition post-dates the amendment of the federal habeas corpus statute on April 24, 1996, by the enactment of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to AEDPA, when a state court has adjudicated a habeas petitioner's claims on the merits, habeas relief may not be granted unless the state court's holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or was based on unreasonable determination of the facts in light of the evidence presented in petitioner's state court proceeding. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Respondent contends that Larweth's claim regarding the voluntariness of his guilty plea is procedurally defaulted under the "adequate and independent state ground" doctrine because he failed to properly preserve the claim for appeal by moving to withdraw the plea. On direct appeal, the appellate court held that "[b]ecause defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground, he has not preserved his contention for our review[.]" People v. Larweth, 303 A.D.2d at 1030 (citing People v Perillo, 300 A.D.2d 1097 (App. Div. 4th Dept. 2002); People v Moore, 300 A.D.2d 1085 (App. Div. 4th Dept. 2002); People v Kazmirski, 299 A.D.2d 826 (App. Div. 4th Dept. 2002)). Respondent contends that the appellate court relied upon an adequate and independent state ground to dismiss the claim as procedurally barred, thereby precluding further federal habeas review of the claim by this Court. See Resp't Mem. at 4-5 (Dkt. #8).
The Supreme Court has held that federal courts shall "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). "This rule applies whether the state law ground is substantive or procedural." Id. (citations omitted). The independent and adequate state ground doctrine may bar federal habeas review "when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement" for in such cases "the state judgment rests on independent and adequate state procedural grounds." Id. (citing, inter alia, Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)). Thus, an adequate and independent finding of procedural default precludes federal habeas review of the federal claim, unless the habeas petitioner can show "cause" for the default and "prejudice" attributable thereto, Murray v. Carrier, 477 U.S. 478, 485 (1986), or demonstrate that the failure to consider the federal claim on habeas will result in a "fundamental miscarriage of justice,"' id. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).
The Court agrees with respondent that the state appellate court relied upon an "adequate and independent state ground" in rejecting Larweth's contention regarding the voluntariness of his guilty plea. The procedural bar clearly was an "independent" ground since it was the sole basis for the state court's decision. Furthermore, as discussed below, it was a fully "adequate" basis for the decision.
"[A] procedural bar will be deemed 'adequate' only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "'firmly established and regularly followed'" must be judged in the context of "the specific circumstances presented in the case," and "of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). In New York, the "firmly established and regularly followed rule," Lee, 534 U.S. at 386, for preserving a claim that a guilty plea was involuntarily entered requires a defendant to move to withdraw the plea or to vacate the judgment of conviction. See People v. Hilliard, 832 N.Y.S.2d 461, 2007 WL 1147311, at *1 (App. Div. 3d Dept. Apr. 19, 2007) ("[D]efendant's assertion that his guilty plea was involuntarily entered is unpreserved for our review in light of his failure to move to withdraw the plea or vacate the judgment of conviction[.]"); People v. Smith, 34 AD3d 1127, 1127 (App. Div. 3d Dept. (2006)); People v. Peterson, 35 A.D.3d 1195, 1196 (App. Div. 4th Dept. 2006) ("Although the contention of defendant that his plea was not knowingly, voluntarily or intelligently entered survives the waiver of the right to appeal, by failing to move to withdraw his plea or to vacate the judgment, defendant failed to preserve that contention for our review[.]"); People v. Johnson, 25 A.D.3d 331, 331 (App. Div. 1st Dept. 2006) ("Since defendant did not move to withdraw his plea, his challenge to the plea's voluntariness is unpreserved[.]").
As noted above, the procedural rule requiring a motion to withdraw the plea to preserve a claim of involuntariness constituted the appellate court's sole basis for decision in Larweth's case, and, as the foregoing cases make clear, compliance with the rule was demanded in the circumstances presented here. See id. Furthermore, Larweth completely failed to comply with the procedural rule. See id. Thus, the procedural bar relied upon by the appellate court in this case was "firmly established and regularly followed," and therefore constitutes an adequate state ground barring review of the merits of Larweth's claim. Accord, e.g., Antiqua v. Giambruno, No. 05 Civ. 2681 WHP/GWG, 2006 WL 800742, at *8 (S.D.N.Y. Mar. 30, 2006) (Report and Recommendation); Brea v. New York City Probation Dept., No. 03 Civ.4822(RJH)(GWG), 2004 WL 389011, *8 (S.D.N.Y. Mar. 3, 2004) (Report and Recommendation).
