The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Rickey Lon Hoeft ("Hoeft" or "Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a guilty plea in New York State Supreme Court (Erie County) on January 12, 2005, to one count of grand larceny in the second degree. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.
II. Factual Background and Procedural History
Hoeft pleaded guilty to one count of second degree grand larceny in satisfaction of Indictment No. 01213-2005 charging him with three counts of grand larceny in the third degree, pursuant to New York Penal Law ("P.L.") § 155.42 and two counts of grand larceny in the second degree pursuant to P.L.§ 155.40. The prosecution alleged that Hoeft, billing himself as an investment advisor, had convinced three individuals to invest a substantial sum of money into accounts held in his name and then had stolen the invested monies and used them for his own personal expenditures. As part of the plea agreement, he was ordered to pay restitution in the amount of $274,700.00 to the three complainants. The trial court adjourned sentencing for five months and released Hoeft to probation supervision so that he could begin to make restitution. The trial court explained that if restitution was not made, it was contemplating sentencing Hoeft to an indeterminate term of five (5) to fifteen (15) years in prison.
Because he made no attempt during his supervision to make restitution to the victims, he was sentenced on June 23, 2005 to an indeterminate term of five (5) to fifteen (15) years of imprisonment. Hoeft was ordered to make monthly restitution payments commencing six (6) months after his release from prison until the amount owed was paid in full.
Despite the waiver of appeal, Petitioner, represented by new counsel, pursued a direct appeal. Appellate counsel presented two issues: (1) the waiver of appeal was invalid; and (2) the court's sentence was harsh and excessive. Petitioner also presented six issues in a pro se supplemental appellate brief: (1) his conduct was not criminal because he and William Jacobi, one of the victims, were in a partnership; (2) he was denied an opportunity to appear before the grand jury; (3) the conduct of the prosecution denied him due process; (4) trial counsel failed to render effective assistance; (5) the court erroneously precluded him from filing a pre-sentence memorandum; and (6) the sentence was harsh and excessive.
The Fourth Department rejected Hoeft's contention that his waiver of the right to appeal is invalid, explaining that "trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights," including the right to appeal. People v. Hoeft, 42 A.D.3d 968, 969, 838 N.Y.S.2d 842, 844 (App. Div. 4th Dept. 2007) (quotations and citations omitted). The Fourth Department concluded, "[u]pon our review of the plea allocution, we are satisfied that 'defendant's waiver of the right to appeal reflects a knowing and voluntary choice[.]'" Id. (quotation omitted).
With regard to defendant's challenges to the severity of the sentence of incarceration and the amount of restitution ordered, the Fourth Department found that they were encompassed within the waiver of the right to appeal, since the trial court advised Petitioner during the plea proceeding of the maximum term of incarceration and the amount of restitution. Id. (citations omitted).
The Fourth Department concluded that the waiver of the right to appeal also encompassed Hoeft's contention in his pro se supplemental brief that his conduct was not criminal. People v. Hoeft, 42 A.D.2d at 969 (citing People v. Joyner, 19 A.D.3d 1129, 796 N.Y.S.2d 818) ("The waiver by defendant of the right to appeal encompasses his contention that the evidence is legally insufficient to support the [superior court information] because the lab report fails to state the pure weight of the cocaine (see generally People v. Seaberg, 74 N.Y.2d 1, 7-9, 543 N.Y.S.2d 968, 541 N.E.2d 1022). In any event, defendant forfeited that contention by pleading guilty.") (citation omitted). Furthermore, the Fourth Department found that, in addition to Hoeft's contention concerning legal insufficiency being encompassed by his waiver of the right to appeal, this contention was also forfeited as a result of his guilty plea. Id. (citing People v. Gerber, 182 A.D.2d 252, 260, 589 N.Y.S.2d 171, lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823).
The claim that Hoeft was denied his right under New York State statutory law to testify before the grand jury likewise was forfeited by the guilty plea. Id. (citing People v. Sachs, 280 A.D.2d 966, 721 N.Y.S.2d 214, lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215, 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312)).
With regard to Hoeft's contentions that the conduct of the Erie County District Attorney's office was vindictive and that trial counsel provided ineffective assistance, the Fourth Department declined to review them because they were based upon matters outside the record and thus were properly raised in a collateral motion to vacate the judgment pursuant to C.P.L. § 440.10. Id. (citing, inter alia, Joyner, 19 A.D.3d at 1130.
The Fourth Department found unpreserved Hoeft's pro se contention that he was denied the opportunity to submit a memorandum in opposition to the presentence report, and the court declined to exercise its power to review that contention as a matter of discretion in the interest of justice. Id. (citing People v. Perea, 27 A.D.3d 960, 961, 812 N.Y.S.2d 673; C.P.L. § 470.15(6)(a)).
Finally, the Fourth Department summarily dismissed the remaining contentions in Hoeft's pro se supplemental brief, concluding that none required reversal or modification of the judgment.
Hoeft's motion for reargument was denied on September 28, 2007. Hoeft then sought leave to appeal on two issues to the New York Court of Appeals--(1) that the waiver of appeal was invalid; and (2) that the court erred in denying Petitioner's motion to suppress statements. Leave to appeal was denied on October 1, 2007. People v. Hoeft, 9 N.Y.2d 962 (N.Y. 2007).
While Hoeft's direct appeal was pending, Hoeft filed a motion to vacate the judgment pursuant to C.P.L. § 440.10 in the trial court on March 2, 2006,raising two issues: (1) that the trial court lacked jurisdiction to decide the case because of false and prejudicial evidence presented to the grand jury; (2) that the defense counsel was ineffective. The motion was denied on July 11, 2006, in a fairly lengthy decision and order. See C.P.L. § 440.10 Order dated July 11, 2006, signed by Justice Penny Wolfgang. Hoeft then sought leave to appeal the order denying his motion, but on April 7, 2007, the Fourth Department denied permission to appeal.
On August 16, 2006, Hoeft filed a motion to vacate his sentence in the trial court pursuant to C.P.L. § 440.20, raising two issues: (1) his sentence was cruel and unusual; and (2) his sentence was illegal. On March 2, 2007, the court granted part of the relief requested in the motion. The trial court explained that since Petitioner received the maximum term available for a person convicted of second degree grand larceny (five to fifteen years), he could not lawfully be subjected to additional incarceration if he were to pay the restitution. See C.P.L. § 440.20 Order dated March 2, 2007, at p. 2-3 (citing, inter alia, N.Y. CRIM. PROC. LAW § 420.10(4)(d)). Thus, the trial court held that the additional period of incarceration imposed by the sentencing court if Petitioner did not pay restitution was illegal. The trial court accordingly ordered that the Restitution Order be modified to reflect that Petitioner could not be subjected to an additional period of imprisonment if he failed to comply with the terms of the Restitution Order upon his completion of the five-to-fifteen-year sentence. Id.
This timely habeas petition followed, in which Hoeft raises the issues that he presented in his pro se brief on direct appeal to the Appellate Division, Fourth Department. See Amended ...