The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Presently before the Court is David Trapp's pro se Petition for a Writ of Habeas Corpus, brought pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Pet. Trapp raises the following grounds for habeas relief: his guilty plea was involuntary because (1) the trial judge did not apprise him of a mandatory five (5) year post-release supervision term that was part of his sentence and (2) the trial judge did not inquire about his mental defect affirmative defense during the plea allocution; and (3) his sentence was unduly harsh and excessive. Id. at pp. 7-8. For the reasons that follow, it is recommended that the Petition be GRANTED in part and DENIED in part.
Petitioner was indicted on the following charges in connection with his participation in a March 29, 2001 robbery of a laundromat located in Auburn, New York: Robbery in the First Degree (N.Y. PENAL LAW § 160.15(3)), Robbery in the Second Degree (N.Y. PENAL LAW § 160.10(1)), Conspiracy in the Fourth Degree (N.Y. PENAL LAW § 105.10(1)), Menacing in the Second Degree (N.Y. PENAL LAW § 120.14), Reckless Endangerment in the First Degree (N.Y. PENAL LAW § 120.25), Unlawful Imprisonment in the First Degree (N.Y. PENAL LAW § 135.10), Criminal Possession of Stolen Property in the Fifth Degree (N.Y. PENAL LAW § 165.40), and Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02(1)). State Court R. (hereinafter "R."), Ex. C, Pet'r App. Div. Br., Attach., Indictment No. 2001-037.
On September 14, 2001, Petitioner pleaded guilty to Robbery in the First Degree (N.Y. PENAL LAW § 160.15(3)) in satisfaction of the entire Indictment. R., Ex. A, Plea Hr'g Tr., dated Sept. 14, 2001, at p. 9. On that same day, the Honorable Peter E. Corning, New York State Cayuga County Court Judge, sentenced Petitioner to a determinate period of fifteen (15) years of incarceration. R., Ex. B, Sentencing Hr'g Tr., dated Oct. 26, 2001, at pp. 6-7.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the grounds that (1) his plea was involuntary because the trial court failed to inquire about his mental defect affirmative defense during the plea allocution, and (2) that his sentence was harsh and excessive. R., Ex. C, Pet'r App. Div. Br. at pp. 6-7. The Appellate Division denied those claims and affirmed Petitioner's conviction. People v. Trapp, 15 A.D.3d 916 (N.Y. App. Div. 4th Dep't 2005). Petitioner's application for leave to appeal to the Court of Appeals was also denied. People v. Trapp, 4 N.Y.3d 891 (2005).
Subsequently, Petitioner filed a Motion to Vacate the Judgment pursuant to N.Y. CRIM. PROC. LAW (CPL) § 440.10 on the grounds that his plea was involuntary and unknowingly entered because (1) the trial court failed to advise him of a mandatory five (5) year post-release supervision ("PRS") term included in his sentence, and (2) his mental defects prevented his voluntary and knowing plea and waiver of his constitutional rights. R., Ex. H, Pet'r § 440 Mot., dated June 23, 2006, at pp. 2-8. The Cayuga County Court denied Petitioner's § 440 Motion as well as his subsequent motion to reargue. R., Exs. K & N, Orders, dated Oct. 3 and Dec. 18, 2006. Petitioner appealed the denial of his § 440 Motion to the Appellate Division, Fourth Department, which denied him permission to appeal. R., Ex. O, Order, dated June 2, 2007.
Petitioner timely filed the instant Habeas Petition on July 10, 2007.*fn1 Dkt. No. 1.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
1) 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
2) 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); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting that:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
B. Validity of Petitioner's Guilty Plea
The Due Process Clause of the Fifth Amendment requires guilty pleas to be voluntary and intelligent in order to withstand constitutional muster. Brady v. United States, 397 U.S. 742, 747-48 (1970). "To determine the voluntariness of a plea, the court should consider all of the relevant circumstances, including the possibility of a heavier sentence . . . [as well as] whether the court addressed the defendant and explained his options." Bello v. People, 886 F. Supp. 1048, 1054 (W.D.N.Y. 1995) (citing Magee v. Romano, 799 F. Supp. 296, 300 (E.D.N.Y. 1992)). Courts will also look to see whether the plea was entered into with the advice of counsel. United States v. Broce, 488 U.S. 563, 572 (1989). Pleading guilty with the aim of reducing the possible penalty has no bearing on voluntariness or on counsel's effectiveness. North Carolina v. Alford, 400 U.S. 25, 31 (1970).
In this case, Petitioner asserts his guilty plea was involuntary and unknowingly entered because the trial judge did not (1) inform him of a mandatory five (5) year PRS term, nor (2) inquire about his mental defect affirmative defense during the plea allocution. We address these claims in order.
1. Failure to Include Post-Release Supervision Term in Plea Colloquy
Upon the advice of counsel, Petitioner agreed to plead guilty to Robbery in the First Degree in full satisfaction of all the charges brought against him. As reflected in portions of the plea colloquy entered below, at the time the plea was entered, no promises were made to Plaintiff regarding the sentence he was to receive.
COURT: Your attorney has indicated you wish to enter a plea of guilty to Count One of the indictment charging robbery in the first degree alleging that on or about March 29, 2001 at the Clean Town Laundry on Seminary Street that you forcibly stole property from another individual and that you were armed with a knife and threatened the individual with that knife. Do you understand those to be the charges against you?
COURT: To which you -- your attorney indicates you want to plead guilty. Do you wish to ...