The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of judgment, with respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #7.
Petitioner has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his guilty plea was involuntary and his counsel ineffective because he was not advised that he would be subject to post-release supervision. Dkt. #1. In an amended petition, petitioner continues to claim that his due process rights were violated when his attorney and the sentencing court failed to inform him that his sentence would include post-release supervision, thereby requiring that his plea be vacated, even though petitioner was re-sentenced to the same term of imprisonment without a period of post-release supervision. Dkt. #24. For the following reasons, the petition is denied.
Petitioner was charged with attempted murder in the second degree, in violation of Penal Law §§ 125.25 & 110.00; two counts of assault in the first degree, in violation of Penal Law §§ 120.10 & 120.10; two counts of robbery in the first degree, in violation of Penal Law §§ 160.15 and 160.15; criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03; and unauthorized use of a vehicle in the first degree, in violation of Penal Law § 165.08, following his statement to law enforcement admitting that on April 25, 2001 he repeatedly shot another occupant of his apartment building, pushed him down the stairs, took his keys and wallet out of his pocket, dragged the victim to the front of the basement, mopped up the victim's blood, picked up the shells from the gun, cleaned himself up and took the victim's car to the Galleria Mall where he used the victim's credit card to buy a pair of sneakers.
On October 9, 2001, petitioner entered a plea of guilty to one count of assault in the first degree in violation of Penal Law § 120.10 and one count of robbery in the first degree in violation of Penal Law § 160.15. Dkt. #1. On December 19, 2001, petitioner was sentenced concurrently to a determinate term of imprisonment of 20 years. Dkt. #1. By Memorandum and Order dated April 14, 2004, Hon. Sheila A. DiTullio, J.C.C., denied petitioner's motion pursuant to Criminal Procedure Law § 440.20. to set aside his sentence as invalid because he had not been informed of the automatic five-year post-release supervision mandated by Penal Law § 70.45 because the 20-year concurrent sentence was not "unauthorized, illegally imposed or otherwise invalid as a matter of law." Dkt. #1, p.13. The New York State Supreme Court, Appellate Division, Fourth Department, denied leave to appeal on July 16, 2004. Dkt. #1, p.15.
On direct appeal, petitioner argued that his appeal waiver was invalid; the trial court abused its discretion by failing to afford him youthful offender status; and his sentence was harsh and excessive. People v, Williams, 15 A.D. 3d 863 (4th Dep't. 2005). The judgment of conviction was unanimously affirmed by the Appellate Division on February 4, 2005. Id. To the extent that petitioner contended that his plea was not knowing, voluntary or intelligent, the Appellate Division determined that "by failing to move to withdraw his plea or vacate the judgment of conviction," petitioner failed to preserve the issue for review. The Appellate Division further determined that petitioner's claim that his plea was affected by ineffective assistance of counsel involved matters beyond the record which were not reviewable on direct appeal. Id. The Court of Appeals denied leave to appeal and denied reconsideration. People v, Williams, 5 N.Y.3d 771 (2005) and 5 N.Y.3d 811 (2005).
By Memorandum and Order dated August 11, 2005, Hon. Sheila A. DiTullio, J.C.C., denied petitioner's motion pursuant to Criminal Procedure Law § 440.10. to vacate judgment on the ground that his plea was not voluntary and that counsel failed to provide effective assistance. Dkt. #1, p.18. As pertains to the argument raised in the current petition, Judge DiTullio found that The allegation that counsel failed to advise defendant of the period of post-release supervision is made solely by defendant and lacks independent evidentiary support, such as an affidavit from counsel. Taking into account that defendant does not allege a viable defense to the charges, the court finds no reasonable possibility that defendant would have rejected the plea solely because the sentence entailed post-release supervision. This portion of the motion is therefore denied (CPL § 440.30[d]).
Dkt. #1, p.20. The Appellate Division granted leave to appeal and affirmed Judge DiTullio's determination by Order entered March 16, 2007. People v. Williams, 38 A.D.3d 1301 (4th Dep't 2007). The New York State Court of Appeals denied leave to appeal. People v. Williams, 9 N.Y.3d 871 (2007).
Petitioner commenced an action pursuant to article 78 of the New York Civil Practice Law and Rules ("CPLR"), alleging that the Department of Correctional Services illegally added a period of post-release supervision to his determinate sentence. Dkt. #16, p.3. The Hon. Mark H. Dadd, Acting Supreme Court Justice, vacated the period of post release supervision imposed by the Department of Correctional Services, explaining:
It appears that the petitioner is subject to a period of post-release supervision that was imposed by the Department of Correctional Services. The respondent has not disputed that the sentencing court failed to impose such a term on his December 19, 2001 sentence. Thus, the period of post-release supervision was invalid.
Dkt. #16, p.4. Upon appeal, the Appellate Division determined that Judge DiTullio's sentence to a determinate term of imprisonment of twenty years was illegal, because it did not include a period of post-release supervision. People v. Williams, 82 A.D.3d 1576, 1577 (4th Dep't 2011). The Appellate Division explained that The Department of Correctional Services (DOCS) subsequently administratively imposed a five-year period of PRS, which defendant successfully challenged in a CPLR article 78 proceeding. In granting defendant's petition, Supreme Court vacated the PRS component of the sentence imposed by DOCS. Defendant thereafter wrote a letter to County Court requesting a "resentencing hearing." The court granted defendant's request and appointed defense counsel to represent him. When defendant appeared in court with defense counsel for resentencing, defendant requested that the court vacate his guilty plea. The court denied that request and instead resentenced defendant to the original sentence of a determinate term of imprisonment of 20 years with no postrelease supervision.
Id. The Appellate Division then rejected the defendant's argument that the court erred in refusing to vacate his guilty plea and in resentencing him to the sentence originally imposed, explaining:
Because the original sentence was imposed between September 1, 1998 and June 30, 2008, the court was authorized to resentence defendant pursuant to Penal Law § 70.85. The statute provides that, with the consent of the District Attorney, a court that imposed a determinate term of imprisonment without the mandatory period of PRS may, upon resentencing, "reimpose the originally imposed determinate sentence of imprisonment without any term of [PRS], which then shall be deemed a lawful sentence. As the Court of Appeals recognized in People v. Boyd, 12 N.Y.3d 390, the purpose underlying section 70.85, as noted in the Governor's Approval Memorandum concerning that statute, was to "'avoid the need for pleas to be vacated when the District Attorney consents to ...