The Court next must consider whether there exists "cause" for Larweth's procedural default of this claim and, in addition, whether he will be suffer "prejudice" as a result of being precluded from asserting this claim on habeas review. To claim that attorney error excuses a procedural default, a habeas petitioner must either have properly presented and exhausted an ineffective assistance of counsel claim in the state courts, Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000), or, if the ineffective assistance of counsel claim is itself procedurally barred, separately show that there is "cause" excusing said procedural default as well as prejudice resulting from the error, id. at 452-53. Here, Larweth properly presented and exhausted his claim of ineffective assistance of counsel since he claimed in support of his C.P.L. § 440.10 motion that trial counsel was ineffective in failing to inform him that his sentence included a mandatory five-year period of post-release supervision. The issue becomes whether that omission amounts to the effective denial of representation to which Larweth is entitled under the Sixth Amendment of the Constitution.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for evaluating whether the assistance rendered by a petitioner's attorney was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Counsel's performance is to be judged by an "objective" standard of "reasonableness," id. at 688, and "[j]udicial scrutiny of counsel's performance must be highly deferential" with the reviewing court making "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time[,]" id. at 689. Because there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," the petitioner must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689 (citation omitted); accord, e.g., Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).
The second prong of the Strickland standard requires the petitioner to demonstrate that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 687. In the context of a guilty plea, the "prejudice" requires petitioner to show that counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, the reviewing court must ask whether there is a "reasonable probability" that, without the mistakes made by counsel, the petitioner still would have elected to plead guilty rather than proceed to trial. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Larweth states in his affidavit supporting his C.P.L. § 440.10 motion that "counsel failed to inform petitioner he would have to serve additional five years on top of twelve year promised sentence, in prison or on post supervision [sic]." Trav. at 14 (Dkt. #10). However, Larweth neither recites facts or details of the meetings and conversations he had with his attorney to support his claim, nor does he provide an affidavit from his attorney describing the advice counsel did or did not give. Thus, all Larweth has offered is a conclusory, self-serving statement, which "shows" nothing, and indeed is belied by his sworn statements in open court during the plea colloquy that he wished to take advantage of the certainty offered by a plea agreement.*fn2 His statements to the trial court clearly established that he understood the rights he was giving up and that he nevertheless wished to avail himself of the benefits offered by the plea agreement. Moreover, during the factual portion of the allocution, there was some discussion as to whether Larweth actually was wearing the work boots that the prosecution described as a "dangerous instrument" or whether he had been wearing tennis shoes at the time of the assault. When the trial judge commented that he "wouldn't want to go to trial [and chance that a jury would not find] that tennis shoes weren't a dangerous instrument if he kicked somebody in the face with them," and asked Larweth if that was "one of the reasons that he was entering the plea to take advantage of the plea offer. . .[and] [t]ake the C [felony] rather than go to trial on the B [felony] . . . [a]nd reduce your liability accordingly?" Larweth affirmatively responded, "Exactly, your Honor[,]" and "Exactly[,]" and "Yes." See Resp't Ex. D at 5.
As to the "prejudice" requirement, Larweth asserts that he "has suffered severe prejudice because he should have been full [sic] informed of all pluses and minuses of the agreed upon sentence[.]" Trav. at 14, Section III titled "Argument" (Dkt. #10). With regard to whether the post-release supervision actually affected his decision to plead guilty, Larweth has provided nothing except his own equivocal statement that he "may not have pleaded guilty to any sentence beyond twelve years promised[.]" Id. (emphasis supplied). The Court finds it significant that
The Court: Other than the things we have spoken about here, has anyone promised you anything to get you to plead guilty?
The Defendant: No, your Honor.
The Court: Has anyone threatened you?
The Court? Are you doing this voluntarily?
Larweth has never stated that he would not have pleaded guilty, or even that he probably would not have pleaded guilty, had he known about the five-year period of post-release supervision. Not only are Larweth's statements in support of his habeas petition wholly insufficient to establish that there is a "reasonable probability," that "he would not have pleaded guilty and would have insisted on going to trial[,]"Hill, 474 U.S. at 58, they are belied by Larweth's sworn averments to the trial court during his plea colloquy. See Resp't Ex. D at 3-6.
