The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER*fn1
Pro se Petitioner Akeem Brown brings this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, on the grounds that (1) his guilty plea was involuntarily and unintelligently made; and (2) his sentence was unduly harsh and excessive. Dkt. No. 1, Pet. For the reasons that follow, the Petition is dismissed.
On April 5, 2002, Petitioner was charged with murder in the second degree (N.Y. PENAL LAW § 125.25(1)), criminal possession of a weapon in the second degree (N.Y. PENAL LAW § 265.03(1)), and criminal possession of a weapon in the third degree (N.Y. PENAL LAW § 265.02(4)), arising from two separate incidents that occurred in January 2002. State Ct. R. on Appeal (hereinafter "R."), Ex. A, Pet'r Appellate Br. at p. 2. On May 30, 2002, Petitioner pleaded guilty to one count of criminal possession of a weapon in the second degree in exchange for a determinate prison sentence of fifteen (15) years and three (3) years post-release supervision, full satisfaction of all three charges, and a promise from the prosecution that no charges would be brought against Petitioner in an unindicted robbery case. R., Plea Hr'g Tr., dated May 30, 2002, at pp. 4-7. In accordance with the plea, Petitioner was sentenced to fifteen (15) years incarceration with three (3) years post-release supervision. R., Sentencing Tr., dated June 20, 2002, at p. 17.
Petitioner filed a direct appeal to the New York State Supreme Court, Appellate Division, Fourth Department, on the same grounds raised in this Petition, which was denied. People v. Brown, 779 N.Y.S.2d 372 (App. Div., 4th Dep't 2004). Petitioner's application for leave to appeal to the Court of Appeals was also denied. People v. Brown, 818 N.E.2d 674 (N.Y. 2004).
On July 29, 2004, Petitioner filed a motion to vacate his conviction pursuant to N.Y. CRIM. PROC. L. § 440.10 on the grounds that his plea was involuntarily and unintelligently made due to ineffective assistance from his trial counsel. R. Ex. F, Pet'r Mot. to Vacate at p. 8. None of the ineffective assistance of counsel claims raised in Petitioner's § 440 motion have been raised in the instant Petition. See generally Pet. On September 19, 2002, the trial court denied Petitioner's motion to vacate without a hearing. R., Ex. H, Order Denying Pet'r § 440 Mot., dated Sept. 19, 2005, at p. 7. Petitioner did not appeal the denial of his § 440 motion. Pet. at ¶¶ 14-21.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
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); Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234679, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting that:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
B. Independent and Adequate State Grounds
Federal habeas review of a state-court conviction is prohibited if a state court rested its judgment 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, 728 (1991) (citations omitted); see also Harris v. Reed, 489 U.S. 255, 261-62 (1989); Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). "This rule applies whether the state law ground is substantive or procedural." Coleman v. Thompson, 501 U.S. at 729 (citation omitted). The independent and adequate state ground doctrine is jurisdictional, thus, if the state court "explicitly invokes a state procedural bar rule as a separate basis for decision[,]" the federal court is precluded from considering the merits of federal claims in a habeas petition. Harris v. Reed, 489 U.S. at 264 n.10.
In the case at bar, the Appellate Division dismissed Petitioner's claim that his plea was involuntarily and unintelligently entered into because he had failed to preserve that claim by making a timely motion to withdraw his plea or vacate the judgment.*fn2 People v. Brown, 779 N.Y.S.2d 372 (citing People v. Lopez, 525 N.E.2d 5, 6 (N.Y. 1988)). New York's contemporaneous objection rule, codified as N.Y. CRIM. PROC. L. § 470.05(2), requires that in order to preserve a claim for appeal, a defendant must make his objection known at the time of a trial or proceeding, so as to give the trial court the opportunity to remedy its own errors. The Second Circuit Court of Appeals has "observed and deferred" to New York's contemporaneous objection rules as a bar to federal habeas review.
Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) (citing, inter alia, Bossett v. Walker, 41 F.3d 825, 829 n.2 (2d Cir. 1994)); see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (violation of the contemporaneous objection rule is an adequate and independent state ground). It is clear that the Appellate Division based its denial of this claim on an adequate and independent state ground, and therefore, the federal claim was procedurally defaulted in state court. Accordingly, federal review is barred, unless Petitioner demonstrates cause for the default and resulting actual prejudice, or alternatively that failure to review the claim would result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 748-50. To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his or her ability to comply with the relevant procedural rule. Coleman v. Thompson, 501 U.S. at 753, Restrepo v. Kelly, 178 F.3d 634, 639 (2d Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986); Bossett v. Walker, 41 F.3d at 829 (citing Murray); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992).
In his § 440 motion, Petitioner asserted several claims of ineffective assistance of counsel, however, none of those claims concerned his failure to preserve this involuntary plea claim. See Pet'r Mot. to Vacate. Petitioner offers no other explanation or cause for his failure to preserve the claim in question. When a petitioner has failed to establish adequate cause for his procedural default, the court need not determine whether he suffered prejudice, since federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Long v. Lord, 2006 WL 1977435, at *6 (N.D.N.Y. Mar. 21, 2006).
Petitioner has also failed to demonstrate or even argue that failure to consider this claim would result in a fundamental miscarriage of justice, which "occurs only in those 'extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.'" Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir. 2001) (quoting McCleskey v. Zant, 499 ...