The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pedro Heureaux (hereinafter "Heureaux" or "petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was charged with burglary, attempted robbery, criminal possession of a weapon and criminal use of a firearm. Pursuant to a negotiated plea agreement, petitioner pled guilty to one count of burglary in the first degree. On July 24, 2003, Judge Alan Honorof of the Supreme Court of the State of New York, Nassau County, sentenced petitioner to a term of imprisonment of five years, to be followed by two and one-half years of post-release supervision.
Petitioner challenges his conviction on the following grounds: illegal arrest, ineffective assistance of counsel and prosecutorial misconduct. Respondent moves to dismiss the petition due to petitioner's failure to exhaust his state remedies or, in the alternative, for denial of the petition as procedurally barred.
For the reasons set forth below, petitioner's request for a writ of habeas corpus is dismissed without prejudice, due to his failure to exhaust any of the claims raised in his petition by seeking leave to appeal to the New York Court of Appeals.
The following facts are adduced from the instant petition, the underlying record and the parties' affidavits.
On December 18, 2002, at approximately 3:51 p.m., petitioner approached 11 Margarite Avenue in Elmont, New York, a township in Nassau County. (Plea Transcript (hereinafter "Tr.") at 10.) Petitioner was accompanied by Felix Garcia ("Garcia"), who had a gun in his possession. (Id.) Petitioner claims that he planned to enter the home without permission and obtain cigarettes. (Id.)
Jacob Joseph ("Joseph"), the owner of the residence, answered the door. (Sternberg Affidavit in Opposition (hereinafter "Sternberg Aff.") ¶ 4.) Garcia displayed the gun as a threat, and a fight ensued. (Tr. 10.) During the fight, Garcia struck Joseph in the face with the weapon, and Joseph bit petitioner's hand. (Sternberg Aff. ¶ 4.) At that point, petitioner cursed and left the property with Garcia. (Resp.'s Ex. 1, Pet.'s Appellate Br., at 1)
Petitioner was apprehended shortly thereafter and admitted that he and Garcia had gone to Joseph's home with the intent to steal property. (Sternberg Aff. ¶ 4.)
Petitioner was charged with four counts of burglary in the first degree [N.Y. Penal Law § 140.20(1)], three counts of attempted robbery in the first degree [N.Y. Penal Law §§ 110.00, 160.15], criminal possession of a weapon in the third degree [N.Y. Penal Law § 265.02], criminal use of a firearm in the first degree [N.Y. Penal Law § 265.09], and assault in the second degree [N.Y. Penal Law § 120.05].
Pursuant to a plea agreement, petitioner pled guilty to one count of burglary in the first degree on June 12, 2003, in satisfaction of the indictment. (Tr. 12.) In accepting the plea agreement, petitioner withdrew his motions and waived his right to appeal. (Tr. 7.) On July 24, 2003, petitioner was sentenced to a term of imprisonment of no more than five years - the minimum term permissible by law - followed by two and one-half years of postrelease supervision. (Sentencing Transcript (hereinafter "Sent. Tr.") at 4.)
On March 28, 2006, petitioner appealed to the Appellate Division, Second Department, where his appointed appellate counsel filed a brief seeking relief pursuant to Anders v. California, 386 U.S. 738 (1967). (Sternberg Aff. ¶ 7.) Petitioner also filed a pro se supplemental brief, raising claims of illegal arrest, ineffective assistance of counsel, prosecutorial misconduct, and excessive sentence. (Id.) The Appellate Division affirmed Heureaux's conviction in a decision and order dated October 31, 2006, finding that Anders relief was unwarranted and ...