The opinion of the court was delivered by: Honorable Laura Taylor Swain, United States District Judge
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
Pro se petitioner Angelo Grace ("Grace") filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for second-degree felony murder. Grace asserts his confinement is unlawful because of violations of his: (1) Sixth Amendment right to effective assistance of counsel, prior to entering a guilty plea; (2) Sixth Amendment right to conflict-free counsel, after he moved to withdraw his plea; and (3) Fourteenth Amendment due process right to be informed of a statutory fee and surcharge, prior to his guilty plea. The respondent opposes the petition.
On May 6, 1999, Grace, Willie Gaymon ("Gaymon"), Conneil Scott ("Scott") and Corey Williams ("Williams") went to the Manhattan apartment of a record producer, Christopher Betts ("Betts"). Gaymon believed that Betts had stolen a piece of music Gaymon had written. To retaliate against Betts, Gaymon and his companions determined to rob Betts of his electronic equipment. In the course of the robbery, Gaymon, using a machete Scott brought into the apartment, beheaded Betts. Grace removed an electronic keyboard from the apartment, while his associates took other property. Grace and Gaymon fled to South Carolina, where they pursued their rap music careers. In 2000, Grace and Gaymon committed a gunpoint robbery of a South Carolina check-cashing establishment. Fingerprints recovered from the Manhattan crime scene led to the arrest of Gaymon, Grace, Scott and Williams. An indictment charging Grace with two counts of second-degree murder, two counts of first-degree robbery, and one count of second-degree robbery was returned by a New York County grand jury.
On October 12, 2004, Grace and his counsel, Harold Ramsey, appeared before the trial court for a plea hearing. The court noted that it had previously offered a sentence of 20 years to life imprisonment to Grace, and that defense counsel inquired that morning whether the court would consider imposing that sentence concurrently with the 12 years sentence Grace was serving in South Carolina. The court stated it would not make that particular offer. In light of the effect a trial would have on the victim's family, the effort required to bring out-of-state witnesses to New York and summon jurors for a two week trial, the court offered Grace a plea bargain, whereby, in return for his guilty plea to second-degree murder, the court would agree to impose a sentence of 25 years to life imprisonment, to run concurrently with his South Carolina prison term. The court noted that Grace would receive credit for the 13 months he had been incarcerated in this case, as well as the 2 years he had already served in South Carolina. However, the court cautioned Grace that it would not recommend that he be paroled at his earliest eligibility. The court asked Grace's counsel whether he had an opportunity to discuss the offer with his client and if Grace needed more time to talk with his counsel or his family about the plea offer. The following pertinent colloquy ensued:
MR. RAMSEY: He would like some time just a brief moment to speak to his family members.
THE COURT: He has talked with you?
THE COURT: It's about five to eleven now. I've given you a fair amount of time since we began on schedule at 9:45 to talk with your client, during the last hour or so.
MR. RAMSEY: Also, your Honor, I had an opportunity over the weekend to speak with Mr. Grace about the possible scenarios not being able to make any direct offers from the court but if hypothetically this was available, if that was available. We did discuss the ramifications of what your Honor has offered. THE COURT: Okay, thank you, and I understand he wishes to speak with his uncle?
THE COURT: I will permit that provided that both his uncle and Mr. Grace comply with the directions of my court officers as they set up the meeting.
THE COURT: The record will reflect that Mr. Grace has had a chance to speak with his uncle and I think another family member. Does your client wish to avail himself to the offer, Mr. Ramsey?
MR. RAMSEY: I'm sorry, Judge, I was speaking with my client.
THE COURT: Go ahead. (Defendant and his attorney confer.)
THE COURT: Does he want the offer?
MR. RAMSEY: Yes, your Honor. At this time my client authorizes me to withdraw his previously entered plea of not guilty and enter a plea ...