The opinion of the court was delivered by: Andrew T. Baxter, Magistrate Judge
ORDER and REPORT-RECOMMENDATION
This matter was originally referred to Magistrate Judge Gustave J. Di Bianco for Report and Recommendation by United States District Judge, Gary L. Sharpe, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). The case was re-assigned to me on January 4, 2010, upon Judge Di Bianco's retirement.
Petitioner brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction rendered in the Schenectady County Court. On January 22, 2002, petitioner pled guilty to First Degree Criminal Possession of a Controlled Substance. Sentencing was adjourned on several occasions, in part so that the District Attorney could evaluate petitioner's cooperation with law enforcement authorities. On approximately May 6, 2003, the County Court judge granted petitioner's original attorney's motion to withdraw and assigned new counsel. In July of 2003, the Schenectady County Court denied petitioner's motion to withdraw his plea, and on October 15, 2003, petitioner was sentenced to an indeterminate term of incarceration of fifteen years to life.
The Appellate Division affirmed petitioner's conviction. People v. LaPorte, 31 A.D.3d 800, 819 N.Y.S.2d 317 (3d Dep't, 2006). The New York Court of Appeals denied leave to appeal on September 13, 2006. People v. LaPorte, 7 N.Y.3d 849, 857 N.E.2d 74 (2006). Petitioner filed two motions to vacate the conviction pursuant to N.Y. CRIM. PROC. LAW Section 440.10 in Schenectady County Court, and one application for a writ of error coram nobis in the Appellate Division.
On June 17, 2005, petitioner's counsel moved to re-sentence petitioner pursuant to the Drug Law Reform Act ("DLRA"). (State Court Record ("SCR") Ex. Q at ¶ 10).*fn1 After a hearing on the motion, petitioner's application was denied. (SCR Ex. V). On July 31, 2008, the Appellate Division, Third Department denied petitioner's appeal of the denial of his motion to re-sentence. People v. LaPorte, 53 A.D.3d 984, 863 N.Y.S.2d 113 (3d Dep't 2008). Petitioner did not seek leave to appeal this decision.
Petitioner filed his original petition for federal habeas relief on December 4, 2006, raising only the claim that his plea was involuntary due to his attorney's conflict of interest.*fn2 (Dkt. No. 1). On April 30, 2007, respondent filed his answer to the petition, together with a memorandum of law and the pertinent state court records. (Dkt. Nos. 10-12). On May 11, 2007, petitioner moved to stay the petition so that he could return to state court to raise additional claims.*fn3 (Dkt. No. 13). Magistrate Judge Di Bianco granted petitioner's motion on July 20, 2007 (Dkt. No. 14), and petitioner returned to state court to file a petition for writ of error coram nobis. (SCR Ex. J).
On June 11, 2008, petitioner moved to lift the stay and amend his petition. (Dkt. No. 23). Judge Di Bianco granted petitioner's motion on September 10, 2008, and the amended petition, together with a memorandum of law were filed on the same date. (Dkt. Nos. 26, 27). Petitioner filed a "traverse" on February 13, 2009, and respondent filed a supplemental memorandum of law,*fn4 together with additional state court records on March 9, 2009. (Dkt. No. 34, 38). Petitioner raises three*fn5 grounds in the amended petition itself:
1. Petitioner's appellate counsel was ineffective because he failed to raise the issue of trial counsel's disqualification.*fn6 (Amended Petition ("Am. Pet.") at ¶ 12(a)) (Dkt. No. 27).
2. The trial court and the prosecutor violated the plea agreement at petitioner's motion for re-sentencing under the DRLA. (Am. Pet. at ¶ 12(b)).
3. Petitioner's guilty plea was involuntary because of trial counsel's conflict of interest. (Am. Pet. at ¶ 12(c)).
For the following reasons, the court will recommend that the petition be denied and dismissed.*fn7
I. Facts and Procedural History
In May 2001, the Schenectady Police Department executed a search warrant at 105 Victory Avenue, a multiple-family dwelling. Petitioner, his wife, and two of their friends were arrested after police discovered 19 kilos, or approximately 45 pounds, of cocaine in a car parked outside of 105 Victory Avenue. Petitioner was indicted on one count of first degree criminal possession of a controlled substance, and one count of third degree criminal possession of a controlled substance. (SCR, Ex. C at RA-1-2).
