The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
II. Factual Background and Procedural History
Under Superior Court Information No. 26881, Petitioner was charged with one count of burglary in the second degree (New York Penal Law § 140.25(2)). On June 13, 2006, Petitioner waived indictment and pleaded guilty as charged; several other burglaries committed on the same date in the same neighborhood were encompassed within the plea agreement. On November 9, 2006, Petitioner was sentenced as a second felony offender to an eight-year term of incarceration, to be followed by five years of post-release supervision, which was the maximum contemplated by the trial judge as explained to Petitioner during the plea colloquy.
On direct appeal, Petitioner argued that his waiver of the right to appeal was invalid and that his sentence was harsh and excessive. Petitioner also filed a pro se supplemental appellate brief, claiming that his sentence violated the terms of the plea agreement. By an order dated April 25, 2008, the Appellate Division, Fourth Department unanimously and summarily affirmed the judgment of conviction. People v.Rasmussen, 50 A.D.3d 1603 (App. Div. 4th Dept. 2008).
By an order dated September 9, 2008, the New York Court of Appeals denied Petitioner's application for a certificate granting leave to appeal. People v. Ramussen, 11 N.Y.3d 793 (N.Y. 2008).
This timely Federal habeas corpus petition followed in which Rasmussen presents two grounds for relief: (1) the sentence violated the plea agreement, rendering his guilty plea involuntary, not knowing, and not intelligent; and (2) appellate counsel provided ineffective assistance. Respondent argues that Petitioner's claims are unexhausted. In any event, Respondent argues, the the claim that the plea agreement was violated defies the record, which shows Petitioner was sentenced consistently with his understanding; and Petitioner has failed to establish that appellate counsel was ineffective. Petitioner in his reply papers asserts that he is not seeking release from custody but rather to be sentenced in accordance with the terms of the plea agreement, which he claims contemplated a maximum jail term of five years. Petitioner also disputes Respondent's arguments regarding exhaustion and procedural default. The parties have consented to final disposition of this matter by the undersigned.
For the reasons that follow, the petition is dismissed.
In the present case, Respondent has raised the defense of non-exhaustion with regard to both of Rasmussen's claims. Given the district court's discretion to deny unexhausted claims on the merits, 28 U.S.C. § 2254(b)(2) , and the fact that Petitioner's unexhausted claims are "plainly meritless," Rhines v. Weber, 544 U.S. 258, 277 (2005) (holding that it would be an abuse of discretion to grant a stay where the petitioner's unexhausted claims in a "mixed" petition are plainly meritless), the Court will dispose of the claims on the merits since the underlying issuesare easily resolved against Rasmussen under any standard of review. See also Boddie v. New York State Div. of Parole, 285 F. Supp.2d 421, 428 (S.D.N.Y.2003) (finding that "thorny issue" of exhaustion "need not be addressed" since underlying habeas claims were without merit); Brown v. Thomas, No. 02 Civ. 9257(GEL), 2003 WL 941940, at *1 (S.D.N.Y. Mar.10, 2003) (declining to resolve complicated exhaustion issue in parole denial case and noting that in habeas corpus cases "potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit").
B. Ground One: Violation of the Plea Agreement
Petitioner contends that the terms of the plea bargain, as he understood them, were violated. From an off-the record conversation had allegedly had with defense counsel and an ambiguous on-the-record statement made by the prosecutor at the plea hearing, Rasmussen concocts a claim that he had understood his plea agreement to be capped at a five year sentence, which was the statutory minimum for the offense with which he was charged.
Rasmussen has not provided any documentation from his trial attorney to substantiate the alleged off-the-record conversation to which he refers. The single remark by the prosecutor upon which he bases his claim is at most ambiguous and is overridden by his ...