The opinion of the court was delivered by: Thomas J. Mcavoy Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
The records supplied to this Court establish that in a letter
dated May 19, 2009, the Rensselaer County District Attorney ("District
Attorney") offered petitioner, pro se Stephen
Strain an opportunity to plead guilty to attempted robbery in the
second degree, in violation of New York Penal Law ("Penal Law") §§
110.00 and 160.10, in satisfaction of charges that were brought
against him in a felony complaint which included a charge of attempted
robbery in the first degree. Dkt. No. 1 at 36. *fn1
That letter noted that if petitioner accepted that offer,
he would receive a determinate, seven year prison term, to be followed
by five years of post release supervision. Id.
That correspondence further provided that if the offer was not
accepted prior to June 4, 2009, it would be withdrawn.
Id. Petitioner did not accept that offer, and a
Rensselaer County Grand Jury thereafter charged him with attempted
robbery in the first degree, in violation of Penal Law §§ 110.00 and
160.15(3); burglary in the second degree, contrary to Penal Law §
140.25(1)(c); and criminal possession of a weapon in the third degree,
in violation Penal Law § 265.02(1). See
Appellant's Brief on Appeal ("App. Br.") (Dkt. No. 13-2) at 3.
On September 25, 2009, petitioner appeared before the county court
for purposes of entering a guilty plea. At that time, defense counsel
noted that petitioner would be pleading guilty to the second count in
the indictment ( i.e. , burglary in the second
degree) in full satisfaction of all charges returned against
petitioner in that instrument. See Transcript of
Change of Plea ("Plea Tr.") (Dkt. No. 1 at 15) at 3. Petitioner's
counsel also noted at that time that under the terms of that plea
proposal, petitioner "would receive an eight and a half year
determinate sentence [and] . . . five years post release supervision."
Id . After the trial court informed petitioner of
the various rights he
was waiving by entering a guilty plea, petitioner answered a
series of questions posed to him by the court which ensured that
petitioner's plea was knowingly, intelligently and voluntarily made.
Id. at 4-9. He then admitted to entering a
Domino's pizza restaurant in Rensselaer County on May 9, 2009, and
using or threatening to use a dangerous instrument while intending to
commit a crime at that establishment. Id. at 9-10.
The trial court thereafter accepted petitioner's guilty plea.
Id. at 10.
On November 2, 2009, the District Attorney prepared a second felony offender statement relating to petitioner in which the prosecutor declared that on March 3, 2003, petitioner was convicted of robbery in the third degree in Albany County Court, and thereafter sentenced to an indeterminate prison term of one to three years. See Second Felony Offender Statement ("SFOS") (Dkt. No. 13-1).
On November 23, 2009, petitioner appeared with counsel for
purposes of sentencing on the burglary conviction. See
Transcript of Sentencing ("Sentencing Tr.") (Dkt. No. 1 at 29).
At that proceeding, petitioner admitted to the previous conviction
referenced in the SFOS, Sentencing Tr. at 5, and the county court then
imposed the agreed-upon sentence of eight and one-half years, to be
followed by a five year period of post-release supervision.
Id. at 5-6.
With the assistance of counsel, petitioner filed an appeal of the foregoing with the New York State, Supreme Court, Appellate Division, Third Department. See App. Br. The District Attorney filed a brief in opposition to that appeal, Dkt. No. 13-3, and on September 23, 2010, the Appellate Division affirmed the judgment of conviction. People v. Strain , 76 A.D.3d 1123 (3d Dep't 2010). Petitioner did not file an application seeking leave to appeal that decision with the New York Court of Appeals.
Petitioner thereafter filed a motion to set aside the imposed
sentence pursuant to New York
Criminal Procedure Law ("CPL") § 440.20 ("CPL Motion") (Dkt. No.
13-8). In that application, petitioner claimed he had received the
ineffective assistance of counsel because his attorney did not object
to the District Attorney's alleged failure to comply with CPL § 400.21
concerning the filing of a second felony offender statement,
*fn3 or thereafter contest the fact that
petitioner was sentenced as a second felony offender. CPL Motion at
3-5. The county court denied petitioner's application, finding that:
(1) the District Attorney complied with CPL § 400.21; (2) petitioner
was properly sentenced as a second felony offender; and (3) petitioner
had received the effective assistance of counsel. See
Decision and Order of Rensselaer County Court Judge Robert M.
