The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).*fn1
Petitioner Francis Helmer is challenging his August 11, 2002, judgment of conviction for second degree assault in the Herkimer County Court. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he unknowingly pled guilty and waived his right to appeal; (2) his conviction was obtained by a "coerced confession;"*fn2 (3) his conviction resulted from an unlawful arrest; and (4) he received ineffective assistance of counsel. (See Dkt. No. 7, Amd. Pet. at 5--6; Ans. at 2).
Petitioner stabbed Jeremy Guyer on January 7, 2008, in the Village of Herkimer, New York, causing Guyer to suffer serious physical injury. A Herkimer County Grand Jury charged petitioner with Assault in the First Degree (N.Y. PENAL LAW § 120.10 (1)) and Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02 (1)).
B. State Court Proceedings
Represented by counsel, petitioner pled guilty on July 21, 2008, in Herkimer County Court to Assault in the Second Degree, in full satisfaction of the indictment. (P. at 2--7).*fn3 The plea agreement included a sentence of seven years imprisonment, followed by three years of post-release supervision. Id. When he entered his plea of guilty, petitioner indicated that he understood that he was waiving his right to appeal the conviction as part of the plea agreement and that he was waiving his right to a jury trial, to cross-examine witnesses, to present witnesses on his own behalf, and to testify in his own behalf. Id. Finally, petitioner admitted that he "did, in fact, cut, stab Jeremy Guyer." Id. at 4--5.
As a result of his guilty plea, on August 11, 2008, petitioner received the agreed-upon sentence of seven years imprisonment plus three years post-release supervision. (S. at 2--6). On that same date, petitioner indicated that he did not wish to appeal his conviction by placing a check on a line next to "I DO NOT WANT TO APPEAL" on a form titled "Notice of Right to Appeal," and signing the form along with his attorney. (Ex. A) (emphasis in the original). Petitioner's examination of the form and discussion of its contents with his attorney were noted on the record. (S. at 6).
Over one month later, petitioner filed a Notice of Appeal and a Notice of Motion to Proceed As a Poor Person, dated September 16, 2008. (Ex. B). Plaintiff's papers were returned by the Appellate Division, Fourth Department with a memo dated October 8, 2008, listing the deficiencies in petitioner's papers. (Ex. C). Petitioner then filed a Notice of Motion for Extension of Time for Taking Appeal with an accompanying Affidavit in Support dated November 11, 2008. (Ex. D). In his affidavit, petitioner stated that he was "unaware of [his] legal right's [sic] and, prior to consulting with legal clerks in the prison law library, did not know how to file a pro se notice of appeal." Id.
Petitioner's counsel filed a response dated December 4, 2008, stating that "at the time of the plea, the defendant had indicated to [defense counsel] that he did not wish to appeal." (Ex. E). However, defense counsel did not object to petitioner's motion for an extension of time to file a notice of appeal. Id. The Assistant District Attorney filed opposition papers, arguing that petitioner's guilty plea was voluntary and was beneficial to petitioner. Petitioner was allowed to plead to a reduced count of assault in the second degree, in exchange for the agreed sentence and the waiver of petitioner's right to appeal. (Ex. F). Petitioner filed a reply dated January 7, 2009, arguing that he was "incompetent and incapable of knowingly, voluntarily and freely relinquishing his right to appeal or to enter a plea in this matter." (Ex. G at 2). The Appellate Division denied petitioner's motion to extend the time to take an appeal on January 22, 2009, stating that it had considered petitioner's affidavit, defense counsel's letter, and the district attorney's affirmation in making its decision. (Ex. H).
Petitioner attempted to file a motion to set aside his sentence pursuant to N.Y. CRIM. PROC. LAW § 440.20 on April 22, 2009. (Ex. I). No opposition was filed nor was a decision rendered because the motion was not properly filed with the court, and the court informed ...