The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Pro se Petitioner Raymond Brown, a New York state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his plea of guilty to one count of murder in the second degree. Petitioner contends that he felt "coercive pressure" to plead guilty to the murder charge, because the same judge's conduct during a previous trial convinced him that he could not receive a fair trial in front of the same judge.*fn1
For the reasons discussed below, the Court DENIES the petition. First, Petitioner's claim is barred because Petitioner did not raise it in his first motion to vacate the judgment resulting from his guilty plea pursuant to New York Criminal Procedure Law ("CPL") § 440, and Petitioner has not demonstrated valid cause for this procedural default. Even if Petitioner could overcome the procedural bar, Petitioner's claim fails, in any event, on the merits. The state court's decision that Petitioner's coercion claim was "without merit" and "refuted by the record" was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d). BACKGROUND
I. Proceedings in the Trial Court
On January 24, 2000, a Bronx County grand jury charged Petitioner (Indictment No. 425/2000, "No. 425") with the November 1999 murder of Dwayne Hamilton. On April 9, 2001, a second indictment was filed (Indictment No. 1786, "No. 1786"), charging Petitioner with two counts of attempted murder and other weapons-related offenses in connection with the April 1999 shooting of Xaviar Roman and the May 1999 shooting of Charles Cox.
The charges contained in the second indictment, No. 1786, were tried first, in May 2001, before Justice Phyllis Bamberger in Supreme Court, Bronx County. On May 30, 2001, a jury convicted Petitioner of two counts of attempted murder in the second degree, two counts of criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree (Petitioner's "trial convictions").
The following week, on June 4, 2001, Petitioner again appeared before Justice Bamberger, for trial on the first indictment, No. 425. Petitioner's counsel informed the court that his client wished to plead guilty to one count of murder in the second degree, with the understanding that he would receive a minimum sentence of fifteen years to life imprisonment on the murder conviction, and that this sentence would run concurrently with the sentence still to be imposed on the trial convictions.
The court explained that the disposition of this indictment would be independent from the trial convictions, and that if the trial convictions were later reversed on appeal, his guilty plea and sentence under this indictment "would stand." The court also explained that, by entering a guilty plea, Petitioner would waive his right to appeal his murder conviction, "except to challenge the knowingness and voluntariness of [the] plea and the legality of [the] sentence." (Killian Decl.; Ex. 1, Tr. 14-15.) After conferring with his attorney, Petitioner stated that he understood the terms of the plea.
The court asked Petitioner if anyone "had force[d] you to enter this plea to the murder case or [made] you do it against your will." Petitioner replied, "No, your honor. I spoke with my family and they say that it's the best, it's the best thing." The court inquired, "So you're doing this because you think this is the best way to resolve the case?" Petitioner replied, "Yes, your Honor." (Tr. 16.)
Finally, the court asked Petitioner to describe the events that took place on November 2, 1999. Petitioner stated that he "shot Dwayne Hamilton several times to cause his death." (Tr. 19-20)
On August 9, 2001, the court sentenced Petitioner pursuant to his trial convictions and his plea conviction. Pursuant to his trial convictions, the court sentenced Petitioner to an aggregate term of fifty years imprisonment: a determinate term of twenty-five years on each attempted murder conviction, to run consecutively, and terms of fifteen years and seven years on the two weapons possession convictions, to run concurrently with the other two terms of imprisonment. (No. 1786.) The court next sentenced Petitioner to an indeterminate sentence of fifteen years to life imprisonment for the Hamilton murder (No. 425), to run concurrently with the sentence imposed on Petitioner's trial convictions.
II. Appeals in the State Courts
A. Petitioner's First § 440 Motion
Over a year later, on October 29, 2002, Petitioner, in a pro se motion, moved the trial court to vacate the judgment of conviction on both indictments, pursuant to New York Criminal Procedure Law § 440.10, arguing that, inter alia, his status as an illegal alien deprived the court of jurisdiction, and that his counsel was ineffective in not raising this defense at trial. (See Killian Decl.; Ex. 2.) On April 28, 2003, the trial court denied the motion. (See Killian Decl.; Ex. 5.)
B. Petitioner's Direct Appeal
Petitioner also appealed both judgments, through his assigned appellate counsel. Petitioner's brief raised two issues, both of which concerned his trial convictions: (1) whether the trial court erred when it found that defense counsel's explanation for the exercise of a peremptory challenge was pre-textual under Batson v. Kentucky; and (2) whether the trial court improperly allowed evidence that Petitioner shot a third person (i.e., Dwayne Hamilton) pursuant to the identity exception to New York's Molineux rule. Petitioner also filed a pro se supplemental brief that raised a third issue: whether the trial court abused its discretion curtailing defense counsel's ability to effectively cross-examine the alleged victims. Petitioner did not raise any issue with respect to his guilty plea in either the brief prepared by assigned appellate counsel or his pro se brief. In fact, the brief prepared by assigned appellate counsel states that "no challenge is made below to the propriety of the conviction under Indictment No. 425/00 [Petitioner's plea conviction], and that conviction should therefore be affirmed." (Killian Decl.; Ex. 6, Br. at 3.)
On December 14, 2004, the New York State Appellate Division, First Department, rejected Petitioner's arguments and affirmed both judgments. People v. Brown, 13 A.D.3d 145 (1st Dept. 2004). Leave to appeal was denied on March 11, 2005.*fn2 People v. Brown, 4 N.Y.3d 828 (2005).
C. Petitioner's Second § 440 Motion
On June 24, 2004, during the time Petitioner's appeal to the Appellate Division was pending, Petitioner moved the trial court, now acting pro se, to vacate the judgment resulting from his guilty plea (Indictment No. 425), pursuant to CPL § 440.10 (Petitioner's "second § 440.10 motion"). Petitioner claimed that he was under "coercive pressure" when he pled guilty to the murder charge, due to "fear visited upon him" by the trial judge's statements and rulings during his earlier trial (Indictment No. 1786). Petitioner claimed that the judge's conduct at trial (1) demonstrated bias against Petitioner, and (2) convinced Petitioner that he would not receive a fair trial if he proceeded to trial on Indictment No. 425 in front of the same judge. Petitioner claimed that his guilty plea was involuntary and violated due process.
In support of his motion to vacate the murder conviction, Petitioner cited several exchanges between the judge and defense counsel during the trial. One of these exchanges occurred in connection with defense counsel's application to introduce certain of Petitioner's pre-trial statements (to rebut the prosecutor's use of other such admissions). Initially, the trial court rejected the application, opining that there was no case law to support the defendant's argument. (May 9 Tr. 5, 11-12; see Killian Decl.; Ex. 17, Br. 5.)*fn3 Overnight, the trial court did further research and discovered some case law that supported defense counsel's position. The judge expressed her displeasure with counsel (more so defense counsel) for not having alerted the court to the case law. (May 10 Tr. 24-25, 27) The judge stated that "if anybody knew this yesterday and didn't tell me even though I asked for it, I think you're behaving in a horrendous manner." (Tr. 25.) The following exchange ensued:
THE COURT: So if you know of some authority that supports your argument, it would be ...