The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Lamar Brown ("petitioner") seeks relief pursuant to 28 U.S.C. § 2254 alleging that his conviction in Erie County Supreme Court of Criminal Possession of a Controlled Substance in the Second Degree (N.Y. Penal Law ("P.L.") § 220.18(1)), a class A-II felony, was unconstitutionally obtained. Petitioner pleaded guilty on March 20, 2003, before Justice Penny M. Wolfgang. He was subsequently sentenced to an indeterminate term of imprisonment of six years to life.
II. Factual Background and Procedural History
Petitioner was charged in a felony complaint with Criminal Possession of a Controlled Substance in the First Degree (P.L. § 220.21(1)), a class A-I felony. According to the Felony Information (Dkt. #15-1), Buffalo Police arrived at 228 Oakmont Avenue in the City of Buffalo to investigate a "violent domestic." Felony Information p. 1. After petitioner permitted police to enter the residence, it was alleged that the officers observed and recovered multiple bags of cocaine that were in plain view in various places, including inside of an open backpack on the kitchen table, and next to a television in the living room. Id. at 1. It was also alleged that police recovered cocaine from a shoebox inside a hallway closet, a measuring cup containing powder cocaine, and a chunk of cocaine found on a scale in a kitchen cupboard. Id. In sum, the recovered cocaine was alleged to exceed four ounces in weight.*fn1 Id. If convicted of the A-I felony, petitioner faced a possible sentence of fifteen to twenty-five years to life. See P.L. § 70.00(3)(a)(i).*fn2
Petitioner pleaded not guilty, waived a preliminary hearing, signed a waiver of indictment, and entered a guilty plea to second-degree drug possession under Superior Court Information ("S.C.I.") No. 21871. See Plea Tr. dated 3/20/2003. On May 19, 2004, he was sentenced as a second-felony offender to an indeterminate term of imprisonment of six years to life, to be served concurrently with a federal sentence imposed following petitioner's conviction of Conspiracy to Distribute Cocaine in the U.S. District Court of Western New York. See Sentencing Tr. dated 5/19/2004. Petitioner did not file a Notice of Appeal.
B. Post-Conviction Relief
On February 7, 2006, petitioner filed a state motion pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 to vacate the judgment of conviction on the grounds that: (1) the court did not have jurisdiction over the action or his person; (2) the judgment was procured by duress, misrepresentation, or fraud on the part of the court or the prosecutor; and (3) he was denied his right to the effective assistance of counsel. See Respondent's Exhibits ("Ex.") B. That motion was denied pursuant to C.P.L. 440.10(2)(c), which mandates dismissal of the motion where the defendant unjustifiably failed to argue such claims on direct appeal despite a sufficient record. See Decision of Supreme Court, Erie County (Wolfgang, J.), S.C.I. No. 21871, dated 5/26/2006 (Ex. B).
The Appellate Division, Fourth Department, granted leave to appeal the denial of petitioner's § 440.10 motion. Ex. C. A Notice of Appeal was subsequently filed and, through counsel, petitioner submitted a brief addressing whether petitioner was denied the right to the effective assistance of counsel when his attorney allowed him to waive indictment and plead guilty under a Superior Court Information. Ex. D. The Fourth Department affirmed the denial of the § 440.10 motion, holding:
Although defendant is correct that the court lacked jurisdiction to permit him to waive indictment and consent to be prosecuted by [SCI] inasmuch as he was charged in the indictment with a class A felony, we nevertheless conclude that he is barred from raising that error by way of a motion to vacate the judgment pursuant to CPL 440.10. Where, as here, " sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review" of the defendant's contentions, the court must deny a motion to vacate the judgment.
People v. Brown, 59 A.D.3d 1058 (4th Dept. 2009) (quoting C.P.L. § 440.10(2)(c); other quotations and citations omitted), lv. denied, 12 N.Y.3d 851 (2009).
Petitioner then filed a petition for habeas corpus in this Court (Dkt. #1) on September 27, 2009*fn3 , seeking relief on two grounds: (1) his guilty plea was unlawful because the state court did not have jurisdiction to waive indictment and proceed with a Superior Court Information; and (2) he received ...