The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner David Donaldson ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of Attempted Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal L. §§ 110.00, 130.75[a]). Following a guilty plea in Chemung County Court before Judge James Hayden, petitioner was sentenced as a second felony offender to five years of imprisonment and five years of post-release supervision. Sentencing Mins. 2-5.
II. Factual Background and Procedural History
On more than one occasion between August 1996 and March 1997, petitioner touched and put his mouth on the genitalia of his ten-year-old daughter. Plea Mins. 7-8. By Chemung County Indictment No. 2002-13, petitioner was charged with Course of Sexual Conduct Against a Child in the First Degree, two Counts of Sodomy in the Second Degree, and Sexual Abuse in the Second Degree. On April 5, 2002, petitioner pleaded guilty to one count of Attempted Course of Sexual Conduct Against a Child in full satisfaction of the four-count indictment.
Petitioner appealed his conviction to the Appellate Division, Third Department, which was unanimously affirmed. People v. Donaldson, 1 A.D.3d 800 (3rd Dept. 2003); lv. denied 2 N.Y.3d 739 (2004). On appeal, petitioner raised the following issues: (1) that his guilty plea was neither knowing, voluntary, nor intelligent; (2) he did not receive effective assistance of trial counsel; and (3) the sentence imposed was harsh and excessive. See Petitioner's ("Pet'r") Appellate Br. 10-20. The Appellate Division rejected these claims on procedural grounds and also on the merits.
Petitioner then filed a pro se motion to vacate his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10, alleging ineffective assistance of trial counsel and newly discovered evidence. See Respondent's ("Resp't") Ex. E. This motion was denied by the Chemung County Court. See Decision and Order, No. 2002-13, dated 7/28/2005; Resp't Ex. H. Leave to appeal the denial of that decision was denied by the Appellate Division. Ex. J.
On March 24, 2006, petitioner challenged his appellate counsel's effectiveness in a motion for a writ of error coram nobis. Ex. K. That motion was summarily denied by the Appellate Division, and leave to appeal the denial was also denied by the New York Court of Appeals. Ex. N-P.
Petitioner then filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he alleges ineffective assistance of both trial and appellate counsel, that his guilty plea was not knowing and voluntary, and that the county court erroneously denied his motions for collateral relief without evidentiary hearings. Petition ("Pet.") 5-36. (Dkt. #1). The respondent has filed a Memorandum of Law opposing the petition, with accompanying exhibits. (Dkt. #10). On May 10, 2007, the Court received a letter from petitioner requesting the appointment of counsel. (Dkt. #11). That request is denied by this Decision and Order because each of the grounds upon which petitioner seeks habeas relief are those which can be addressed and reviewed by means of the record already before the Court.
For the reasons that follow, the Court does not find that petitioner is entitled to habeas relief, and the action is dismissed.
A. General Principles Applicable to Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement and Procedural Bar
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048(1984). "The exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings, and is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Jimenez v. Walker, 458 F.3d 130, 148-149 (2d Cir. 2006) (internal citations and quotation marks omitted).
Federal courts will be procedurally defaulted from habeas review of a "question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment... whether the state law ground is substantive or procedural." Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (describing the "adequate and independent state grounds" doctrine); see Harris v. Reed, 489 U.S. 255, 261 (1989). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding addressing a procedurally defaulted claim on the merits. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam). If the petitioner can "show both cause and prejudice, or a fundamental miscarriage of justice," however, federal court review may be allowed. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
B. Merits of the Petition
1. Ineffective Assistance of Trial Counsel
Petitioner contends that he received ineffective assistance of counsel because his assigned counsel allegedly withdrew a favorable plea agreement "secretly" and without petitioner's consent. See Pet. 5-7. (Dkt. #1).
The standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984) applies to a claim of ineffective assistance of counsel arising out of the plea bargaining process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient, and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Deficiency is measured by an objective standard of reasonableness and whether, "in light of all the circumstances, the identified acts or omissions, were outside the wide range of professionally competent assistance." Id. at 690. In terms of guilty pleas, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59. To prevail, a petitioner must show that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.
The Appellate Division, Third Department, held that petitioner's claim of ineffective assistance of counsel was unpreserved based on his failure to move to withdraw his plea or vacate the judgment of conviction. Donaldson, 1 A.D.3d at 801. In addition, the appellate court held that the majority of petitioner's contentions concerned matters outside the record, and "would be more appropriately addressed in a CPL article 440 motion...." Id. Alternatively, the court ...