RONALD R. BENJAMIN, ESQ., for Petitioner.
THOMAS B. LITSKY, Ass't Att'y Gen., for Respondent.
ANDREW T. BAXTER, Magistrate Judge.
Petitioner, while still incarcerated at Mid-State Correctional Facility,  filed the instant habeas corpus petition by his counsel, pursuant to 28 U.S.C. § 2254. This matter was referred for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
Petitioner challenges a judgment entered on March 24, 2007, in Broome County Court, based on his guilty plea, of Attempted Robbery in the Second Degree under N.Y. Penal Law ("Penal Law"), Sections 110 and 160.10(2)(a). Pursuant to a plea bargain, he was sentenced, as a second violent felony offender, to a determinate sentence of five years imprisonment and five years of post-release supervision. On May 10, 2007, the Appellate Division, Third Department, affirmed the judgment of conviction. People v. James, 40 A.D.3d 1206, 833 N.Y.S.2d 916 (3d Dep't 2007). Petitioner did not seek leave to appeal to the New York Court of Appeals.
On May 10, 2011, petitioner filed a counseled motion to vacate the conviction pursuant to New York Criminal Procedure Law ("N.Y.C.P.L.") § 440.10, asserting that the ineffective assistance of trial counsel caused petitioner to enter an involuntary guilty plea, despite his professed innocence. By Decision and Order, dated January 12, 2012, the County Court denied petitioner's motion. Petitioner sought leave to appeal to the Third Department, which was denied on April 20, 2012.
The petition, dated May 17, 2012, alleges that: (1) petitioner's guilty plea was not knowingly and voluntarily entered; and 2) he received ineffective assistance of trial counsel, in that, although petitioner insisted that he never intended to rob the victim, counsel did not investigate or otherwise attempt to defend petitioner, and browbeat petitioner into pleading guilty by "guarantee[ing]" that petitioner would be sentenced to no less than 15 years in prison if he proceeded to trial. (Pet. ¶¶ 20-21, 23, Dkt. No. 1). Respondent take the position that the petition "appears to be timely" and that petitioner exhausted his state-court remedies by pursuing his Section 440.10 motion. However, respondent argues that the state court's findings that plaintiff's guilty plea was knowing and voluntary, and was not induced by ineffective assistance of counsel, were not contrary to, or an unreasonable application of Supreme Court Law. Respondent further contends that petitioner's claim that his trial counsel was ineffective in his pre-plea representation was waived when petitioner entered a voluntary guilty plea. (Respond.'s Mem. of Law, Dkt. No. 7). As set forth below, this court agrees with the respondent and will recommend denial of all claims raised in the petition.
I. Relevant Facts and Procedural History
A. Petitioner's Grand Jury Testimony
During grand jury testimony in July 2005,  petitioner presented his version of the events that occurred during the evening of March 27, 2005 and that ultimately led to his indictment on multiple charges and his guilty plea to Attempted Robbery in the Second Degree. (G.J. Tr. at 33-48, State Court Record, Ex. E, Dkt. No. 8-5 at 14-29). Petitioner testified that he and his friends wanted "to get back at" the victim, Ryan James ("Ryan")-no relation to petitioner-because, inter alia, (1) Ryan had cheated petitioner and Dave Martin on a prior $20 marijuana sale, and Martin wanted his money back; (2) Ryan had been "hitting on" petitioner's girlfriend; and (3) Ryan and a group of his friends previously beat up petitioner. (G.J. Tr. at 37-40, 42). So, petitioner, his girlfriend, Dave Martin, and two other friends induced Ryan to get into a car with them, purportedly to go to a party. Instead, they drove to a secluded spot and, after two others wrapped a flannel shirt around Ryan's head, petitioner started punching Ryan in the face, five or six times. ( Id. at 40-41, 44-46). One of petitioner's friends prevented Ryan from getting out of the car and yelled at petitioner to "run" [Ryan's] pockets. Petitioner "patted [Ryan] down real quick." Ryan told petitioner that he did not have anything, but then pulled a bag of marijuana ("weed") out of his pocket and threw it to Dave Martin. ( Id. at 41-42).
Petitioner insisted that the point of the attack was to get back at Ryan "for all the stuff he did, " that the incident "never had anything to do with robbing him, " and the petitioner and his friends "didn't really demand [Ryan] to give up anything." ( Id. at 42). Petitioner testified that he did not know that "anyone else got anything from [Ryan] other than a bag of weed[.]" ( Id. at 47).
B. Petitioner's Guilty Plea
On January 30, 2006, petitioner agreed to plead guilty to Attempted Robbery in the Second Degree under the second count of the indictment, which also referenced aiding and abetting liability under Penal Law § 20.00. (Indict., Second Count, Dkt. No. 8-1 at 12). In return for his guilty plea, petitioner was promised the minimum determinate sentence, as a second violent felony offender, of five years imprisonment and five years of post-release supervision, in full satisfaction of the four-count indictment and a pending violation of probation petition. (Plea Tr. at 2-4, 7, Ex. A, Dkt. No. 8-1 at 24-26, 29). Under the plea bargain, petitioner was allowed to plead to a less serious class-D violent felony; as originally charged, Count 2 was a class-C violent felony carrying a maximum determinate sentence of between seven and 15 years for a second violent felony offender. (Indict., Second Count; Certif. of Convic., Ex. A, Dkt. No. 8-1 at 42). Penal Law §§ 70.02(1)(b), 70.04(1), (3)(b).
During the plea allocution, petitioner acknowledged that he had conferred with his attorney and had sufficient time to go over his decision to plead guilty. (Plea Tr. at 4-5, 6). Petitioner confirmed that no one had threatened or forced him, in any way, to plead guilty, and that he was pleading guilty freely and voluntarily. ( Id. at 5-6). He stated that he understood that by pleading guilty, he was forever giving up his rights to offer any defenses to the charges and the other rights attendant to a jury trial. ( Id. at 5). Petitioner also acknowledged that a ...