The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner James Winship ("Winship" or "petitioner") has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Winship's state custody arises from a judgment entered on September 27, 2004, in New York State County Court, Cattaraugus County, convicting him, upon his plea of guilty, of Driving While Intoxicated (New York State Vehicle and Traffic Law ("V.T.L.") § 1192(3)) and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (V.T.L. § 511(2)(a)).
On June 26, 2003, Winship was arrested for operating a motor vehicle while intoxicated. Winship lacked a valid driver's license at the time because his license had been revoked in connection with a prior driving while intoxicated charge. On April 14, 2004, petitioner pleaded guilty in Cattaraugus County Court (Nenno, J.) to Driving While Intoxicated, a class "D" felony, and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree. At the plea allocution, Winship confirmed in open court that he was pleading guilty of his own free will; that he had discussed his case and plea with his attorney; and that he understood that he was giving up his right to a trial by jury, to call and confront witnesses; to present evidence; and to force the People to prove their case against him beyond a reasonable doubt. Winship clearly waived his right to appeal on any ground except that his sentence had been improper. Transcript of Plea Hearing at 1-5 (hereinafter "P.__"). With regard to his factual allocution, Winship confirmed that on June 26, 2003, he operated a motor vehicle after consuming several alcoholic beverages and taking narcotic pain medication. He also affirmed that he had been convicted of driving while intoxicated in 1994. He admitted that his license had been suspended on the date of his arrest because it had been revoked after a prior driving while intoxicated charge. Winship then formally pleaded guilty to the two charges. P.5-6. Judge Nenno explained to Winship that he would cap his sentence at one to three years provided that Winship appeared for sentencing and was not rearrested between the date of the plea and sentence. Winship told the court that he agreed to this condition. The court adjourned the matter to July 19, 2004 for sentence. P.2-4, 7.
On July 19, 2004, petitioner did not appear for sentencing. Defense counsel informed the court that he did not know where petitioner was.
During this time, Winship apparently had absconded to South Carolina, where he was arrested for assaulting his thirteen-year-old son, thereby violating both of the terms of plea and sentence agreement. Winship was extradited to New York and, on September 27, 2004, he appeared with counsel appeared before Judge Nenno for sentencing. Given Winship's blatant non-compliance with the terms of the plea and sentence agreement, the prosecutor requested that the trial court impose a lengthier sentence than the agreed-upon term of one to three years. The court agreed that the promised term of one to three years was no longer appropriate and noted that the instant case represented petitioner's ninth alcohol-related driving incident. Transcript of September 27, 2004 Sentencing Hearing at 1-5 (hereinafter "S.__"). The court then stated that it was sentencing petitioner to a term of incarceration of two and one-third to four years. The prosecutor asked the judge whether he meant to indicate a maximum term of seven, and not four, years, and Judge Nenno confirmed that he had been mistaken. Accordingly, Judge Nenno stated that the imposed sentence was two and one-third to seven years incarceration. S.6-7.
Winship then moved, through counsel, to set aside the sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, in June 2005. Winship argued that the sentence should not have been conditioned on whether he was rearrested or appeared for sentence and requested that the originally promised sentence of one to three years be imposed. See Respondent's Exhibit A. The prosecutor opposed the motion. See Respondent's Exhibit B.
On July 28, 2005, Judge Nenno denied the motion on the ground that petitioner's rearrest and failure to appear on the sentencing date "removed the condition of the original cap on sentence." See Respondent's Exhibit C.
On August 22, 2005, petitioner filed his direct appeal in which he argued that (1) he was not properly informed of the consequences should he be rearrested or fail to appear for sentencing; (2) the court imposed a sentence of two and one-third to four years, not two and one third to seven years; (3) petitioner should have received an opportunity to withdraw his plea; (4) petitioner did not receive effective assistance of counsel. See Respondent's Exhibit D. The District Attorney's office filed a brief in opposition. See Respondent's Exhibit E.
The Appellate Division, Fourth Department, unanimously affirmed his conviction: We reject defendant's contention that County Court erred in imposing an enhanced sentence. During the plea colloquy, defendant replied in the affirmative when the court asked if he understood that he would not receive the agreed-upon sentence of 1 to 3 years if he did not comply with two conditions, i.e., that he would not be arrested before sentencing and that he would appear at sentencing. Because defendant failed to comply with either of those conditions, the court was not bound by the sentencing promise and properly imposed an enhanced sentence.
Contrary to defendant's further contention, the court imposed a sentence of 2 1/3 to 7 years for felony driving while intoxicated, having corrected itself after misstating that the sentence was 2 1/3 to 4 years. Finally, to the extent that the further contention of defendant that he was deprived of effective assistance of counsel survives his plea of guilty, we conclude that his contention lacks merit.
People v. Winship, 26 A.D.3d at 768-69 (internal citations omitted). The Appellate Division did not address the issue of whether petitioner had validly waived his right to appeal. The Fourth Department denied his motion to reargue, and the New York State Court of Appeals denied his application for leave to appeal. People v. Winship, 26 A.D.3d 768, 809 N.Y.S.2d 722, rearg. denied, 28 A.D.3d 1258, 813 N.Y.S.2d 690 (App. Div. 4th Dept.), lv. denied, 6 N.Y.3d 899, 817 N.Y.S.2d 634 (N.Y. 2006).
In June 2005, petitioner, acting pro se, filed a second motion to set aside his sentence on the grounds that: (1) his waiver of appeal was invalid; (2) he was deprived of the effective assistance of trial counsel; and (3) his sentence was harsh and excessive. See Respondent's Exhibit J. The prosecution opposed the motion. See Respondent's Exhibit K. On November 16, 2005, Judge Nenno denied the motion on the ground that petitioner's rearrest and failure to appear on the sentencing date "removed the condition of the original cap on sentence." See Respondent's Exhibit L. Petitioner sought leave to appeal Judge Nenno's decision to the Appellate Division. See Respondent's Exhibit M. The District Attorney opposed the application. See Respondent's Exhibit N. On April 28, 2006, the Appellate Division denied petitioner's leave application. See Respondent's Exhibit O.
In April 2006, petitioner moved to vacate his conviction and withdraw his guilty plea, arguing that (1) his plea was not knowing, voluntary, and intelligent; (2) the plea was invalid because the court enhanced his sentence; and (3) he did not receive effective assistance of counsel. See Respondent's Exhibit P. The prosecution opposed the motion. See Respondent Exhibit Q. On May 12, 2006, Judge Nenno denied the motion in light of the fact that all of petitioner's arguments raised in ...