The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner David C. Pettigrew ("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 December 19, 2007, in New York State, County Court, Niagara County, convicting him, upon his guilty plea, of Sexual Abuse in the First Degree (N.Y. Penal Law ("Penal Law") § 130.65) and Criminal Contempt in the First Degree (Penal Law § 215.51[b][vi]). Petitioner was sentenced to a determinate term of seven years imprisonment plus three years of post-release supervision on the sexual assault conviction, and an indeterminate prison term of from one and one-third to four years imprisonment on the contempt conviction.
II. Factual Background and Procedural History
Petitioner was initially charged in or about 2006 in the Niagara County Family Court with abuse and neglect proceedings relating to the victim in this matter, Petitioner's then 14 or 15 year old daughter. When Petitioner violated an order of protection, misdemeanor contempt proceedings were initiated in the Lockport City Court. In or about March through May 2006, Petitioner began committing sex abuse crimes against his daughter, and the Niagara County District Attorney's Office brought the evidence of those crimes, and of Petitioner's violations of orders of protection, before a grand jury.
On July 12, 2007, a Niagara County grand jury charged Petitioner with two counts of Sexual Abuse in the First Degree (Penal Law §§ 130.65) (physical helplessness and forcible compulsion), three counts of Rape in the Second Degree (Penal Law § 130.30), one count of Rape in the First Degree (Penal Law § 130.65), one count of Criminal Contempt in the First Degree (Penal Law § 215.51[b][vi]), and three counts of Criminal Contempt in the Second Degree (Penal Law § 215.50). See Resp't Ex. D at 8-12.
On October 18, 2007, Petitioner and his attorney appeared before Niagara County Court Judge Peter L. Broderick, Sr., and Petitioner agreed to plead guilty to the first and sixth counts of the indictment (first degree sexual abuse (helplessness) and first degree criminal contempt). Plea Mins. [P.M.] 2-6. Petitioner admitted that, for purposes of his own sexual gratification, he had touched his daughter while she was sleeping. P.M. 16. Petitioner also admitted that he "intentionally place[d] or attempt[ed] to place [his daughter] in reasonable fear of imminent physical injury by physical menace while an order of protection was outstanding in her behalf," by restraining her from leaving the house. P.M. 16.
On December 19, 2007, Petitioner was sentenced to a determinate prison term of seven years, plus three years of post-release supervision, for the sexual abuse conviction, and to an indeterminate prison term of from one and one-third years to four years for the contempt conviction. The sentences were ordered to run concurrently. Sentencing Mins. [S.M.] 12.
Through counsel, Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department on the following grounds: (1) the appeal waiver was invalid; and (2) Petitioner's sentence was harsh and excessive. See Resp't Ex. C. Petitioner also filed a pro se supplemental brief arguing that: (1) he did not violate the temporary order of protection (implicated in Count 9 of the indictment charging him with Criminal Contempt in the Second Degree) insofar as said order had expired on or about January 17, 2007; (2) prosecutorial misconduct in the Lockport City Court; (3) Petitioner received ineffective assistance of counsel in Lockport City Court because counsel did not argue that Petitioner had not committed contempt "on February 16, 17, 2007"; (4) Petitioner received ineffective assistance of counsel in the Niagara County Court because counsel elected not to adopt Petitioner's pro se motion; and (5) the Niagara County prosecutor committed misconduct in the grand jury proceedings. See Resp't Exs. C, E. On February 6, 2009, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Pettigrew, 59 A.D.3d 958 (4th Dep't 2009) (Resp't Ex. G); lv. denied, 12 N.Y.3d 820 (2009) (Resp't Ex. I).
D. Petitioner's Pro Se Motion to Vacate the Judgment
On or about January 8, 2009, Petitioner moved, pro se, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10, to vacate the judgment of conviction, arguing, in sum and substance, the same grounds that he argued in his pro se supplemental brief on direct appeal. See Resp't Ex. J. The Niagara County ...