The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Linda Griffin ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her conviction in Erie County Court of Identity Theft in the Second Degree (N.Y. Penal L. § 190.79), following a guilty plea before Judge Shirley Troutman. Petitioner was sentenced as a second felony offender to a term of imprisonment of two to four years.
II. Factual Background and Procedural History
Under Superior Court Information No. 24569, petitioner was charged with Identity Theft in the First Degree (N.Y. Penal L. § 190.80), Identity Theft in the Second Degree (N.Y. Penal L. § 190.79), Forgery in the Second Degree (N.Y. Penal L. § 170.10) and Criminal Impersonation in the Second Degree (N.Y. Penal L. § 190.25) based on her assumption and use of another person's identity to obtain merchandise, utilities, and student loans. Plea Mins. ("P.M.") 3, 15-20.
On January 6, 2005, petitioner pleaded guilty to one count of second-degree identity theft, a class E felony, in satisfaction of all charges. The court agreed to a sentencing commitment of one and a half to three years, conditioned upon petitioner's cooperation with the Department of Probation with respect to the presentence report, which included appearing for her interview and being truthful with regard to the questions asked of her. The court also required that petitioner make "all future court appearances" as scheduled. P.M. 10-11.
Sentencing proceedings were held on April 4, 2005, wherein the court indicated that it would not abide by the sentencing commitment due to petitioner's lack of compliance with the conditions of the agreement, as petitioner failed to appear for her interview with the Department of Probation and did not appear in court on her scheduled sentencing date. Sentencing Mins. ("S.M.") 14-15, 22-23. Petitioner's counsel argued in favor of the court honoring the sentence promise, contending that petitioner was ill on the days of her scheduled appointments, and that petitioner did "attempt" to cooperate with the Department of Probation regarding the presentence investigation. S.M. 16. Counsel provided a physician's note indicating that petitioner was treated at a hospital and was advised not to work for a period of five days. Id.
Petitioner was also given an opportunity to address the court, and explained the circumstances surrounding her lack of compliance with the conditions of the agreement. She apologized to the court, and asked for the "chance to do whatever minimum time is necessary" so that she would be able to repay the debt. S.M. 18-19. At no time did petitioner move to withdraw her guilty plea.
Finding that petitioner had violated the terms of the agreement, the court proceeded to adjudicate petitioner a second felony offender based on a previous conviction of fourth-degree grand larceny, and sentenced her to serve an indeterminate term of imprisonment of two to four years. See N.Y. Penal L. § 70.06. Restitution was also ordered in the amount of $10,728.48. S.M. 4, 6, 13, 25.
Following sentencing, petitioner's appellate counsel filed a brief in the Appellate Division, Fourth Department, raising the following points for appeal: (1) the imposition by the court of an "enhanced" sentence denied petitioner the right to due process; (2) the waiver of appeal was invalid; and (3) the sentence was unduly harsh and excessive. Pet'r Appellate Br. 4-12 (Ex. B). The Fourth Department unanimously affirmed the judgment of conviction. People v. Griffin, 35 A.D.3d 1167 (4th Dept. 2006), lv. denied, 8 N.Y.3d 922 (2007).
Petitioner then filed the instant petition for writ of habeas corpus (Dkt. #1), alleging ineffective assistance of counsel and that her conviction violated the constitutional prohibition against double jeopardy. Petition ("Pet.") ¶ 12(A)-(B). The respondent has submitted an answer and memorandum of law opposing the petition (Dkt. ## 8, 9). For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal ...