The opinion of the court was delivered by: Seybert, District Judge
Petitioner Julius Scalercio ("Petitioner") commenced suit seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner then filed a Complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 seeking declaratory relief. These actions have now been consolidated into this docket, 05-CV-1770, and there are numerous motions pending. For the foregoing reasons, Petitioner's motions to amend his habeas Petition are GRANTED, but his Petition itself is DENIED, and his Complaint is DISMISSED sua sponte. Petitioner's remaining motions, which seek discovery, a preliminary injunction, and a temporary restraining order, are DENIED AS MOOT.
In November 1999, Petitioner conspired with Gregory Briones ("Briones") to conduct a home-invasion style robbery at a residence in Brookhaven, Suffolk County. Armed with a shotgun, Petitioner intended to gain access to the home by impersonating an IRS agent, presenting the home's residents with a fraudulent IRS badge and search warrant. The police thwarted Petitioner and his co-conspirators before their robbery plans reached fruition, arresting him.
On April 15, 2002, during the middle of his criminal trial, Petitioner pled guilty to Attempted Robbery in the First Degree, Attempted Robbery in the Second Degree, Attempted Burglary in the First Degree, Criminal Possession of a Weapon in the Third Degree, Attempted Criminal Impersonation in the First Degree, Conspiracy in the Fourth Degree, and to violating probation (the probation having resulted from a prior offense). Petitioner was informed that, if he pled, he would be sentenced to 10 years for the indictment's counts, 2 1/3 to 7 years for violating probation, and to a post-release supervision period of 5 years. (Plea Tr. 128). Petitioner indicated that he understood the proceedings and the consequences, thereof. (Id.). Petitioner indicated that he received no other promises as a condition for pleading guilty, other than that his sentences would run concurrently. (Plea Tr. 128-29). Petitioner then agreed to waive his rights to a jury trial, confront witnesses against him, testify on his own behalf, call witnesses on his behalf, and "any and all basis [he] may have for an appeal, and any and all appellate rights." (Plea Tr. 129-31).
On April 29, 2002, the New York Supreme Court, County of Suffolk, sentenced Petitioner for the various offenses to which he pled guilty, with the sentences to run concurrently, and the longest sentence lasting 10 years. (Sentencing Tr. 5-7). But despite New York Penal Law § 70.45's requirement that Petitioner also be sentenced to post-release supervision, the Court neglected to do so. Petitioner, however, was re-sentenced on August 1, 2008. His new sentence did not modify his prison term but did include a five-year-period of post-release supervision.
On September 20, 2004, the New York Appellate Division, Second Department, affirmed Petitioner's conviction. See New York v. Scalercio, 10 A.D.3d 697, 697-98 781 N.Y.S.2d 745 (App. Div. 2004). The Court concluded that Petitioner's guilty plea was knowing, intelligent, and voluntary, and that by pleading guilty, Petitioner had "forfeited appellate review of his non-jurisdictional challenges to the indictment" and "his claims of ineffective assistance of counsel, which did not directly involve the plea-bargaining process" Id. In addition, the Court found that, by waiving his right to appeal, Petitioner waived the right to challenge his sentence as excessive. Id. On October 28, 2004, the New York Court of Appeals denied Petitioner leave to appeal the Second Department's decision. See 3 N.Y.3d 742, 786 N.Y.S.2d 821 (Table).
On April 8, 2005, Petitioner commenced this Petition under 28 U.S.C. § 2254. Petitioner originally sought § 2254 relief on the grounds that: (1) the grand jury that indicted him was improperly empaneled and given inadequate legal instructions; (2) he was "not guilty" of what he pled guilty to; (3) his right to a fair trial was violated when the New York Supreme Court, Suffolk County, denied his motion for a change of venue; (4) counsel was ineffective because counsel (a) failed to raise valid arguments in his defense, (b) failed to sufficiently cross-examine witnesses, and (c) had supposed conflicts of interest and irreconcilable differences; (5) his guilty plea was obtained by "fraud, trickery, deceit, and coercion"; (6) his sentence for violating probation exceeded the proper term provided by the "pre 9-1-98 sentencing guidelines"; (7) he was denied his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment Rights under the United States Constitution, and similar rights under the New York Constitution; (8) his plea was unintelligent because he did not know all the consequences of his plea--the period of post-release supervision in particular; (9) post-release supervision is unconstitutional because it results in a defendant being sentenced twice for the same offense; (10) he was denied a right to appeal;*fn1 and (11) that the New York Statute providing for post-release supervision is unconstitutional because it supposedly violates numerous federal and state constitutional protections, including protections from double jeopardy and cruel and unusual punishment.*fn2 Among other things, Petitioner alleges that his August 1, 2008 re-sentencing was unconstitutional because the Court modified his August 29, 2002 sentence to add a period of post-release supervision. Petitioner further argues that he was not informed that post-release supervision would be part of his sentence, and would not have pled guilty if he had known. And Petitioner argues that N.Y. Penal Law § 70.45, which provided for his post-release supervision, violates the separation of powers doctrine by entrusting judicial functions in a non-judicial officer, and by constituting a bill of attainder. Finally, on March 23, 2009, Petitioner filed a Complaint, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201, seeking a declaratory judgment holding that New York Penal Law § 70.45 is unconstitutional as applied to him.
The Court addresses each of Petitioner's arguments, in turn.
I. Federal Habeas Review of State Convictions
Petitioner filed this action after the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Accordingly, the AEDPA's provisions apply to his case. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1479, 1518, 146 L.Ed. 2d 389 (2000). Under the provisions of 28 U.S.C. § 2254(d), a habeas corpus application must be denied unless the state court's adjudication on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This deferential review is applied as long as the "federal claim has been 'adjudicated on the merits' by the state court." Cotto v. Herbert, 331 F.3d 217, 231 (2d Cir. 2003).
"A state court adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (internal citations and quotations omitted).
"Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (internal citations and quotations omitted). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [their] precedent." Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed. 2d 9 (2001) (internal quotations and citations omitted). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Penry, 532 U.S. at 792. Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.
"[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). As a result, Petitioner bears the burden of "rebutting the presumption of correctness by clear and convincing evidence." Id. This is "particularly important when reviewing the trial court's assessment of witness credibility." Cotto, 331 F.3d at 233 (internal citations and quotations omitted).
II. Petitioner's Grand Jury Claims
Petitioner first argues that the Grand Jury that indicted him was improperly empaneled. Petitioner, however, had no federal constitutional right to a grand jury. See Cobbs v. Robinson, 528 F.2d 1331, 1334 (2d Cir. 1975) ("the States are not constitutionally required to use grand juries"); Velez v. New York, 941 F. Supp. 300, 315 (E.D.N.Y. 1996) ("there is no federal constitutional right to be indicted by a grand jury prior to trial in a state criminal action"). At most, Petitioner had a right that any grand jury that New York chose to empanel complied with federal constitutional standards--such that his rights to Due Process and Equal Protection were protected. Cobbs, 528 F.2d at 1334. But Petitioner's complaints concerning the grand jury which indicted him do not concern such federal rights--such as his right to not have potential jurors excluded due to their sex, race, religion or national origin. Instead, they concern rights that Petitioner may have under New York state law--such as an alleged failure to afford Petitioner the right to testify before the grand jury, and the allegedly insufficient evidence that the jury used to indict. (See Pet. at ¶¶ 1-11.) ...