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Contant v. Sabol

United States District Court, S.D. New York

December 6, 2013

ISAN CONTANT, Petitioner,
v.
WARDEN MARY SABOL, WARDEN CRAIG A. LOWE, and THE STATE OF NEW YORK, Respondents

Order Filed: April 4, 2013

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Isan Contant, Petitioner: Michael Kennedy Burke, Burke, Miele & Golden, LLP, Suffern, NY.

For State of New York, Warden Craig A. Lowe, Respondents: Carrie Anne Ciganek, LEAD ATTORNEY, District Attorney of Rockland County, New City, NY.

OPINION

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ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

I. Background

After entering a guilty plea, Petitioner was convicted in state court on October 3, 2007, of one count of criminal possession of a controlled substance in the third degree. ( See Report & Recommendation (" R& R" ) (Dkt. No. 46) at 1.) Petitioner was thereafter sentenced to imprisonment for a term of one year and to post-release supervision for two years. ( See id .) Following Petitioner's conviction, the federal government commenced deportation proceedings against Petitioner pursuant to 8 U.S.C. § 1227(a)(2)(B)(i),

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( see id. at 6), which makes deportable " [a]ny alien who at any time after admission [to the United States] has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). On September 10, 2010, Petitioner received a final order of removal, and on February 8, 2012, Petitioner was deported to Trinidad and Tobago. ( See R& R at 6.)

Petitioner filed the instant Petition on April 19, 2012, seeking relief under 28 U.S.C. § 2254.[1] ( See Dkt. No. 31. (" Pet." ).) The Petition was referred to Magistrate Judge Davison, who issued a Report and Recommendation (" R& R" ) recommending that the Petition be denied. ( See R& R at 37.) Petitioner filed timely objections to the R& R, wherein he raises four challenges. ( See Pet'r's Objections to R& R (" Objs." ) (Dkt. No. 47).) After reviewing the R& R and Petitioner's objections, the Court agrees with Magistrate Judge Davison that the Petition should be denied, and it adopts his R& R to the extent it is consistent with this Opinion for the reasons given below.

II. Discussion

The R& R thoroughly discussed the procedural and factual history of the Petition. ( See R& R at 2-17.) The Court thus finds no need to revisit that discussion here, but will instead refer to the R& R's account where necessary. Accordingly, the Court will proceed directly to the merits of Petitioner's objections.

A. Legal Standard

1. Review of a Magistrate Judge's Report and Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and recommendation. The objections must be " specific" and " written," Fed.R.Civ.P. 72(b)(2), and must be made " [w]ithin 14 days after being served with a copy of the recommended disposition," id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)-(F), see Fed.R.Civ.P. 6(d), for a total of seventeen days, see Fed.R.Civ.P. 6(a)(2).

Where a party submits timely objections to a report and recommendation, as Petitioner has done here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The district court " may adopt those portions of the . . . report [and recommendation] to which 'no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)).

2. Habeas Corpus

A petition for habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), which provides that a habeas petition " shall not be granted with respect to

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any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(1). In this context, " it is the habeas applicant's burden to show that the state court applied [federal law] to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). " [A]n unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (" The question under AEDP A is not whether a federal court believes the state court's determination was incorrect but whether the determination was unreasonable--a substantially higher threshold." ). Instead," [§ ] 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). Consequently, a federal court must deny a habeas petition in some circumstances even if the court would have reached a conclusion different from the state court's, because " even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id.; see also Cullen v. Pinholster, 131 S.Ct. 1388, 1411, 179 L.Ed.2d 557 (2011) (" Even if the [federal] Court of Appeals might have reached a different conclusion as an initial matter, it was not an unreasonable application of our precedent for the California Supreme Court to conclude that [petitioner] did not establish prejudice." ); Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d Cir. 2012) (" Although we might not have decided the issue in the way that the [New York State] Appellate Division did--and indeed we are troubled by the outcome we are constrained to reach --we . . . . must defer to the determination made by the state court . . . . " (emphasis added) (citation omitted)), cert. denied, 133 S.Ct. 2338, 185 L.Ed.2d 1070 (2013).

3. Ineffective Assistance of Counsel

Petitioner's sole claim for habeas relief is that he was denied the effective assistance of counsel guaranteed to him by the Sixth Amendment, as incorporated against the states through the Fourteenth Amendment. ( See Pet. at 4.) The Court thus analyzes Petitioner's specific claims of ineffective assistance under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Chaidez v. United States, 133 S.Ct. 1103, 1107-08, 185 L.Ed.2d 149 (2013) (noting that Strickland " provides sufficient guidance for resolving virtually all claims of ineffective assistance, even though their particular circumstances will differ" (internal quotation marks omitted)). In Strickland, the Supreme Court held that a defendant claiming ineffective assistance of counsel must show (1) " that counsel's representation fell below an objective standard of reasonableness," and (2) " that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 688, 694.