Jacon (1/21/11) ("January, 2011 Decision") (Dkt. No. 13-5) at 2-4.
Petitioner did not seek leave to appeal the January, 2011 Decision
from the Appellate Division.
Petitioner commenced the present action by filing a petition seeking a writ of habeas corpus on March 17, 2011 in the Eastern District of New York. Dkt. No. 1. Since the conviction challenged herein occurred within the geographical boundaries of the Northern District of New York, on March 28, 2011, United States District Judge Allyne R. Ross transferred this matter to this District. Dkt. No. 2. This Court thereafter directed petitioner to file an amended pleading if he wished to proceed with this action (Dkt. No. 4), and on April 21, 2011, petitioner filed an amended petition in compliance with the terms of that order ("Am. Pet.") (Dkt. No. 5).
In that pleading, petitioner claims that: (1) his trial attorney rendered ineffective assistance; and (2) he was illegally sentenced by the county court as a second felony offender. See Am. Pet., Grounds One, Two. *fn4 On September 19, 2011, the Office of the Attorney General of the State of New York, acting on respondent's behalf, filed an answer in opposition to petitioner's amended pleading. Dkt. No. 11. At that time, respondent's counsel also filed a memorandum of law in opposition to the amended pleading ("Resp. Mem.") (Dkt. No. 10), together with various state court records related to the criminal matter challenged herein (Dkt. No. 13).
On October 3, 2011, petitioner filed a reply memorandum of law in further support of his habeas application. Dkt. No. 14 ("Reply").
This matter is currently before this Court for disposition.
Respondent contends that this Court must deny and dismiss petitioner's amended petition because he failed to fully exhaust his habeas claims in the state courts. See Resp. Mem. at 8-9. Respondent specifically argues that petitioner raised his claims alleging ineffective assistance of counsel in his CPL Motion, but that he never sought leave to appeal the denial of that application from the Appellate Division. Resp. Mem. at 8. With respect to petitioner's second and final claim, respondent argues that this theory is unexhausted because when petitioner asserted his challenge to the sentence imposed on him in the context of his direct appeal, "[p]petitioner relied only on New York's Criminal Procedure Law and state cases to support his claims, and did not rely at all on the United States Constitution or federal cases." Id. Respondent contends that such ground is also unexhausted because petitioner never sought leave to appeal the Appellate Division's order that denied petitioner's direct appeal from New York's Court of Appeals. Id.
In light of the foregoing, a brief review of the exhaustion doctrine applicable to federal habeas corpus petitions is in order.
A federal district court may not grant the habeas petition of a
state prisoner "'unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State.'"
Richardson v. Superintendent of Mid-Orange Correctional
Facility , 621 F.3d 196, 201 (2d Cir. 2010) (quoting 28
U.S.C. § 2254(b)(1)(A)), cert. denied sub nom. Richardson v.
Inserra , ___ U.S. ___, 131 S.Ct. 1019 (2011). This is
because "[s]tate courts, like federal courts, are obliged to enforce
federal law." Smith v. Duncan , 411 F.3d 340, 347
(2d Cir. 2005) (quoting O'Sullivan v. Boerckel ,
526 U.S. 838, 844 (1999)). As the Supreme Court noted in
O'Sullivan , "[c]omity . . . dictates that when a
prisoner alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the
first opportunity to review th[e] claim and provide any necessary
relief." Id. , 526 U.S. at 844 (citations
omitted); see also Smith , 411 F.3d at 347 (quoting
A petitioner exhausts his state remedies in the federal habeas context by: "(i) present[ing] the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts); and (ii) inform[ing] that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (citations omitted); see also Aller v. Lape , No. 09-CV-1192, 2011 WL 1827443, at *3 (E.D.N.Y. May 12, 2011) (citing Ramirez ) (other citation omitted). A petitioner fairly presents the federal nature of his claims to the state courts by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Carvajal v. Artus , 633 F.3d 95, 104 (2d Cir.) (citation omitted), cert. denied , ___ U.S. ___, 132 S.Ct. 265 (2011); see also Clark v. Bradt , No. 10-CV-0964, 2012 WL 28275, at ...