The opinion of the court was delivered by: Seybert, District Judge:
Petitioner Angel Maldonado filed this Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, that Petition is DENIED.
Petitioner was charged in a state court indictment with defrauding several women out of a total of $71,000. On May 10, 2000, Petitioner appeared before the New York Superior Court, County of Suffolk, to plead guilty.
Before accepting his plea, the Court placed the terms of Petitioner's plea bargain on the record. Among other things, the Court promised that, if Petitioner fulfilled his restitution obligations by September 28, 2000, the Court would sentence him to "one to three years." But, the Court warned, if he failed to meet this condition, the Court would be "free to sentence you to the maximum allowed by law which would be up to two and a third to seven years in state prison." Petitioner acknowledged these terms, then pled guilty. In so doing, Petitioner affirmatively acknowledged that his plea was voluntary and intelligent, and that he was actually guilty of the indictment's 17 counts.
After accepting Petitioner's plea, the State Court agreed to release Petitioner on bail, pending sentencing. The Court imposed three conditions on Petitioner's release: (i) that Petitioner cooperate with the probation department; (ii) that Petitioner not be arrested or charged with any crime while out on bail; and (iii) that Petitioner physically appear in Court on the sentencing date. The Court warned that, if Petitioner failed to comply with any of those three conditions, it would be "free to sentence you with respect to these matters to the maximum allowed by law," and noted that it would be "freed from [its] sentencing promise of an indeterminate sentencing of a minimum of one year, maximum of three years." Petitioner then acknowledged that he understood these conditions, and the Court's warning.
Petitioner neither fulfilled his restitution obligations, nor appeared for sentencing. Instead, he absconded the jurisdiction, first to Puerto Rico, and then to Florida. There, he was captured and brought back to Suffolk County.
On February 12, 2003, Petitioner attempted to withdraw his guilty plea. On March 21, 2003, the Court denied Petitioner's motion.
On April 23, 2003, Petitioner finally appeared for sentencing. Before being sentenced, Petitioner acknowledged that it was "wrong" for him to "accept" the "gifts" his victims gave him, but pronounced himself "offen[ded]" by the charges against them. Petitioner further speculated that he didn't understand why one of his victims "would think I was taking advantage of her," denied the indictment's allegations that he impersonated a police officer, adamantly insisted that he "never conned anybody," and declared that any obligation to repay his victims rested solely on his status as "a Christian." Then, Petitioner went on to complain that, although he "didn't ruin anybody's life," the charges against him forced him "to move out of New York" (i.e., flee the jurisdiction to Puerto Rico and Florida)*fn2 , led to his wife's miscarriage, and "smashed" his reputation.
The Court sentenced Petitioner on each of the seventeen counts, plus an additional count for bail jumping. None of the Court's sentences individually exceeded seven years, the maximum the Court threatened to impose if he failed to fulfill his restitution obligations. But the Court ordered several of Petitioner's sentences to run consecutively, rather than concurrently. Consequently, the Court's sentences added up to an indeterminate term of between five and fifteen years. Neither Petitioner, nor his counsel, objected at the time to the Court's sentences, including the Court's decision to sentence Petitioner to an indefinite term that could exceed seven years.
In May 2004, Petitioner sought to vacate his conviction through a N.Y. C.P.L. § 440.10 action. In this action, Petitioner alleged, among other things, that the trial court erred when it enhanced his sentence without giving him an opportunity to withdraw his plea. In August 2004, the New York County Court, Suffolk County, denied Petitioner's request for relief. The Court concluded that Petitioner's claims were procedurally barred because they were "all based upon matters that appear on the record and as such should have been addressed on direct appeal," noting that "[t]he purpose of C.P.L. § 440.10 is to inform a court of facts not reflected in the record and unknown at the time of the judgment." In addition, the Court found that Petitioner's "claim that his plea of guilty was invalid because his sentence was enhanced was wholly without merit," finding under state law that "the court is not bound to [a violated plea agreement] and may impose an enhanced sentence." Petitioner promptly appealed to the Second Department.
In addition, in October 2004, Petitioner perfected his direct appeal. On direct appeal, Petitioner argued, among other things, that the trial court committed revisable error in sentencing Petitioner to a harsher sentence than the one bargained for, without giving Petitioner an opportunity to withdraw his plea. When he drafted this appeal, Petitioner's attorney knew about Petitioner's § 440.10 action. But Petitioner's attorney did not argue that this § 440.10 action removed any waiver or procedural bar to Petitioner's claims.
The Second Department denied both Petitioner's direct and § 440.10 appeals. In both decisions, the Second Department concluded that Petitioner's arguments concerning his enhanced sentence and his inability to withdraw his guilty plea were procedurally barred.*fn3 Petitioner then filed a writ of error corum nobis. Again, the Second Department denied Petitioner relief.*fn4
Petitioner then commenced this action. Petitioner raises two cognizable claims: (1) the trial court committed reversible error in issuing an enhanced sentence without first permitting him an opportunity to withdraw his plea; and (2) appellate counsel was constitutionally ineffective when he failed to argue that ...