Had Larweth gone to trial and been convicted of three Class B felonies charged in the indictment (one count of first degree burglary and two counts of first degree assault), he faced three concurrent sentences of nine to twenty-five years in prison. N.Y. Penal Law § 70.06(3)(b); see also Resp't Mem. at 16 (Dkt. #8). Even if he were convicted only of the one count of attempted first degree assault to which he pleaded guilty, his sentence would have been the same--nine to twenty-five years. See id. On top of the nine to twenty-five years, Larweth then faced the mandatory period of post-release supervision of five years, unless the trial judge decided to reduce it to no less than two and one-half years, see N.Y. Penal Law § 70.45(2)--which was fairly unlikely, given Larweth's extensive criminal history. The Court observes that given the evidence against him, it was unlikely that the jury would have acquitted him. Hence, pleading guilty definitely was to Larweth's advantage. It is hard for this Court to believe that, in light of all the above factors pointing toward an unfavorable outcome, Larweth would have "insisted on going to trial." In short, Larweth provides no support whatsoever for his ineffective assistance clam except his conclusory, self-serving statements.
Accordingly, the Court finds Larweth has not met the rigorous standard under Strickland v. Washington and Hill v. Lockhart of demonstrating that defense counsel's failure to inform him of the period of post-release supervision objectively unreasonable and created a reasonable probability that, had he known of the post-release supervision, he would have chosen not to plead guilty and instead would have proceeded to trial. See Shabazz v. Perlman, No. 04 Civ. 4355(LAP)(DFE), 2005 WL 2105533, *7 (S.D.N.Y. Sept. 1, 2005) ("As to the 'prejudice' requirement [of Strickland], [petitioner] provides nothing except his own statement that he wouldn't have pleaded guilty if he knew about supervised release. But I note that his exposure if he went to trial and were convicted--even if only of the single charge he pleaded guilty to--would have been a determinate sentence of up to 15 years (see Penal Law § 70.02(1)(b) and (3)(b)) ([Section] 265.03 is a Class C violent felony), plus the mandatory post release supervision of 5 years, unless the judge decided to reduce it to no less than 2 1/2 years, Penal Law § 70.45(2). Given the evidence, it was unlikely that he might be acquitted. Hence pleading guilty was definitely to his advantage. It is hard to believe his self-serving protestation that he would have 'insisted on going to trial.' In short, [petitioner] provides no support at all for his ineffective assistance clam except his conclusory, self-serving statements."). Thus, this Court declines to grant habeas relief on Larweth's claim that he was denied the effective assistance of counsel because his attorney failed to advise him of the mandatory term of post-release supervision. Therefore, his attorney's alleged ineffectiveness in failing to inform him that his bargained-for sentence included a mandatory period of five-year period of post-release supervision was not ineffective assistance within the meaning of the Sixth Amendment sufficient to excuse the procedural default of his claim that his guilty plea was involuntary.
Furthermore, Larweth cannot take advantage of the "fundamental miscarriage of justice" exception to the procedural default, which requires a showing that the constitutional error in his plea colloquy "'has probably resulted in the conviction of one who is actually innocent.'" Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986); accord, e.g., St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004)). To establish actual innocence, Larweth must come forward with "new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial[,]" demonstrate that "in light of all th[is] evidence," "it is more likely than not[,]" that "no reasonable juror" would have convicted him." Schlup v. Delo, 513 U.S. 298, 323, 327, 328 (1995) (quotation omitted); accord Boulsey, 523 U.S. at 623. Larweth has not come forward with any evidence that he is actually innocent of the crime to which he pleaded guilty. Habeas review of the claim therefore is unavailable due to the unexcused procedural default. Accordingly, it is dismissed on that basis.
In any event, even if the Court were to consider the substance of the claim regarding the voluntariness of petitioner's guilty plea, it would find it to be without merit. The "test for determining the [constitutional] validity of guilty pleas . . . was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31(1970); accord, e.g., Kelleher v. Henderson, 531 F.2d 78, 81 (2d Cir. 1976); Wilson v. McGinnis, 413 F.3d 196, 198-99 (2d Cir. 2005). In assessing the constitutional validity of a state court guilty plea where the defendant has been given sentencing misinformation, the Second Circuit has explained that the test is "whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea." Williams v. Smith, 591 F.2d 169, 172 (2d Cir. 1979) (citing Caputo v. Henderson, 541 F.2d 979 (2d Cir. 1976); Kelleher v. Henderson, 531 F.2d at 81).
