The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Quincy D. Nolley ("Nolley" or "Petitioner) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody. Nolley is incarcerated pursuant to a judgment of conviction entered against him on November 22, 1993, in Erie County Court of New York State, following a guilty plea to one count of attempted second degree murder and one count of first degree robbery, in satisfaction of a fifteen-count indictment.
II. Factual Background and Procedural History
A. The Guilty Plea and Sentencing
Nolley was indicted, along with two co-defendants, with two counts of second degree murder, attempted second degree murder, two counts of first degree assault, four counts of first degree robbery, three counts of second degree robbery, and two counts of fourth degree criminal possession of a weapon. The charges stemmed from the robbery and murder of Michael Miskell and the beating of Lori Seifert on April 17, 1992.
On January 14, 1993, Nolley pleaded guilty to attempted second degree murder and first degree robbery, admitting that during the course of a planned robbery, he struck Seifert several times with a car jack, and gave a knife to one of his accomplices, who killed Miskell. Nolley agreed to testify against his accomplices at any future trial and to waive his right to appeal.
On November 22, 1993, the trial court (Kubiniec, J.) sentenced Nolley. Believing him to be a predicate (second) felony offender. Judge Kubiniec imposed two consecutive terms of seven and one-half to fifteen years. The judge stated, "Each sentence to be served consecutively. Consecutive sentences." S.15.
Prior to the conclusion of the hearing, the parties alerted the judge to the fact that Nolley was not a predicate felon but instead was a first felony offender. The judge then stated: "This setnence just imposed is set aside and revoked, and the Court resentences as follows[,]" going on to sentence Nolley to longer sentences on the two convictions, namely, seven and one-half to twenty-two and one-half. S.16-17.*fn1 Judge Kubiniec did not state whether the revised sentences were to be served concurrently or consecutively. S.17. Also on November 22, 1993, the Erie County Clerk issued the sentence and commitment papers, which stated that the sentences for the two convictions were consecutive.
According to Petitioner, his trial counsel, Robert Druar, Esq. ("Attorney Druar") stipulated to discontinuing the direct appeal on August 26, 1994, stating that there were no appealable issues. (Dkt. #10).
C. The 1997 Motion to Set Aside the Sentence
On January 8, 1997, Petitioner brought a pro se motion to set aside the sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, contending that since the trial court, in correcting its original sentence, did not specifically reiterate that the terms were to be served consecutively, the sentences necessarily must run concurrently. See Respondent's Exhibit ("Resp't Ex.") B, submitted in connection with Respondent's Answer.
By the time Petitioner filed his motion, Judge Kubiniec had passed away. Judge John V. Rogowski, after reviewing the transcript of the sentencing hearing, held that Judge Kubiniec's "intent was abundantly clear." C.P.L. § 440.20 Order at 3, Resp't Ex. B. Judge Rogowski explained that Judge Kubiniec, "[h]aving already indicated that defendant should serve consecutive prison terms, . . . merely amended the length of each sentence to reflect defendant's first-time felon sentence." Id. Judge Rogowski also rejected the claim that consecutive sentences were illegal, finding that the crimes to which Nolley pled guilty were "distinguishable by 'culpable mental state, nature and manner of use, time and place of victim'" and therefore discretionary imposition of consecutive sentences was appropriate "when all of the facts and circumstances of this case [we]re assessed." C.P.L. § 440.20 Order at 4 (quotation omitted), Resp't Ex. B. The Fourth Department denied leave to appeal on September 29, 1997.
C. Petitioner's Correspondence With Appellate Counsel Regarding Collateral Remedies
On May 31, 2002, Attorney Druar sent a letter to Petitioner, apparently in response to an inquiry from Petitioner, stating that "[r]eading the [sentencing] transcript raises at least the argument that your sentences are to run concurrently because consecutive sentencing was not specified." Letter from Attorney Druar to Petitioner dated 5/31/02, attached to Dkt. #10. Attorney Druar explained that Nolley could file a state habeas corpus petition "based upon the claim that your detention beyond seven years . . . is illegal." Id. Druar requested that Nolley send him a copy of "whatever it was [he] did file" and the resulting order. Id.
In the next correspondence from Attorney Druar that Nolley has provided the Court, Druar states that he did not think Nolley's remedy lay with an appeal of the "decision of Judge Skretny of the U.S. District Court." This Court has searched the District's electronic filing system database and could not find any such proceeding before Judge Skretny. Indeed, the only case filed by Nolley appears to be the instant proceeding.
Attorney Druar reiterated that Nolley's best remedy was a habeas corpus such as the one that Nolley had prepared or had prepared for him on November 27, 2001, and apparently submitted to Attorney Druar to review. Attorney Druar explained that the petition raised the correct issue and raised it in the correct court. He proposed that the petition, if it had not been filed, be sent to the assigned counsel program for appointment of state habeas counsel on Nolley's behalf.
However, it appears that such a petition was never filed by Nolley or by anyone on his behalf, and Nolley apparently declined to take Attorney Druar's advice. On August 27, 2002, Attorney Druar wrote to Nolley, informing him that his habeas corpus petition should have been filed with the New York State Supreme Court. He also stated that Nolley's case could be initiated as a proceeding under Article 78 of the New York Civil Practice Law and Rules ("C.P.L.R.") if Nolley wrote to the parole board and demanded an interview because he had served more than the minimum term imposed. In the alternative, the sentencing transcript could be sent to the department of corrections requesting that the sentence be recomputed. Attorney Druar closed by saying, "I don't mean to confuse but one of these steps must be taken."
The next correspondence from Attorney Druar was dated July 14, 2004, in response to a letter from Nolley enclosing some type of legal papers. Attorney Druar asked if it had been submitted to New York State Supreme Court or Federal court. He instructed Nolley to have the papers signed before a notary and returned to him for filing, if they had not already been filed in state court. It is not clear whether Nolley ever followed the directions issued by Attorney Druar.
The final correspondence from Attorney Druar, attached by Nolley to Dkt. #10, is a letter dated July 29, 2004, to the New York State Division of Parole, asking that the circumstances of Nolley's commitment be reviewed in light of the sentencing judge's silence as to whether the sentences were concurrent or consecutive. Attorney Druar noted that under the version of P.L. § 70.25(1) then in effect, the terms ...