The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Rand A. Thomas ("Thomas" or "Petitioner") brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered on April 11, 2008, following his guilty plea to two felony counts of driving while intoxicated. Petitioner is presently serving an indeterminate term of one and one-third to four years imprisonment for these convictions.
Petitioner asserts in his habeas petition that he was denied his Sixth Amendment right to the effective assistance of counsel during the plea proceeding and at sentencing. Specifically, Petitioner claims that his trial counsel falsely promised that he would receive a probation-only sentence. Petitioner also faults trial counsel for failing to argue that a 1992 driving while intoxicated conviction was defective on Double Jeopardy grounds and was improperly used as a predicate felony conviction to enhance his current sentence.
Neither of these claims were raised on direct appeal or in any state-court collateral proceeding. Respondent argues that Petitioner has failed to exhaust his ineffective assistance of counsel claims because they have not been presented in any state-court forum. Petitioner has acknowledged in pleadings filed with this Court that the claims are unexhausted. He has affirmatively stated that he will not return to state court in order to exhaust them, however.
For the reasons that follow, the Court finds that the claims, although unexhausted, may be dismissed under 28 U.S.C. § 2254(b)(2), because they are wholly without merit under any standard of review.
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State."); accord Daye v. Attorney Gen'l of N.Y., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc).
To properly exhaust a habeas claim, a petitioner is required to present that claim to each available level of the state courts. E.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must invoke "one complete round of the State's established appellate review process"). The petitioner also must have fairly presented the federal nature of his claim to the state courts. E.g., Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam).
However, pursuant to the 1996 amendments to the habeas statute, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."
28 U.S.C. § 2254(b)(2). There remains no specific guidance from the Second Circuit or the Supreme Court regarding the standard to be used determining whether an unexhausted claim should be dismissed on the merits under 28 U.S.C. § 2254(b)(2). A majority of the district courts have used a "patently frivolous" standard, while others use a "non-meritorious" standard, dismissing a claim when it is "perfectly clear that the [petitioner] does not raise even a colorable federal claim." E.g., Jones v. Lape, No. 9:08-CV-1310 (TJM)(ATB), 2010 WL 3119514, at *10 (N.D.N.Y. May 28, 2010) (citing Hernandez v. Conway, 485 F. Supp.2d 266, 273 (W.D.N.Y. 2007) (collecting cases)). *fn1
A. Ineffective Assistance of Trial Counsel at the Plea Proceeding Petitioner claims that trial counsel informed him that he would receive five years of probation and instead he was sentenced to a term of imprisonment. Notwithstanding Petitioner's failure to exhaust this ineffective assistance claim, it should still be dismissed on the merits pursuant to the authority conferred under 28 U.S.C. § 2254(b)(2). Regardless of the standard against which the ineffectiveness claim is measured, it cannot provide a basis for habeas relief.
A guilty plea operates as a waiver of important constitutional rights, and is valid only if done knowingly, intelligently, and voluntarily "'with sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)); see also Hill v. Lockhart, 474 U.S. 52, 56 (1985) (stating that a guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to the petitioner). "[A] plea's validity may not be collaterally attacked merely because the defendant made what turned out, in retrospect, to be a poor deal." Bradshaw, 545 U.S. at 186 (citations omitted). Rather, a defendant may challenged the validity of his guilty plea only if can show either that he ...