Addressing the first part of that test, it is undisputed that Larweth was not in fact aware that a mandatory period of five years of post-release supervision was going to be administratively added to his twelve-year sentence. However, based on all of the information in the record presently before it, and for all the reasons discussed elsewhere in this Decision and Order, the Court cannot find that had Larweth been provided with "accurate information" about the post-release supervision it would have made any difference whatever in his decision to plead guilty. See, e.g., Kelleher v. Henderson, 531 F.2d at 82. In particular, the Court notes that Larweth faced a potential twenty-five-year sentence under the class B felony charges in the original indictment, and respondent indicates that it has sealed information regarding petitioner's criminal record which possibly could have allowed him to be sentenced as a persistent felony offender and receive an even longer sentence. See Resp't Mem. at 16 & n. 6 (Dkt. #8). Moreover, given the strength of the prosecution's evidence against petitioner and the brutality of his assault on the victim, Larweth was not likely to prevail at a jury trial. In light of these circumstances, the Court cannot believe that Larweth would have rejected the plea deal offered by the prosecution. The Court is even more incredulous that he would have chosen to take his case to trial had he been told that his "actual sentence" would include a period of post-release supervision. This claim therefore lacks merit and does not provide a basis for habeas relief.
C. Analysis of the Remaining Claims Raised in the Petition
As bases for finding that his conviction was unconstitutionally obtained and that he is entitled to a writ of habeas corpus, Larweth asserts that the mandatory period of post-release supervision renders his plea bargain not properly enforceable because he cannot receive his bargained-for twelve-year sentence; his plea colloquy did not establish the "dangerous instrument" element of the offense of attempted first degree assault with a deadly weapon or dangerous instrument; the trial court erred in sentencing him as a predicate felon (second felony offender); and trial counsel was ineffective in failing to inform him that his sentence contained a mandatory five-year period of post-release supervision, falsely representing that petitioner only would have to serve four years of an indeterminate sentence, and failing to move to withdraw the plea or to file a notice of appeal.
Ground One: The plea bargain was unenforceable because the trial court failed to inform petitioner of the period of post-release supervision.
As his first ground for habeas relief, Larweth states as follows: Plea bargain was not properly enforced waiver unenforceable [sic], must be allowed to withdraw plea. This contention is the issue of unilateral imposition of an additional consequent [sic] of the sentence imposed by the Department of Correctional services which was not a part of, nor at any time discussed either during the plea agreement or imposition of the sentence.
Pet. at 7, ¶22-A (Dkt. #1). This is the only argument Larweth makes in support of this ground. Respondent has not specifically addressed this contention in his memorandum of law.
This claim corresponds to the first point raised by appellate counsel on direct appeal, in which counsel argued that "[a]s Mr. Larweth's plea bargain was not properly enforced, his waiver of his right to appeal is unenforceable and he must be allowed to withdraw his plea of guilty." Resp't Ex. A at 8. Apparently, the claim was in the nature of a request for specific performance. As a matter of both federal and state law, it is well settled that, when the prosecution breaches a plea agreement, a defendant's remedy is either specific performance of the plea agreement or an opportunity to withdraw his guilty plea. United States v. Alexander, 869 F.2d 91, 94 (2d Cir. 1991) (citing Santobello v. New York, 404 U.S. 257, 262-63 (1971); United States v. Brody, 808 F.2d 944, 947 (2d Cir. 1986); United States v. Abbamonte, 759 F.2d 1065,1071-72 (2d Cir. 1985)); see also People v. Auslander, 146 A.D.2d 936, 936 (App. Div. 3d Dept. 1989) (citing People v. Schultz, 73 N.Y.2d 757, 758 (N.Y. 1998)).
On Larweth's appeal, appellate counsel argued that "specific performance of the bargained for sentence [wa]s not possible" because the "absence of . . . post-release supervision [which was automatic and mandatory under N.Y. Penal Law § 70.45] would make the sentence illegal." Resp't Ex. A at 9. Thus, the remedy appellate counsel sought was to have Larweth relieved from having the appellate court "selectively enforce the other portions of the alleged bargain (i.e., . . . the waiver of the right to appeal . . . )." Id. The state appellate court, on direct appeal, only addressed this claim to the extent that it "conclude[d] that the valid waiver by defendant of ...