Petitioner pled guilty on January 22, 2002, but later decided that he wanted to withdraw his plea, based upon what he perceived to be a conflict of interest with his counsel. According to petitioner's July 2003 motion to withdraw the plea, petitioner was originally represented by Attorney Mitch Kessler, but he retained Attorney Jorge Guttlein in August 2001, who represented petitioner "through and including May 7, 2003." (SCR, Ex. B at 68). Attorney Guttlein represented petitioner at the plea hearing on January 22, 2002. At the plea hearing, Attorney Guttlein made an application to keep the terms of petitioner's guilty plea out of the public record because a cooperation agreement would be included as part of the guilty plea. (SCR, Ex. C at RA-38). The court granted counsel's motion and conducted a closed proceeding. (SCR, Ex. G).
In the closed proceeding, the prosecutor and Attorney Guttlein discussed threats made against petitioner's life by an individual named Mr. Cedena. (SCR, Ex. G at 2). The police reports show that the individual's full name is Jonathan Cedena. (SCR, Ex. B at R40). The prosecutor and defense counsel stated that Mr. Cedena was a high-level narcotics trafficker, and that petitioner and Mr. Cedena were involved in a financial dispute that resulted in Mr. Cedena threatening petitioner's life. (SCR, Ex. G at 2-4). The threats eventually caused petitioner to leave his home in Georgia, and to relocate to upstate New York. Id.
The prosecutor and Attorney Guttlein also discussed petitioner's potential cooperation and what information petitioner could provide under a cooperation agreement. (SCR, Ex. G at 7-9). Possible information included facts about "Jonathan Cedena in Georgia and his drug operation," and about homicides committed by someone referred to as "the co-defendant."*fn8 Id. at 7. In exchange for petitioner's guilty plea to the first degree criminal possession of a controlled substance charge and viable cooperative information, the petitioner's maximum sentence would be 16 years to life. Id. The prosecutor then stated that, depending upon the information that petitioner gave, the sentence recommendation "would be substantially lower than 16. . . ." The judge granted Attorney Guttlein's application to keep the terms of the plea agreement confidential, and sealed the record of the proceeding. (SCR, Ex. G at 16-17).
The court resumed the plea hearing in open court. (SCR, Ex. C at RA-46). On the record, the judge found that petitioner had legitimate safety concerns, and explained that "certain information" about the case would be kept confidential, but that the rest of the hearing would proceed in open court. (SCR, Ex. C at RA-47). The prosecutor then outlined the basic terms of the plea bargain, petitioner signed a Waiver of Appeal form, and the court proceeded with the plea colloquy. Id. at RA-48-50. Petitioner acknowledged that he was indicted under the name "Hector LaPorte," but that his real name is Orlando Espiritu Santo. Id. at RA-51.
During these proceedings, petitioner utilized the services of a Spanish interpreter,*fn9 and pleaded guilty to one count of First Degree Criminal Possession of a Controlled Substance in satisfaction of all of the charges in the indictment, as well as a separate matter pending in Police Court. (SCR, Ex. C at RA-53, RA-60). Petitioner stated that he was satisfied with the services of his attorney, that no one forced him to plead guilty, and that he understood his maximum sentence would be 16 years to life. Id. at RA-54-55. Petitioner admitted that on May 12, 2001, he possessed more than four ounces of cocaine at 105 Victory Avenue. Id. at RA-61. The judge accepted petitioner's guilty plea. Id. at RA-62. The court set the sentencing date for March 5, 2002. Id. at RA-63. Petitioner's sentencing was adjourned*fn10 a number of times while petitioner fulfilled his agreement to cooperate with prosecutors in various jurisdictions.