Under the first prong, the Court " must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance." Harrington, 131 S.Ct. at 787 (internal quotation marks omitted). " To overcome that presumption, a defendant must show that

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counsel failed to act 'reasonabl[y] considering all the circumstances." ' Cullen, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 688). " In applying and defining this standard substantial deference must be accorded to counsel's judgment." Premo v. Moore, 131 S.Ct. 733, 742, 178 L.Ed.2d 649 (2011); see also Strickland, 466 U.S. at 689 (" Judicial scrutiny of counsel's performance must be highly deferential." ).

Under the second prong, because " [a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial," Petitioner must " affirmatively prove prejudice." Strickland, 466 U.S. at 693. " In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the [petitioner] will have to show 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." ' Missouri v. Frye, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). And he must specifically make this allegation in his petition. Hill, 474 U.S. at 60 (finding no prejudice where " [p]etitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial" ). " Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

Where, as here, a petitioner seeks habeas review of an ineffective-assistance-of-counsel claim under the test announced in Strickland, review is " doubly deferential." Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009); see also Harrington, 131 S.Ct. at 788 (" The standards created by Strickland and [AEDPA] are both highly deferential, and when the two apply in tandem, review is doubly so." (internal quotation marks and citations omitted)). Petitioner " must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance . . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell, 535 U.S. at 698-99. Thus, " [w]hen [AEDPA] applies, the question is not whether counsel's actions were reasonable," but instead " whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S.Ct. at 788; see also Gueits v. Kirkpatrick, 612 F.3d 118, 125 (2d Cir. 2010) (" [O]ur review is not focused on the proper application of New York law. Our task is limited to assessing whether the Appellate Division unreasonably applied Strickland . . ., even assuming that the state courts erroneously applied state law." ); Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (when reviewing an ineffective-assistance claim in the context of a habeas petition, the court asks " only whether the [state court's] rejection of [the] claim amounted to an unreasonable application of the Strickland standard" ).

B. Analysis

Petitioner specifically challenges a state-court decision denying his § 440.10 Motion to vacate his conviction, wherein the state court held that Petitioner failed to satisfy both the deficient performance and prejudice

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prongs under Strickland [2] (R& R at 34.) In his R& R, Magistrate Judge Davison recommended denial of the Petition on the prejudice prong alone. ( See id. at 34-35.) Specifically, he found that " Petitioner likely 'would have been subject to deportation proceedings even had his counsel informed him of the deportation consequences of pleading guilty,' and, therefore, Petitioner has not established prejudice because he 'is unable to show that the outcome in his case would have resulted in anything but his being deported." ' ( Id. at 37 (quoting Francis v. United States, No. 12-CV-1362, 2013 WL 673868, at *6-7 (S.D.N.Y. Feb. 25, 2013).) He also recommended that the Court decline to issue a Certificate of Appealability. ( Id. at 37-38.) Petitioner objects to both recommendations.

1. Ineffective-Assistance Claim

In the context of the merits of his ineffective-assistance claim, Petitioner objects to the R& R on three grounds. First, he argues that the R& R improperly evaluated the weight of the evidence against him and the fact that he entered a guilty plea in finding that Petitioner would not have proceeded to trial. (Objs. at 3.) Second, he objects to the R& R's finding that Petitioner received a benefit for pleading guilty. ( Id. at 2.) Third, he argues that the R& R " disregard[s] the specific arguments concerning Petitioner's ties to the United States." ( Id. at 2-3 (some alterations omitted).)

At the outset, the Court notes that Petitioner objects, in large part, to the R& R's overall finding that Petitioner did not demonstrate that it would have been rational for him to reject the plea. ( See R& R at 35.) But " rational rejection" is only one of at least two requirements that Petitioner must satisfy to demonstrate prejudice. Indeed, under Hill, Petitioner still must actually " allege in his habeas petition that," if counsel had advised him that deportation would be mandatory, " he would have pleaded not guilty and insisted on going to trial." Hill, 474 U.S. at 60 (emphasis added). After a careful and thorough review of the Petition, Petitioner's Reply Memorandum, and his Objections--which, the Court notes, were all drafted by appointed counsel--the Court can find no such allegation. And it especially cannot find any instance where Petitioner alleges " special circumstances that might support the conclusion that he placed particular emphasis" on the deportation issue " in deciding whether or not to plead guilty." Id. Instead, the Petition contains the argument that " it would have been rational to reject the plea had the Petitioner been aware of the consequences--mandatory removal." (Pet. at 9.) And it notes that " [d]eportation can result in loss . . . of all that makes life worth living." ( Id. (internal quotation marks omitted) (second alteration in original).) But even if Petitioner were correct that it would have been rational for him to reject the plea, he never specifically alleges that he would have, in fact, rejected the plea had he known that deportation was mandatory. Thus, where Petitioner fails to make even a conclusory allegation that he would have gone to trial, he has not come close to meeting his burden affirmatively to demonstrate prejudice.

