The opinion of the court was delivered by: John Gleeson, United States District Judge:
Jermaine Barnes brings this pro se habeas petition pursuant to 28 U.S.C. § 2254, seeking release from the Attica Correctional Facility, where he is incarcerated on state court judgments of conviction for rape in the first and second degree. Barnes contends that the sentence he is currently serving was unlawfully enhanced due to a prior conviction for sodomy in the first degree, and he seeks relief on the basis that his prior conviction was unconstitutionally obtained. For the reasons set forth below, I dismiss the petition.
On November 3, 1989, Barnes was convicted of sodomy in the first degree, N.Y. Penal Law § 130.50(1), upon a guilty plea before the Supreme Court of the New York, Queens County ("prior conviction"). He was sentenced to a term of imprisonment of one and three-quarters to five and one-quarter years. Barnes did not appeal his conviction or sentence. He was released from prison on parole on December 10, 1992, and was discharged from parole on March 10, 1994.
On December 16, 1999, Barnes was convicted after trial of rape in the first degree, N.Y. Penal Law § 130.35, and rape in the second degree, N.Y. Penal Law § 130.30, in the Supreme Court of New York, Queens County ("current convictions"). Taking into account his prior conviction, the court adjudicated Barnes a second violent felony offender, N.Y. Penal Law §§ 70.02, .04, which ratcheted up his sentencing range. The court then sentenced Barnes on the current convictions to concurrent prison terms of twenty years and three and one-half to seven years. Barnes remains incarcerated on the current convictions.
The Appellate Division, Second Department, affirmed Barnes's current convictions on appeal on December 3, 2001, People v. Barnes, 734 N.Y.S.2d 480 (2d Dep't 2001), and the New York Court of Appeals denied leave to appeal on March 6, 2002, People v. Barnes, 97 N.Y.2d 751 (2002). Barnes then sought habeas relief pursuant to 28 U.S.C. § 2254 before this Court, and I denied his petition. Barnes v. Superintendent, No. 06 Civ. 3267, 2007 WL 188707 (E.D.N.Y. Jan. 23, 2007). Barnes appealed my dismissal to the Second Circuit, which dismissed the appeal. Barnes v. Superintendent, No. 07-493 (2d Cir. Aug. 30, 2007).
Barnes then moved to vacate his prior conviction in the Supreme Court of New York, Queens County, pursuant to § 440.10 of the New York Criminal Procedure Law. He argued that he was denied effective assistance of trial counsel. The court denied the motion on November 10, 2008, and Barnes did not seek leave to appeal to the Appellate Division.
While his § 440.10 motion was pending, Barnes commenced this case by filing another petition for federal habeas corpus relief under 28 U.S.C. § 2254, this time challenging his prior conviction. However, at the time he filed the petition -- May 23, 2008 -- Barnes's sentence on that conviction had already fully expired; he had been released from prison and discharged from parole. Thus, although he was -- and remains -- incarcerated on his current convictions, Barnes was no longer "in custody" on his prior conviction and habeas relief under § 2254 was unavailable to him. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) ("We have interpreted the ['in custody' requirement of the federal habeas statutes] as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed.")Accordingly, I dismissed the petition for lack of subject matter jurisdiction. Memorandum and Order filed Aug. 1, 2008, ECF No. 5.
The Second Circuit issued a certificate of appealability on November 20, 2008, and vacated my dismissal of the petition. The court remanded to give Barnes the opportunity to file an amended petition that challenged not the prior conviction directly but the unlawful enhancement of his current sentence due to the prior conviction. Barnes v. Superintendent, No. 08-4053 (2d Cir. Nov. 20, 2008).
Barnes thereafter filed this amended petition. He argues that his prior conviction is constitutionally defective because his guilty plea was not knowing or voluntary, he was denied his confrontation rights, and his trial counsel was ineffective for failing to notice an appeal and request appointed counsel for an appeal. Pet. at 6-9, 13. Because the sentence for his current convictions was enhanced in light of his prior conviction -- he was sentenced as a second violent felony offender -- Barnes argues that he is entitled to habeas relief with respect to his current convictions, on which he remains "in custody."
The government now moves to dismiss the amended petition.
Because Barnes's prior conviction has fully expired, this Court lacks jurisdiction to entertain a habeas petition challenging that conviction. That his prior conviction triggered an enhanced sentence for his current convictions does not render Barnes "in custody" on his prior conviction and thus not affect the jurisdictional analysis. Lackawanna Cnty. Dist. Att'y v. Coss, 532 U.S. 394, 402 (2001). However, Barnes is currently incarcerated pursuant to his current convictions, and these convictions may be properly challenged in a habeas proceeding.*fn1 The Court has jurisdiction to hear an attack on Barnes's current convictions on the basis that he received an enhanced sentence for these convictions due to his unlawful prior conviction. In other words, Barnes may challenge his prior conviction, but he may only do so indirectly, through a challenge to his current convictions. This is precisely what Barnes does in his amended petition.
Although I have jurisdiction to entertain the indirect challenge Barnes here asserts to his prior conviction, the Supreme Court has made clear that relief is available for such a claim only in very limited circumstances. "[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid." Id. at 403. Such is the current status of Barnes's prior conviction, as it is no longer subject to direct or collateral attack. The only certain exception*fn2 to this rule of conclusive validity obtains when a prior conviction is unconstitutional due to "a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright." Id. at 404 (citing 372 U.S. 335 (1963)). Because the failure to appoint counsel for an indigent defendant is a "'unique ...