The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Kenneth Barksdale ("petitioner") has brought a petition for habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1), challenging the constitutionality of his conviction of Criminal Possession of a Controlled Substance in the Fifth Degree (N.Y. Penal L. § 220.06). The judgment of conviction, entered on September 5, 2006, followed the entry a guilty plea before Judge Stephen K. Lindley in Monroe County Court. By the terms of the plea agreement, petitioner was sentenced to two and one-half years imprisonment followed by one year of post-release supervision.*fn1
II. Factual Background and Procedural History
On July 26, 2006, petitioner was arrested following the execution of a federal search warranted at his residence in the City of Rochester, New York. On August 7, 2006, Petitioner waived indictment and entered a guilty plea to one count of Criminal Possession of a Controlled Substance in the Fifth Degree for possessing five hundred milligrams or more of cocaine. Plea Tr. 3-14. The plea was taken in satisfaction of additional charges of third- and fourth-degree drug possession. Petitioner was subsequently sentenced as a second felony drug offender to two and one-half years imprisonment with one year of post-release supervision. Sentencing Tr. 4-7.
Shortly after the Monroe County Public Defender filed a Notice of Appeal on petitioner's behalf, petitioner sought permission to proceed pro se on his appeal in the Appellate Division, Fourth Department, which granted petitioner's motion on February 20, 2008. See Respondent's Appendix ("Resp't Appx.") K.
On May 20, 2008, the Appellate Division granted petitioner an extension of time in which to perfect his appeal, "on the condition that appellant perfect the appeal on or before August 19, 2008, and in the event of failure to so perfect, the appeal is hereby dismissed without further order." Resp't Appx L. Less than a month later, petitioner's appellate brief and appendix were returned by the Appellate Division as a result of his failure to comply with the rules of that court. In a letter dated June 11, 2008, petitioner was advised that "[t]he record must be stipulated or settled. If counsel for respondent will not stipulate to the record, you must obtain an order from the trial court settling the record . . . ." Resp't Appx. O.
On June 24, the Office of the Monroe County District Attorney notified petitioner of numerous objections which it had regarding his proposed record on appeal. See Petitioner's Appendix ("Pet'r Appx.") A205. Petitioner then sought to submit a record on appeal to the Fourth Department without a stipulation to the record or an order settling the record. The appellate court denied petitioner's motion on July 28, 2008, stating that, "[i]t is the obligation of the appellant to make the application to settle the record, see 22 NYCRR 1000.4[a][ii]. The proper venue for an application to settle the record is Monroe County Court." Resp't Appx. M. The record indicates that petitioner did not perfect his appeal prior to the August 19, 2008 deadline, and his appeal was dismissed without further order of the appellate court.
C. Post-Conviction Relief
While his appellate proceedings were still pending, petitioner brought the first of two motions to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L ("C.P.L.") § 440.10 in Monroe County Court. In the first motion, dated May 14, 2007, petitioner alleged due process and Fourth Amendment violations, and argued that his assigned counsel was constitutionally ineffective. Resp't Appx. C. The county court denied petitioner's motion pursuant to C.P.L. § 440.10(2)(b), which mandates the denial of a motion to vacate a judgment where the judgment "is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motino to permit adequate review thereof upon such an appeal." Resp't Appx. G.
Following the dismissal of his direct appeal, petitioner brought a second C.P.L. § 440.10 motion in state court, re-stating the allegations contained in his previous motion. Pet'r Appx. A215. The county court denied the motion, citing C.P.L. § 440.10(2)(c), which requires denial of a motion to vacate a judgment where "sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, [but] no such appellate review ... occurred owing to ... the defendant's unjustifiable failure to raise such ground or issue upon an appeal actually perfected by ...