In April 2003, Attorney Guttlein filed a motion to be relieved as petitioner's counsel. (SCR, Ex. H at 2). On April 24, 2003, at a hearing on the motion, Attorney Guttlein stated that "[a]pproximately seven to eight months ago," he was retained by an individual named Jose Manuel Horta-Correa. Id. at 3. At the time he was retained, Attorney Guttlein knew that one of Mr. Horta-Correa's aliases was Jonathan Cedena. Id. Attorney Guttlein asked petitioner if he knew Jose Manuel Horta-Correa. Id. Petitioner stated that he did not. Id. Attorney Guttlein asked Jose Manuel Horta-Correa if he was really Jonathan Cedena, and Mr. Horta-Correa responded, "no." Id. However, Mr. Horta-Correa stated that he knew petitioner "because of Georgia, but he had no business dealings with him, and he just thought he was a nut." Id. Attorney Guttlein then represented both men from the summer of 2002 through April 2003.
Attorney Guttlein stated that approximately four or five days before the April 2003 hearing on the motion to withdraw, he received a letter from the "Southern District," presumably the United States Attorney's Office for the Southern District of New York, stating Mr. Horta-Correa was also Mr. Cedena. (SCR, Ex. H at 3-4). Attorney Guttlein advised the court that he expected he would be relieved as counsel for Mr. Horta-Correa/Mr. Cedena in the Southern District, and that he also sought to be relieved as counsel for petitioner. Id.
Attorney Guttlein argued that he should be relieved as counsel because of a conflict of interest between petitioner and Mr. Horta-Correa/Mr. Cedena. (SCR, Ex. H at 3-6). The court agreed that a conflict of interest existed, but questioned whether the conflict required Attorney Guttlein's withdrawal. Id. at 6. Attorney Guttlein stated that his representation of petitioner was not at all affected by his separate representation of both individuals up until that point. Id. at 12. However, Attorney Guttlein argued that because petitioner had cooperated against Mr. Horta-Correa/Mr. Cedena, and because Attorney Guttlein had information about Mr. Horta-Correa/Mr. Cedena, the attorney could not continue to represent either of the two men. Id. at 7, 11-13.
The state prosecutor argued that since the plea agreement was made long before Attorney Guttlein represented Mr. Horta-Correa/Mr. Cedena, petitioner had suffered "no detriment." Id. at 9. The prosecutor stated that there had been discussions between the attorneys regarding the possibility of replacing the original plea agreement with a plea to a lesser charge and a new sentence of twelve and a half years to life, based upon petitioner's substantial cooperation up to that point. Id. The court denied Attorney Guttlein's application to be relieved as counsel, and expressed some frustration with the delays in petitioner's case. Id. at 21, 13-18. The court scheduled a follow-up hearing for May 12, 2003. Id. at 21. However, on May 7, 2003, the County Court judge granted Attorney Guttlein's renewed application to be relieved as counsel. (SCR, Ex. I). The court assigned Attorney Mansion to represent petitioner. Id.
In July 2003, Attorney Mansion moved to withdraw petitioner's guilty plea upon the ground of ineffective assistance of counsel consisting of, among other things, former counsel's willful, wanton, negligent and/or intentional misleading act(s) directed toward the defendant and the Schenectady County Court and also including former counsel's known conflict on interest in his continued representation of the defendant and of a co-defendant when an actual conflict of interest existed. (SCR, Ex. B at R66). In his affidavit, Attorney Mansion also claimed that Attorney Guttlein told petitioner that his continued cooperation against Mr. Cedena*fn11 would result in a reduction of the previously agreed sentence of 15-life to "time served." Id. at R69 (emphasis in original).
On July 31, 2003, the court denied petitioner's application in a written opinion. Id. at R86-90. The judge stated that this was not a case in which counsel was representing a co-defendant who would be testifying against petitioner. Id. at R89. Since petitioner would be testifying against Mr. Horta-Correa/Mr. Cedena in an unrelated case, and because Attorney Guttlein did not represent Mr. HortaCorrea/Mr. Cedena at the time of petitioner's guilty plea, "the conflict of interest did not operate to prejudice [petitioner]." Id. at R89. The court also found it was not credible that Mr. Guttlein told petitioner that his cooperation would result in a sentence of "time served," because such a sentence would be contrary to what was discussed in court ...