The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Before the Court is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.
The petitioner, Christopher Wright ("Wright"), seeks habeas corpus relief challenging the constitutionality of his guilty plea to the extent he was sentenced to a term of post release supervision in addition to his sentence on various state charges. More specifically, on December 13, 2000, Wright pled guilty to January 17, 2000 to an 11 count indictment charging the following: robbery (first degree) in violation of New York State Penal Law ("N.Y.S.P.L.") §160.15(3) relating to a February 6, 2000 incident; robbery (second degree) in violation of N.Y.S.P.L. §160.10(3) relating to February 6, 2000 incident; grand larceny (third degree) in violation of N.Y.S.P.L. §155.35 relating to February 6, 2000 incident; criminal possession of stolen property (third degree) in violation of N.Y.S.P.L. §165.50 relating to February 14, 2000 to February 19, 2000 incidents; grand larceny (third degree) in violation of 155.35 relating to February 16, 2000 incident; grand larceny (fourth degree) in violation of N.Y.S.P.L. §155.30 relating to February 16, 2000 incident; grand larceny (third degree) in violation of 155.35 relating to February 21, 2000 incident; criminal possession of stolen property (third degree) in violation of N.Y.S.P.L. § 165.50 relating to February 24, 2000 incident; reckless endangerment (second degree) in violation of N.Y.S.P.L. §120.20 relating to February 24, 2000 incident (two counts); and resisting arrest in violation of N.Y.S.P.L. §205.30 relating to February 24, 2000 arrest. (See Transcript of Plea attached as Exhibit A to the Petition at page 18-20; see also Indictment attached to Appendix, State Court Records, Exhibit C).
At the outset of the plea hearing, Wright's counsel advised the Court that the petitioner was given a choice in the plea negotiations Judge, um, we did conference this matter yesterday, and my understanding of the outcome was that Mr. Wright would have the option, if he chooses, either to plead guilty to the second count of the indictment charging robbery in the second degree to satisfy the indictment with a waiver of appeal and sentence of eight years plus post release supervision; or in the alternative he could plead to the entire indictment with an Alford plea with respect to the first count. He would continue to have a right to appeal that would remain intact, the sentence promise would be the same.
(Transcript of Plea at page 2)(emphasis added). Wright did not object to this characterization of the expected sentence pursuant to his plea negotiations. He was asked if there was anything he wanted to ask his counsel before proceeding further. Wright responded: "No sir." (Transcript of Plea at page 18). The petitioner chose to plead guilty to all 11 counts to preserve his right to appeal.*fn1 In doing so, the petitioner articulated a factual basis for the various charges (Transcript of Plea at pages 4-18).
On January 17, 2001, the day on which Wright was sentenced, the petitioner's counsel advised the Court (and the prosecutor) that the "sentence agreement was eight years, with five years post-release supervision." (Transcript of Sentencing, attached as Exhibit B to the Petition, at page 4)(emphasis added). The defendant did not object to his counsel's characterization of the plea agreement as to sentencing. The Court subsequently issued specific sentences for each of the 11 counts, ranging from eight years to one year, with each sentence running concurrently.
The sole issue raised by the petitioner in his habeas corpus petition relates to the imposition of the post release period of supervision. Wright asserts this "was not the sentence that the petitioner agreed upon after exhaustive negotiations with the state." (Docket No. 2 at page 4). He argues that he was surprised by the imposition of post release supervision, and thus, his guilty plea was not knowingly and intelligently entered. (Docket No. 2 at page 6).
In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts.*fn2 See Ayala v. Speckard, 89 F.3d 91, 94 (2d Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas corpus review must first exhaust his available state remedies with respect to each of the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). To meet this requirement, the petitioner must have raised the question in a state court and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Fevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).
The respondent acknowledges that the petitioner raised the sole issue in this case in collateral proceedings, but not in his direct appeal of the convictions. Thus, the respondent contends that the petitioner has procedurally defaulted and cannot obtain relief in this habeas corpus proceeding. (See Docket No. 9, ...