The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Dorian J. Facen ("Facen" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 1999 conviction and a 2008 conviction. See Petition (Docket No. 1). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). (Docket No. 10).
II. Factual Background and Procedural History
In 1999, Facen pleaded guilty in Erie County Court to two counts of criminal possession of a controlled substance in the fifth degree and one count of criminal possession of a weapon in the third degree and was sentenced an aggregate term of two years imprisonment. A three-year term of post-release supervision subsequently was appended to his determinate sentence. See N.Y. PENAL LAW § 70.45(1) (requiring an additional period of post-release supervision to be added to each determinate sentence).
On appeal, the Appellate Division held, in pertinent part, that because the term of post-release supervision had expired, it could not afford Petitioner any meaningful relief. Accordingly, it dismissed the portion of his appeal challenging the post-sentencing imposition of the term post-release supervision. Petitioner, in his application to the New York Court of Appeals, argued that because the defect went to the plea itself and not merely the sentence, the issue was not moot. The Court of Appeals denied leave to appeal. Petitioner's application for reconsideration also was denied.
Represented by counsel, Facen filed a motion pursuant to C.P.L. § 440.10 to vacate his conviction, arguing, among other things, that he would not have pleaded guilty had he been informed of the mandatory period of post-release supervision. The trial court, in a decision and order filed June 11, 2007, found Facen's claim to be not credible and further found that the issue was moot since the post-release supervision term had already expired.
In 2008, Facen pleaded guilty in New York State Supreme Court (Erie County) to attempted criminal sale of a controlled substance in the third degree and attempted assault in the second degree, for which he received an indeterminate sentence of three to four years. Facen is currently serving that sentence. On appeal of the 2008 conviction, the Appellate Division held that Facen failed to establish that the plea giving rise to the prior felony conviction was unconstitutionally obtained on the ground that he was not informed of the imposition of post-release supervision; and that the record established that his appellate-rights waiver was voluntary, knowing, and intelligent. People v. Facen, 71 A.D.2d 1410, 897 N.Y.S.2d 347, 348 (App. Div. 4th Dept. 2010) (citing, inter alia, People v. Catu, 4 N.Y.3d 242)). Leave to appeal was denied.
On June 19, 2009, Petitioner filed a motion to set aside his sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, arguing that because he was not informed of the term of post-release supervision at the time he pleaded guilty in June 1999, his plea was not entered into on a knowing, voluntary, and intelligent basis. Petitioner argued that this defect rendered the 1999 conviction unconstitutional, making it unusable as a predicate felony for purposes of adjudicating him as a second felony offender in 2008. Therefore, Petitioner argued, his second felony offender sentence with regard to the 2008 sentence was illegal. The trial court denied the motion on April 4, 2010.
D. The Federal Habeas Petition
This federal habeas petition followed (Docket No. 1), in which Facen contends that (1) his 1999 conviction was obtained in violation of his due process rights because he was not informed of the mandatory period of post-release supervision (Petition, ¶22(A)); (2) the "9 year delay in assignment of counsel & 10 year delay in hearing petitioners [sic] appeal" of his 1999 conviction "caused prejudice" (Petition, ¶22(B)); (3) he received "ineffective assistance of appellate counsel in not bringing to light the fact that unreasonable delay was prejudicial amongst other things . . . ." (Petition, ¶22(c)); and (4) the "2008 sentencing court used a conviction [i.e., the 1999 conviction] obtained in violation of the constitution of the United States to enhance sentence" (Petition, ¶22(D)).
Respondent moved to dismiss the petition with regard to Facen's contentions concerning his 1999 conviction (claims one, two, and three), arguing that these claims are moot since Facen is no longer "in custody" or suffering "collateral consequences" as a result of the 1999 conviction. See Respondent's Motion to Dismiss ("Resp't Mot.") at 2 (Docket No. 6) (citing Maleng v. Cook, 490 U.S. 488, 492 (1989)). Respondent also argued that Facen's claim concerning the illegal sentence enhancement (claim four) is without merit. Id. at 3 (citing, inter alia, Lackawanna County Dist. Att'y v. Coss, 532 U.S. 394 (2001); Bomasuto v. Perlman, __ F. Supp.2d ___, 2010 WL 271262 (W.D.N.Y. 2010) (Bianchini, M.J.)). Finally, Respondent argued that Facen had failed ...