The opinion of the court was delivered by: John Gleeson, United States District Judge:
Edwin Cruz, who is currently incarcerated at Southport Correctional Facility, brings this petition, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cruz was sentenced by the Supreme Court for Kings County to an indeterminate prison term of 20 years to life upon his plea of guilty to murder in the second degree. Cruz now seeks habeas relief from his conviction. Cruz appears to present three main arguments in support of his petition: (1) his confession to the police was unconstitutionally obtained; (2) his counsel was ineffective in failing to obtain an order suppressing that confession; and (3) his waiver of his right to appeal was defective because it was not knowing and voluntary. Cruz also argues that he should be awarded a default judgment because the state never responded to a habeas petition that he allegedly filed in 2008. For the reasons stated below, the petition is denied.
The record establishes that the prosecution was prepared to present the following
evidence against Cruz, if the case had gone to trial.*fn2
On November 12, 1994, at approximately 6:00 P.M., near the
intersection of Autumn Avenue and Etna Street in Brooklyn, Cruz had an
argument with Juan Santiago. After the argument, Cruz ran to his
house, grabbed a .350 Magnum from inside, and returned to that same
street corner. He pointed the gun at Santiago, who started to run
away. Cruz fired the gun, and Santiago fell. Cruz then shot Santiago
again, at least once. Santiago sustained multiple gunshot wounds to
the head and was pronounced dead at the scene. Cruz fled to the
Dominican Republic the next day and remained there for two years
before returning to the United States.
B. Cruz's Post-Arrest Statements*fn3
Cruz was arrested in the lobby of his apartment building in the Bronx at about 1:25 P.M. on September 8, 2002 -- about eight years after Santiago's killing. The arresting officer, New York Police Detective Steven Amalfitano, escorted Cruz to the 75th Precinct in Brooklyn and placed Cruz in an interview room. At around 2:45 P.M., Amalfitano returned to the interview room where Cruz was waiting. Amalfitano testified at the suppression hearing that the first thing he did upon entering the interview room was to read Cruz his Miranda warnings directly from a card. After reciting each right, he asked if Cruz understood, and Cruz said he did. Amalfitano then handed Cruz the card and asked him to read the Miranda warnings that were printed in Spanish on the other side of the card. Cruz repeated out loud each warning. Then, Amalfitano had Cruz put the date, time, and answer to every question on the Miranda card and sign his name -- on both the English side and the Spanish side of the card.*fn4
After Cruz waived his Miranda rights (verbally and by writing "yes" next to each question and signing his name), he gave an oral statement to Amalfitano, describing the murder of Santiago. The statement began at about 2:50 P.M., and lasted about 35 to 40 minutes. Amalfitano then asked Cruz whether he would be willing to write out a statement. Cruz said he could not write it himself, so Amalfitano wrote it instead, and they went back over the details of the incident as Amalfitano wrote it down. After Amalfitano had reduced the statement to writing, he read it back to Cruz and asked if he wanted to make any changes or alterations to correct it. Cruz indicated he did not. Then both Cruz and Amalfitano signed the statement. It was then about 4:00 P.M. At the suppression hearing, Amalfitano read this written statement out loud in full to the court.*fn5
Cruz's written statement described the murder as follows. Santiago had moved into Cruz's neighborhood a few months before the incident, and Santiago frequently threatened and harassed him.*fn6 On the day of the murder, Santiago hit Cruz and told him he was going to kill him. Santiago told Cruz that his brother had a gun, and when he came back, he would kill Cruz. That's when Cruz ran to his house, grabbed the gun, and returned to the corner. Santiago didn't have anything in his hands. Cruz pointed the gun at Santiago and Santiago started to run away. Cruz shot Santiago once and he fell. Then Cruz shot him again. Cruz disposed of the gun somewhere in Brooklyn and fled to the Dominican Republic, where he stayed for almost two years before returning to New York.*fn7
In addition to the oral and written statements that Cruz made to Detective Amalfitano, Cruz also made a videotaped statement to representatives from the Kings County District Attorney's office in the early morning hours of September 9, 2002.*fn8 In this videotaped statement, Cruz again waived his Miranda rights and then went on to describe the events of the murder very similarly to the written statement recorded by Detective Amalfitano. The state trial court viewed this videotape during the suppression hearing.