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See Boakye v. United States, No. 09-CV-8217, 2010 WL 1645055, at *6 (S.D.N.Y. Apr. 22, 2010) (" The conclusory claim in Petitioner's brief that he would have gone to trial but for counsel's alleged ineffectiveness, standing alone, does not establish prejudice under Strickland ." ); Scott v. Superintendent, Mid-Orange Carr. Facility, No. 03-CV-6383, 2006 WL 3095760, at *9 (E.D.N.Y. Oct. 31, 2006) (" [C]onclusory allegations that a defendant would have insisted on proceeding to trial are generally insufficient to establish actual prejudice under Strickland ." ).

At best, Petitioner's submissions can be read to imply (but not allege) that deportation was such an extreme consequence that, had Petitioner known that it was a mandatory and inevitable consequence of his guilty plea, he would have chosen to go to trial and risk at least the possibility of an acquittal. ( See Objs. at 2 (" The possibility remains that Petitioner could have been successful at trial." ).) However, when evaluating whether a petitioner would have accepted a plea had his counsel not been deficient, the Second Circuit has recognized that " [its] precedent requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); see also Francis, 2013 WL 673868, at *4 (" In the immigration context, a petitioner must affirmatively prove prejudice by putting forth credible evidence that he would actually have insisted on going to trial had he known of the precise immigration consequences of his conviction." (internal quotation marks omitted)); Zhang v. United States, 543 F.Supp.2d 175, 185 (E.D.N.Y. 2008) (" Even if [the petitioner] had been informed that a conviction for an aggravated felony would result in mandatory deportation, there is no evidence that he would have chosen to proceed to trial." ); United States v. Guidice, No. 02-CR-729, 2004 WL 1152539, at *6 (S.D.N.Y. May 21, 2004) (finding no prejudice where petitioner " ha[d] not introduced any evidence upon which a finding of prejudice could be based," including " any affidavit representing that he would have chosen to proceed to trial if he had been informed by [counsel]" of an error). And " [t]he fact of certain removal . . . does not, without more, constitute 'objective evidence' of what [Petitioner] was reasonably likely to do had he received accurate advice." Gomez v. United States, No. 10-CV-1886, 2013 WL 66080, at *6 (E.D.N.Y. Jan. 4, 2013) (quoting Pham, 317 F.3d at 182).

In Gomez v. United States, as here, the petitioner faced mandatory removal under 8 U.S.C. § 1227(a)(2)(B)(i), and he alleged that his counsel misinformed him of the deportation consequences of his guilty plea. See [WL] at *3. However, the petitioner also conceded that he " was informed . . . that deportation was at least a possible consequence of his plea, and he nonetheless accepted the government's cooperation agreement." [WL] at *6. Moreover, the court found that there was " overwhelming evidence supporting [the] conviction," and that, " [h]ad [petitioner] proceeded to trial, . . . [he] risked a substantially harsher sentence" than the one he received as a result of his plea. [WL] at *7. The court thus denied the petition because petitioner " offer[ed] no evidence that his prospects had he proceeded to trial offered a realistic possibility of a better outcome such that he would have rationally chosen to take the risk of a harsher sentence rather than accept the plea." Id.

Similarly, in Francis v. United States, the petitioner faced mandatory removal under 8 U.S.C. § 1227(a)(2)(A)(iii), a provision that, like the provision here, provides for mandatory removal upon conviction of certain crimes. 2013 WL 673868, at *1. But, unlike here, petitioner " ha[d] presented

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more than conclusory allegations" that he would have insisted on going to trial, including evidence of strong ties to the United States and weak ties to his country of origin, evidence that his guilty plea did not guarantee him a lesser sentence, and evidence that his conviction at trial was not predetermined because he had a strong defense. [WL] at *4. Nevertheless, the court denied his petition, finding that " the evidence against [petitioner] was strong," and that " [p]etitioner benefited from the plea" despite the lack of a promise of a lesser sentence. [WL] at *4-5. Moreover, in response to the petitioner's arguments concerning his strong ties to the United States, the court found that " even if a petitioner can demonstrate extraordinary circumstances that would make a seemingly irrational choice to go to trial appear more reasonable, that petitioner still must demonstrate that going to trial could have resulted in a different outcome." [WL] at *6. The court thus ultimately denied the petition because the petitioner presented no evidence showing " that he could have succeeded in avoiding conviction following a trial or that he could have avoided deportation." Id. (internal quotation marks and citations omitted).

