The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Christopher Shapard("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 16, 2007, in New York State, Supreme Court, Erie County (Hon. M. William Boller), convicting him, upon his plea of guilty, of Assault in the Second Degree (N.Y. Penal Law ("Penal Law") § 120.05). Petitioner was sentenced to an indeterminate term of fifteen years to life imprisonment.
II. Factual Background and Procedural History
On November 9, 2006, Petitioner was charged in a one-count indictment with assault in the second degree (Penal Law § 120.05). The charge arose from an incident that occurred on or about June 7, 2005, wherein Petitioner, while incarcerated at the Wende Correctional Facility, assaulted Correction Officer ("C.O.") John Attea. See Ind. No. 00178-2006 (11/09/06) at Resp't Ex. A.
On July 16, 2007, Petitioner appeared in Supreme Court, Erie County, before the Hon. Boller, and pleaded guilty to assault in the second degree. On that same date, the People submitted a statement, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 400.16, to sentence Petitioner as a persistent violent felony offender. Petitioner waived a presentence report, which was accepted by the court. Thereafter, the court sentenced Petitioner, as promised, to an indeterminate term of fifteen years to life imprisonment. See Plea and Sentencing Mins. of 07/16/07.
Petitioner appealed his judgment of conviction on the grounds that: (1) the court erred in refusing to waive his DNA databank fee; and (2) the sentence was unduly harsh and severe, or, in the alternative, he should be resentenced due to the court's failure to obtain a presentence report. See Pet'r Br. on Appeal, Points I-II at Resp't Ex. B. The Appellate Division, Fourth Department ("the Appellate Division") unanimously modified the judgment by vacating the sentence and, as modified, affirmed the judgment and remitted the matter for resentencing. The Appellate Division found that Petitioner's waiver of his right to a presentence report should not have been given effect pursuant to C.P.L. § 390.20(4)(a). The appellate court found, in part, that "[s]uch a waiver is not authorized where, as here, an indeterminate or determinate sentence of imprisonment is to be imposed." People v. Shapard, 59 A.D.3d 1054 (4th Dep't 2009) (internal citations omitted).
On April 9, 2009, Petitioner appeared in Supreme Court, Erie County, before the Hon. Boller for resentencing. Prior to re-sentencing, Petitioner moved to withdraw his guilty plea, arguing that waiving the presentence report was an essential element of the plea bargain, that this element induced him to plead guilty, and that had he known of the non-waiveable nature of the presentence report, he would have chosen to proceed to trial. See Resentencing Mins. of 04/09/09 [R.M.] 4-8. He also argued that he was innocent and that he was under duress at the time he entered the guilty plea. Id. at 8-10. The Court denied the motion. Id. at 11. The court adjudicated Petitioner a persistent violent felony offender, pursuant to C.P.L. § 400.16, and resentenced him to an indeterminate term of fifteen year to life imprisonment. Id. at 16.
Through counsel, Petitioner appealed the resentence on the grounds that: (1) the court abused its discretion in denying Petitioner's motion to withdraw his plea on the basis that the waiver of the presentence report was a negotiated part of the plea bargain; and (2) the sentence was unduly harsh and excessive and should be modified in the interest of justice. See Pet'r Br. on Appeal, Points I-II at Resp't Ex. B. In a pro se brief, Petitioner raised the following grounds: (1) that the trial court erred by not addressing his pro se motion to dismiss the indictment at his arraignment; (2) the trial court erred by denying the omnibus motion filed by his defense counsel; (3) that he complied with the statutory requirement of C.P.L. § 190.50(5) and alerted the appropriate authorities of his desire to testify before the Grand Jury; and (4) that the trial court erred in ruling that he had waived his challenge to the indictment by his plea of guilt after denying his motion to withdraw his guilty plea.*fn1 See Pet'r pro se Br. on Appeal, Points One-Four at Resp't Ex. B. The Appellate Division, Fourth Department unanimously affirmed the resentence. People v. Shapard, 74 A.D.3d 1808 (4th Dep't 2010); lv. denied, 15 N.Y.3d 809.
This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) deficiencies in the grand jury proceeding; and (2) that the trial court abused its discretion in denying his motion to withdraw his guilty plea. See Pet. ¶ 12, Grounds One-Three (Dkt. No. 1); Reply (Dkt. No. 8).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
III. Analysis of Petitioner's Claims
1. Grounds One and Three of the Petitioner are Not Cognizable, and, In Any Event, Waived by the Guilty Plea
At grounds one and three of the petition, Petitioner asserts various claims related to and involving the grand jury proceedings. In particular, he claims that he was denied his right to testify before the grand jury, that the trial court erroneously denied his motion to dismiss the indictment on the basis that the prosecution allegedly failed to furnish him with notice of the grand jury presentment, and that the grand jury was "deprived of hearing crucial evidence regarding [his] actual innocence and consequently it returned an indictment against [him]."*fn2 See Pet. ¶ 12, Grounds ...