C. Conviction and Direct Appeal On December 9, 2003, Cruz pled guilty to second-degree murder, in reliance on the trial court's promise to sentence him to no more than 20 years to life.*fn9 In conjunction with his guilty plea, Cruz signed a waiver of his right to appeal, and verbally indicated that he understood that "[b]y signing that paper, you're waiving that right [to appeal]," and that, "[i]n other words, this case will not be heard by any other court." Plea Trans. at 12.
At the January 22, 2004 sentencing proceeding, the victim's sister spoke to request the maximum sentence, and the prosecution and defense counsel each argued for maximum and minimum sentences, respectively. Cruz himself also spoke, and apologized for his crime. Among other things, Cruz said
Once again, I apologize and I am very sorry. Once again, I know with that I cannot return your brother. But I didn't want this to happen this way, ever. It happened because I was nervous and the pressure. I told your brother I did not want a problem with him. I told him many times. I was in fear for my life, because your brother had a bad temper.
I have a good temper. And I do tell people, "Leave me alone, I don't want to have a problem." But I saw his attitude and I feared for myself. And he told me that he was going to kill me, and he told me many times. He swear that -- and he got on his knee and he swear. And he [broke my] glasses . . . and he told me, "I'm going to kill you." I was afraid. I feared for my life.
. . . . . . . If by me serving the maximum sentence would make them feel better, then let justice be served. I feel very bad. I have nothing else to say. Only that I'm very sorry.
Sentencing Trans. at 15-16. The trial court sentenced Cruz to 20 years to life, the maximum sentence available in light of the promise the court had made to Cruz at the time of his plea. The court said that "at 24 years old no one should have to tell you that murder is wrong. The only mitigating factor is your youth at the time of the commission of the offense and the fact that you have no criminal history." Id. at 17.
Cruz appealed his conviction to the Appellate Division, Second Department. His appellate counsel, who did not represent Cruz in the trial court, made three arguments on appeal:
(1) in light of Cruz's statements to the Probation Department and at sentencing suggesting provocation and the absence of an intent to kill, the court should not have imposed sentence without ensuring Cruz's guilty plea was voluntary, knowing, and intelligent; (2) Cruz's sentence of 20 years to life was excessive; and (3) the court improperly imposed a $210 surcharge and victim assistance fee. Def's Ap. Br. at i-ii.
On January 10, 2006, the Appellate Division agreed with Cruz's third point, and modified the judgment to reduce the surcharge and victim assistance fee from a sum of $210 to $155 to accord with the governing law at the time of Cruz's crime. See People v. Cruz, 25 A.D.3d 565, 566 (2d Dep't 2006). The court then affirmed the judgment as modified, rejecting Cruz's other arguments. Id. The court rejected Cruz's claim that his sentence was excessive on the ground that the claim was not properly before it because Cruz had waived his right to appeal. Id. The court rejected Cruz's claim regarding the voluntariness of his plea by saying that "[t]he defendant's remaining contention is without merit." Id. On March 15, 2006, the New York Court of Appeals denied Cruz's application for leave to appeal. See People v. Cruz, 6 N.Y.3d 832 (2006).
D. State Collateral Proceedings
1. Cruz's First § 440 Motion
While his direct appeal was still pending, Cruz filed a pro se motion
dated October 17, 2005, in the Supreme Court for Kings County, seeking
to vacate his conviction pursuant to N.Y.C.P.L. § 440.10.*fn10
In that motion, Cruz made three claims: (1) his guilty plea
was not knowing and voluntary because the court did not make further
inquiry to ensure he possessed the requisite intent to kill; (2) his
trial counsel was ineffective in failing to negotiate a plea
agreement; and (3) his statement to police was unconstitutionally
The § 440 court denied the motion in full as procedurally barred.*fn11 It denied Cruz's claim that the trial court failed to ensure that his plea was knowing, voluntary, and intelligent on the ground that the Appellate Division, which had decided Cruz's direct appeal while the § 440 motion was pending, had rejected that claim on the merits. See N.Y.C.P.L. § 440.10(2)(a). The court denied the other two claims on the ground that they could have been raised on direct appeal but were not. See id. § 440.10(2)(c). Specifically, the court found that defense counsel's plea negotiations appeared in the minutes of the plea proceeding, and the suppression hearing minutes contained all of the information surrounding the taking of defendant's ...