The R& R recommended denial of the Petition on grounds similar to those articulated in Gomez and Francis . First, it concluded that " [t]he strength of th[e] evidence . . . weighs against a finding of prejudice," specifically finding that

the prosecution's case included evidence that a clear plastic bag containing a white substance was recovered from Petitioner's pants following a police search, as well as a laboratory report confirming that the recovered substance indeed was cocaine and that it weighed in excess of one half-ounce, as required for conviction under New York Penal Law § 220.16(12).

(R& R at 35.) Second, it found that Petitioner benefitted from the guilty plea. Not only did Petitioner " receive[] a recommendation from the prosecution of only four years imprisonment instead of a possible maximum term of nine years," Petitioner also ultimately received " the one-year minimum sentence[,] which was substantially below the prosecutor's recommendation." ( Id. at 36.) Third, it found that the Petition " offered no specific arguments regarding [Petitioner's] ties to the United States," such as familial ties, that would otherwise inform the analysis of whether he would have rejected the plea. ( Id. at 36-37.) Based on these findings, the R& R found that " Petitioner has not established prejudice because he 'is unable to show that the outcome in his case would have resulted in anything but his being deported." ' ( Id. at 37 (quoting Francis, 2013 WL 673868, at *6-7).)

Petitioner's objections challenge each of the R& R's specific findings supporting its general conclusion that Petitioner failed to demonstrate prejudice. First, Petitioner argues that the Court cannot consider the " strength of the evidence" against him, because his " position is . . . that he had no burden to present any evidence of his innocence or on his behalf, and this Court does not know of what potential testimony the Petitioner could have provided at trial, since he entered a guilty plea." (Objs. at 3.) And he argues that the R& R inappropriately considered Petitioner's guilty plea in making this determination. ( See id. at 3; R& R at 35 (" The strength of this evidence, as well as Petitioner's having acknowledged his guilt, weighs against a finding of prejudice." ).) Petitioner may be correct that he could have been acquitted at trial. And he is certainly correct that " this Court does not know of what potential testimony the Petitioner could have provided at trial." (Objs. at 3.) But Petitioner's objections miss the point, because

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it is his burden under Strickland " affirmatively [to] prove prejudice." Strickland, 466 U.S. at 693. Thus, in the face of what the R& R found is strong evidence indicating that Petitioner would have been convicted at trial, Petitioner's failure to point to any evidence that he would have succeeded at trial is fatal to his ability to demonstrate prejudice. Moreover, the R& R's reference to Petitioner's " acknowledg[ment] [of] his guilt" merely alludes to a possible explanation for this lack of evidence, as Petitioner himself admitted under oath that he was guilty of the crime, and " he does not now assert that he is in fact innocent of these crimes." See Francis, 2013 WL 673868, at *4. The Court has not determined, based on the guilty plea, that Petitioner could not offer evidence in his defense. It has merely determined, instead, that Petitioner did not offer such evidence. And it further observes that Petitioner's implicit acknowledgment of his guilt by failing to argue his innocence at this stage despite his guilty plea may provide at least one reason. Thus, given the strength of the evidence against him, and given his failure even now to assert his innocence or to identify any way in which he could have succeeded at trial, Petitioner " cannot demonstrate that the case against him could have resulted in anything but eventual deportation, regardless of his decision to plead guilty or to proceed to trial." Id.

Second, in response to the R& R's finding that Petitioner benefitted from the plea, Petitioner objects that " the record demonstrate[s] that [he] was never promised--or guaranteed--to receive any particular benefit from pleading guilty, either by the trial court or the prosecution," and thus that he " entered the guilty plea without the promise of leniency." (Objs. at 2.) When confronted with a similar argument, the courts in Gomez and Francis rejected the notion that a guarantee of leniency is required when a petitioner actually benefitted from leniency as a result of his plea. See Francis, 2013 WL 673868, at *5 (finding that guilty plea resulted in actual sentencing benefit from lower offense level used in Sentencing Guidelines calculation); Gomez, 2013 WL 66080, at *7 (finding that guilty plea resulted in actual sentencing benefit where petitioner received time served after spending three years in jail, as opposed to " risk[ing] a substantially harsher sentence . . . of ten years to life" by proceeding to trial). Here, Petitioner benefitted from the plea, first, when he received a recommendation for a lower sentence from the prosecutor, and, second, when he in fact received a sentence from the court that was even lower than that recommendation--and much lower than the statutory maximum. ( See R& R at 36.) In line with Francis and Gomez, the Court finds that the Petitioner has offered no evidence demonstrating why " he would have foregone the substantial benefit resulting from his plea and risked a harsher sentence at trial." Francis, 2013 WL 673868, at *5 (internal quotation marks omitted).

