The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Larry Cheshire petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he is being held in custody in violation of the Constitution and laws of the United States. Petitioner is currently incarcerated at the Sullivan Correctional Facility pursuant to a judgment of conviction entered on October 15, 2002, following a plea of guilty entered in the New York State Supreme Court, Queens County, for Robbery in the First Degree, N.Y. Penal Law § 160.15(4).
Petitioner was apprehended for a robbery at a warehouse in Queens, New York, after his fingerprint was found at the scene of the crime. On September 9, 2002, petitioner appeared with his counsel before Justice Joseph Rosenzweig in the New York State Supreme Court, Queens County, and pled guilty to robbery in the first degree, the top count of the indictment. At the proceedings, the parties represented that petitioner was a "violent predicate." See Plea Tr. at 3-4. Petitioner withdrew his plea of not guilty and entered a plea of guilty to the top count of the indictment, "with the understanding he would receive a minimum of ten years."*fn1 Id. at 4. On October 15, 2002, the court arraigned petitioner as a second violent felony offender and sentenced him to a term of imprisonment of 10 years and a period of post-release supervision of five years.
On April 26, 2005, petitioner filed a pro se motion to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20, arguing that his sentence was "unauthorized, illegally imposed [and] invalid as a matter of law" because the prior conviction that served as the basis for his second felony offender adjudication did not qualify as a predicate offense. See Exh. B (Pet.'s Mot.). Petitioner also argued that "[i]t is clear in this case that defendant was to receive the'minimum sentence' for his guilty plea to robbery in the first degree" and that "the People didn't make it a part of their plea agreement that defendant was to be sentenced over the minimum." Exh. D (Pet.'s Reply) ¶¶ 4, 5 & n.2. Refusing to "waive the minimum sentence of his original plea agreement that he has already pled guilty to," petitioner requested that he be re-sentenced to the minimum term as a first time violent felony offender. Id. ¶¶ 5, 8. The People conceded that petitioner should not have been adjudicated as a second violent offender,*fn2 but argued that "the ten-year sentence defendant received on his plea is a legal sentence for a first-time violent offender offender." Exh. C (People's Opp.) at 4.
On August 9, 2005, petitioner appeared with counsel before Justice Richard McGann for re-sentence.*fn3 Upon the consent of both parties, the court vacated the finding that petitioner is a second violent felony offender and asked the parties for additional applications. Petitioner, while agreeing that ten years was a legally permissible sentence, contended that "there was an agreement made in this courtroom... and all the people were satisfied with that agreement as to the minimum number" and he accordingly felt "entitled to that minimum number that the People, myself, and the Court were [in] agreement upon." Re-sentencing Tr. at 4. Petitioner also stated that, "if... everyone at first thought that or... if they knew that I wasn't a... second felony offender [then], maybe, we could have came to an agreement that I'll get less than the ten years that I received earlier." Id. In response, the prosecution stated that, even though petitioner was not a second violent felony offender, he was "still a violent person and he has a violent history" and that "the ten years was the agreed upon sentence and appropriate sentence in this case." Id. at 8.
The court acknowledged that, initially, "[t]he judge gave [petitioner] the minimum he could have, at the time, under all the knowledge available to all sides"*fn4 but stated that it "cannot and will not come to a decision that... would be just and consistent by giving [petitioner] the minimum sentence of five years." The court concluded that this minimum term applicable to a first violent felony offender would not be a "fitting sentence" for petitioner and stated, "I have no reason to believe that that prerogative would have been available, that would have been the court's decision." After indicating that it would sentence petitioner to a term that it believed would be "right," the court imposed a sentence of eight years in prison with five years of post-release supervision. Id. at 10-11.
OnDecember 26, 2006, petitioner, through counsel, appealed to the Appellate Division, Second Department, seeking an order reducing his re-sentence. Petitioner argued that the re-sentencing term failed to fulfill the intent underlying his initial plea because he waived his right to appeal his sentence in exchange for the minimum permissible sentence. Petitioner further argued that, once it was determined at re-sentencing that he had been improperly adjudicated as a second violent felony offender, the court should have re-sentenced him to the minimum permissible sentence of five years for a first time violent felony offender. Alternatively, petitioner claimed that the re-sentence was unduly harsh and should be reduced in the interest of justice because the court did not adequately take into consideration the rehabilitative efforts he had engaged in by the time of re-sentencing. In a Decision and Order dated April 17, 2007, the Appellate Division affirmed petitioner's sentence without an opinion, noting that petitioner's appeal, "as limited by his motion," was only on the ground that the sentence was excessive. People v. Cheshire, 39 A.D.3d 770 (2d Dept. 2007).
By letter dated May 9, 2007, petitioner, through his counsel, timely sought leave to appeal to the New York Court of Appeals and expressly asked the court to consider all issues raised in petitioner's appellate motion. On July 6, 2007, the Court of Appeals summarily denied this request. People v. Cheshire, 9 N.Y.3d 864 (2007).
On August 10, 2007, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, again arguing that, at the time of his original sentence, the court and petitioner were "uninformed as to the true consequence of his plea and misinformed as to his status as a first felon offender," and he was therefore unable to make "an informed and intelligent choice between alternatives presented to him by the People." As relief, petitioner seeks specific performance of the alleged terms of the plea bargain; in other words, petitioner seeks to be re-sentenced to a term of five ...