The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Anthony May ("May" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea on December 4, 2000, in Erie County Court, of New York State Supreme Court, on four counts of attempted second degree assault and one count of second degree assault. See Petition (Docket No. 1); Respondent's Memorandum of Law ("Resp't Mem.") at. Following the guilty plea, May received, as a second felony offender, concurrent terms of one and one-half to years in prison. These were the minimum sentence possible under New York's Penal Law. The sentences were required to run consecutively to the sentence of twenty years to life for a second degree murder conviction, pursuant to which May has been incarcerated since February 12, 1981.
The incident forming the basis of the assault convictions at issue here allegedly occurred on February 4, 2000, while May was confined at Gowanda Correctional Facility. As the trial court noted at the sentencing hearing,
The Court: There was, apparently, an incident between you [May] and another inmate, and various correction officers then responded to that incident. They being Michael Mathers, Mark Maternowski, Donald Hawkins, as well as [Correctional Officers] Beaver and Sweet. There was a struggle between you and them, in which, at least, Mr. Hawkins was bit on the finger, Mr. Mathers was bit on the leg, and there were claims of physical injury to the other correctional officers.
Excerpt from Sentencing Hearing dated March 9, 2001, attached to Petition (Docket No. 1); see also Superintendent Hearing Disposition dated 2/14/00, attached to Petition (Docket No.1).
The trial court allowed May to give his side of the story before pronouncing the sentence, and May essentially moved to withdraw his plea based on a claim of innocence:
The Defendant: [A]llegedly what happened is that me and the individual, he was leaving on the transfer. We were celebrating the fact, you know, that he was leaving on the way out, and the officer mistook horseplaying for a fight; and the officer grabbed me by my neck and threw me up on the wall and asked me, give him my ID, show him my identification and so forth and so on. No problem.
However, after he radioed for the sergeant to come, the sergeant entered the scene, grabbed me by the back of my shirt collar, removed me from the area of 30 inmates to an undisclosed area, slammed my head up on the wall, causing me to grab for my face. When I grabbed -- involuntarily grabbed for my face because of the reaction, [I] started being assaulted. And, you know what they told me? I was assaulted because I took my hands off the wall.
Now, I've been in jail approximately 21 years. I never had an altercation with an officer, never. And Mr. Gresham [the prosecutor], Mr. Gresham's job is also to seek the truth. However, sir, I never got the chance to say anything. Mr. Cutting [defense counsel] did the best he could do for me. I do appreciate -- I do appreciate this gentleman here. I told him I don't have no animosity or anger at him whatever; but it's been a miscarriage of justice here because -- if you don't mind me showing you, Mr. Gresham, no disrespect to you or nothing [sic] like that, but you was [sic] misled. And I really do believe that because your were misled, they lied to you and they told you that, you was [sic] only doing your job.
However, I appealed their conviction on the administrative level. They gave me 72 months, Your Honor. They violated every rule they could violate. And when I appealed it and was able to get documentary proof, they broke it all the way down to 18 months.
The Court: Eighteen months in what, special housing [i.e., Special Housing Unit or solitary confinement]?
The Defendant: Yes, special housing.
The Court: Well, with all due respect, Mr. May, [the] superintendent's hearing and the aspects of it are before another body.
The Court: And I am taking into account the fact that you have suffered that consequence of special housing and confinement as part of my sentence. As I say, I wasn't there on February 4th. I don't know whether the sergeant aggravated what was otherwise an innocent matter or whether or not there was a fight or a dispute that he attempted to intervene on based upon what he observed. And to what occurred thereafter, I guess there's little doubt that there was a biting and there was some injuries incurred by the correction officers.
I know jail is a tough place and I know they require discipline. Sometimes there may be an overreaction. I'm not making any judgment with respect to it one way or the other, only that you did enter a plea to an attempted assault second under five counts surrounding this incident and that my sentence will run one and a half to three [years] on each concurrent, and that it is and must be consecutive to your present sentence. I think that's the minimum that can be imposed and I do so in light of the fact that there has been administrative consequences to this incident that you have already served. Now, I don't believe I can be any fairer to you than that.
Excerpt from Sentencing Hearing, attached to Petition (Docket No. 1). The trial court thus denied May's pro se motion made at the sentencing hearing to withdraw his plea based on his assertion that he was not guilty of assaulting the corrections officers. The sentences imposed were five concurrent terms having a maximum of three and a minimum of one and one-half years, to be served consecutively to May's present sentence on the second degree murder conviction.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. People v. May, 305 A.D.2d 1095, 759 N.Y.S.2d 716, 2003 N.Y. Slip Op. 13707 (App. Div. 4th May 2, 2003). The New York Court of Appeals denied leave to appeal on September 8, 2003.
On February 10, 2004, a different judge of Erie County Court denied May's pro se motion to vacate the judgment pursuant to New York Criminal ...