The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Ronald Dozier petitions this Court for a writ of habeas corpus, challenging his state-court conviction for one count of burglary in the second degree. In this action, Petitioner argues that he received constitutionally ineffective assistance from both his trial counsel and appellate counsel. For the reasons set forth below, the Court concludes that an evidentiary hearing should be held to determine whether there is a reasonable probability that, but for trial counsel's deficient performance, Petitioner would have been offered and would have accepted a plea deal more favorable than the sentence he ultimately received.
This case was initially assigned to the Honorable Loretta A. Preska, District Judge, and it was referred to the Honorable Henry B. Pitman, Magistrate Judge, on June 17, 2003. (Doc. No. 3.) On November 20, 2004, the case was reassigned to the Honorable Kenneth M. Karas, District Judge. (Doc. No. 13.) Judge Pitman issued a Report and Recommendation (the "R&R") regarding the disposition of the petition on November 9, 2006, in which he recommended that Petitioner's application be denied. (Doc. No. 15.) On November 28, 2006, Petitioner filed objections to Judge Pitman's R&R. (Doc. No. 18.) This case was reassigned from Judge Karas to the undersigned on September 4, 2007 (Doc. No. 21), when Judge Karas moved to the White Plains courthouse and the undersigned assumed the bulk of Judge Karas's Manhattan docket.
A. The Underlying Conviction
Petitioner was arrested in connection with a March 12, 1996 unauthorized entry into a Manhattan apartment. He was charged with second-degree burglary, which is a Class C felony under New York law. See N.Y. Penal Law § 140.25. During pre-trial plea negotiations, Petitioner's trial counsel was under the mistaken belief, which was shared by the prosecutor, that Petitioner's criminal history qualified him as a "second violent felony offender" under N.Y. Penal Law § 70.04. In fact, Petitioner's criminal history was more extensive than either attorney realized and qualified him as a "persistent violent felony offender" under N.Y. Penal Law § 70.08.*fn2 Under this misapprehension, both parties believed that a conviction for the Class C felony with which Petitioner was charged would carry a determinate sentence of between seven and fifteen years. See N.Y. Penal Law § 70.04(3)(b). Against this backdrop, the prosecutor offered Petitioner the opportunity to plead guilty to a Class D felony, which (for a "second violent felony offender") carries a sentence of five to seven years, see id. § 70.04(3)(c), with the prosecutor specifically offering a five-year sentence. Petitioner rejected this plea offer and proceeded to trial, which began on March 19, 1997. Petitioner absconded during jury deliberations and was convicted in absentia of second-degree burglary.
At sentencing, also conducted with Petitioner in absentia, the state trial court determined that Petitioner was a "persistent violent felony offender," not a "second violent felony offender," as counsel for both parties had believed. Petitioner's counsel stated his surprise on the record:
Nobody realized he was a mandatory persistent. I should have realized it. I did not, and I therefore did not advise my client that he was facing a minimum of sixteen to life on this plea. I advised him all along that the offer was five years, which is the offer that was conveyed to me by [the prosecutor], and that it would be a minimum of seven years if he was convicted after trial with a maximum of fifteen years, determinative [sic] sentence. . . . .
I was his attorney, and I must admit it was negligent of me not to advise him how much time he was facing. Again, I have no excuse for that.
As a result of Petitioner's true criminal-history status, the court was required to "impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment." See id. § 70.08(2). The court was further required to impose a fixed minimum period of imprisonment, which Petitioner would have to serve before being eligible for parole. For a Class C felony, that "minimum period must be at least sixteen years and must not exceed twenty-five years." See id. § 70.08(3)(b).*fn3 The court set the minimum period at eighteen years. On November 4, 1998, Petitioner was detained pursuant to an arrest warrant, and began serving his sentence on November 16, 1998.
B. Relevant Post-Conviction Relief
Petitioner pursued post-conviction relief though a number of procedural mechanisms. Relevant here is his March 1, 2001 pro se motion to vacate his conviction pursuant to N.Y. Crim. Pro. Law § 440.10 (the "§ 440.10 motion").*fn4 In the § 440.10 motion, Petitioner argued that he received constitutionally ineffective representation from his trial counsel based on the same arguments that he raises in his petition before this court. The motion was denied on April 10, 2001. The state court reasoned that Petitioner had waived any challenge to his trial counsel's effectiveness by not raising the arguments during the direct appeal of his conviction. The court also concluded that, even ignoring the state-law procedural defect, Petitioner's federal constitutional rights had not been not violated under Strickland v. Washington, 466 U.S. 668 (1984). In this regard, the court reasoned that the five-year plea offer that Petitioner rejected was "without legal significance," since Petitioner "could not have accepted" it in light of his "true status as a persistent violent felony offender, a status which cannot be waived by the People." The court went on to say that because Petitioner had "no right to plead guilty to a lesser offense . . . , he could not have compelled the People to offer him a plea bargain." As a result, the court concluded that Petitioner had "not set forth his entitlement to a sentence lesser than that imposed," and therefore had "failed to show either that counsel failed to provide him with meaningful representation or that he was prejudiced by counsel's erroneous advice." His § 440.10 motion was therefore denied, and the Appellate Division, First Department, denied permission to appeal.
C. Dozier's Habeas Petition
In his habeas petition, Dozier contends that his "trial counsel failed to recognize [his] mandatory violent persistent felony offender status, and as a result, grossly underestimated [his] maximum sentencing exposure." (App. to Pet'n at 3-4.) In his February 18, 2004 "Traverse" (i.e., his response to the government's answer), Petitioner contends that he was prejudiced by his trial counsel's deficient representation because it is "highly likely" that the prosecutor would have allowed him "to plead guilty to a [Class] D felony and offered [him] a sentence of 12 ...