The opinion of the court was delivered by: Block, Senior District Judge
Sukhjinder Sandher ("Sandher") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his plea of guilty in New York Supreme Court, Queens County, to one count of conspiracy in the second degree for conspiring to solicit a contract to murder his wife. He claims that (1) his due process rights were violated because the sentencing judge failed sua sponte to vacate his plea or conduct further plea proceedings in light of certain exculpatory statements by Sandher in his presentence report; and (2) his appellate counsel rendered ineffective assistance by failing to raise the issue on direct appeal. For the following reasons, the petition is denied.
On January 7, 1999, Sandher and his brother Arvinder Sandher ("Arvinder") were arrested and charged with Conspiracy in the Second Degree and Criminal Solicitation in the Second Degree for allegedly soliciting a contract to murder Sandher's wife. Sandher's trial counsel negotiated a plea deal, under which Sandher agreed to plead guilty to conspiracy in the second degree in exchange for a sentence of two and one-third to seven years' imprisonment.
During the plea proceeding, after Sandher formally entered his guilty plea, the court explained the rights and privileges that he was forfeiting by pleading guilty; Sandher acknowledged that he understood that he would indeed be sentenced to two and one-third to seven years. The court then asked Sandher whether he admitted by his plea that between the period of time December 12, 1998 and January 12, 1999, here in Queens County, that while acting together and in concert with [Arvinder], that with the intent that conduct causing the crime of murder in the second degree be performed, that you knowingly and wilfully agreed with one or more other persons to engage or cause that conduct?
Plea Tr. at 11. Sandher responded "Yes." Id. The court further inquired whether Sandher also admitted by his plea that in furtherance of such a conspiracy, and in order to effect the object of this conspiracy, committing the murder of another individual, that you committed at least these overt acts: That you made a payment of $500 as a down payment and the delivery of a photograph of the intended murder victim. And you provided the other person with whom you were entering into this agreement with a detailed description of the intended victim's daily activities[?]
Id. at 12. Sandher responded "Yes, please." Id. The court did not ask Sandher to recount the factual basis for the crime in his own words, but nothing in the plea transcript casts any doubts as to whether Sandher voluntarily, knowingly and unequivocally pleaded guilty to the conspiracy count.
Thereafter, in the presentence report ("PSR"), Sandher was reported as stating that he never "had any intentions on getting his wife killed but wanted to reprimand or scare her so that she will be faithful to him," and that he "later stopped the deal and asked his brother not to go with the plan, when he realized that it was wrong." PSR at 4.
At sentencing, Sandher confirmed that he had pleaded guilty to Conspiracy in the Second Degree. The court then imposed the promised sentence;*fn1 it did not question Sandher regarding the statements in the PSR, and the issue was not raised by Sandher or his counsel during the sentencing proceeding. At no time during the proceeding did Sandher ask to withdraw his plea.
Sandher appealed. His appellate counsel (who was not his trial counsel), supplemented by a pro se brief, challenged the validity of Sandher's plea on the grounds that the plea allocution was factually inadequate, and that Sandher was not advised by the court that he could be deported as a consequence of his plea; however, no reference was made to Sandher's statements in the PSR. The Second Department affirmed the judgment of conviction on the mistaken ground that Sandher's appellate counsel had certified, pursuant to Anders v. California, 386 U.S. 738 (1967), that there were no non-frivolous issues for appeal. People v. Sandher, 760 N.Y.S.2d 659 (2d Dep't 2003). The New York Court of Appeals denied leave to appeal. See People v. Sandher, 760 N.Y.2d 645 (2003).
Sandher then concurrently submitted to the Second Department, through new counsel,*fn2 a motion for reargument and an application for a writ of error coram nobis. In the reargument motion, Sandher's new counsel called the court's attention to its Anders brief error. He then set forth the details of the PSR, focusing specifically on Sandher's post-plea exculpatory statements, see Att'y Affirmation in Support of Def.'s Mot. to Reinstate Appeal at 11-21, and contended that "[w]hen presented with these assertions of innocence in the report, the Court did not make the required inquiry at sentencing." Mem. of Law in Support of Def.'s Mtn. to Reinstate Appeal at 15. In his coram nobis application, Sandher argued that his first appellate counsel's failure to raise this issue on appeal constituted ineffective assistance.
The Second Department granted Sandher's reargument motion and recalled its prior decision. See People v. Sandher, 785 N.Y.S.2d 87 (2d Dep't 2004). It then reaffirmed Sandher's judgment of conviction, holding that his argument that there was an inadequate factual plea allocution was unpreserved for appellate review because "defendant did not move to withdraw his plea before sentencing or to vacate the judgment of conviction." Id. It explained that the "narrow exception to the preservation rule described in People v. Lopez" did not apply because there was "nothing in the defendant's factual allocution which would negate an essential element of the crime pleaded to, cast significant doubt on his guilt, or otherwise call into question the voluntariness of his plea." Id. at 88 (citing People v. Lopez, 71 N.Y.2d 662 (1988)). The court further held that "[i]n any event, the defendant knowingly, voluntarily, and intelligently pleaded guilty." Id.*fn3 The New York Court of Appeals denied leave to appeal. See People v. Sandher, 4 N.Y.3d 802 (2005).
As for Sandher's coram nobis application, the Second Department summarily held, on the same day that it reaffirmed the judgment of conviction, that Sandher had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Sandher, 783 N.Y.S.2d 823 (2d Dep't 2004).
Thereafter, Sandher's new counsel moved the trial court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. He argued, once again, "that [Sandher's] plea allocution was insufficient and that his statements in the presentence report negated his admission of guilt in the plea allocution." People v. Sandher, No. 339/99 (N.Y. Sup. Ct., Queens County, Decision & Order dated Apr. 21, 2005), annexed to Pet'r's Mem. of Law. The court held that the claims were procedurally barred "since these issue were previously determined and rejected on the merits by the Appellate Division." Id. Sandher also once again argued that his trial counsel was ineffective for failure to warn him of the immigration consequences of his plea; the court noted that this claim was procedurally barred because it, too, had been previously rejected by the Appellate Division. See id. The court also addressed a further claim of ineffective assistance of trial counsel "on the basis that [Sandher's] attorney failed to bring any of his possible defenses before the court," id., rejecting it summarily because the allegations were made "solely by ...