Third, in response to the R& R's consideration of Petitioner's ties to the United States, Petitioner argues that " the record indicates that the Petitioner does have sufficient ties to the United States," specifically " a wife . . . who is a United States citizen." (Objs. at 2-3.) In making this argument, Petitioner implies--but, again, does not offer evidence or even specifically allege--that this tie would have been strong enough to cause him to risk going to trial to avoid deportation. Indeed, Petitioner alleges only that he is married to a United States citizen--a " tie" to the United States that he describes as " sufficient." ( Id.) However, he does not make the necessary allegation that his marriage would have influenced his decision to enter a

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guilty plea. For example, Petitioner does not allege that he had a strong marriage, that he had fathered children through the marriage, that his wife was in any way dependent on him for support, or that the marriage in some other way would have motivated him to reject the plea based on the mandatory-deportation consequence.[3] And in the context of this argument, " [P]etitioner still must demonstrate that going to trial could have resulted in a different outcome." Francis, 2013 WL 673868, at *6. Otherwise, Petitioner fails to demonstrate prejudice under Strickland, because he cannot prove " that he could have avoided deportation." Id. Thus, given Petitioner's failure to challenge the R& R's finding--which the Court now adopts--that the evidence against Petitioner was strong and that Petitioner likely would have been convicted at trial even if he had rejected his guilty plea, Petitioner fails to demonstrate how his strong ties to the United States would have affected his decision to enter the guilty plea because those ties would have been severed even had Petitioner gone to trial.

In sum, the Court denies the Petition because Petitioner failed to make even a conclusory allegation that he actually would have rejected the guilty plea and gone to trial had he been informed of the deportation consequences of the plea. But even construing the Petition to have made such an allegation, the Court still denies it because Petitioner has failed to provide objective evidence that going to trial would not have resulted in deportation. And, in the context of AEDPA, even if the Court agreed with Petitioner's argument, it cannot say that the state court's judgment rejecting this argument represents an " extreme malfunction[] in the state criminal justice system[]," or that " there is [no] reasonable argument that counsel satisfied Strickland 's deferential standard." Harrington, 131 S.Ct. at 786, 788 (internal quotation marks omitted).

2. Certificate of Appealability

Petitioner also objects to the R& R's recommendation that the Court decline to issue a Certificate of Appealability (" COA" ). ( See Objs. at 4.) Under AEDPA, a COA " may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires a showing " that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner argues that, here, " [a]ny reasonable jurist would clearly find that failing to be advised of mandatory consequences of pleading guilty to a crime deprives a defendant of a constitutional right." (Objs. at 4.) But where Petitioner must affirmatively demonstrate prejudice by alleging that he would have rejected the plea had he been advised of the deportation consequences, and where Petitioner has decidedly failed to do so, no reasonable jurist would agree that Petitioner has successfully alleged a constitutional claim. In other words, the Court does not find that counsel's performance was not deficient. And it does not find that Petitioner actually suffered no prejudice as a result of allegedly deficient performance. Instead, it finds only

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that Petitioner has failed to meet his burden affirmatively to demonstrate such prejudice because he has offered no evidence and he has failed to make even a conclusory allegation to that effect. The Court thus finds that no reasonable jurist would agree with Petitioner that, having failed to make the necessary evidence-backed allegations, he has nevertheless demonstrated that he was denied a constitutional right. Cf Gomez, 2013 WL 66080, at *8 (declining to issue a COA for similar reasons). Accordingly, the Court agrees with the R& R that no COA should issue.

III. Conclusion

Based on the foregoing analysis, the Court denies the Petition because Petitioner has failed to demonstrate that counsel's alleged ineffectiveness resulted in prejudice. Accordingly, it is

ORDERED that the Report and Recommendation dated April 4, 2013, is ADOPTED to the extent it is consistent with this Opinion. It is further

ORDERED that Petitioner's writ of habeas corpus is DISMISSED with prejudice. It is further

ORDERED that a Certificate of Appealability shall not be issued, and that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this judgment on the merits would not be taken in good faith.

The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent and to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION TO: THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Paul E. Davison, J.

I. INTRODUCTION

Petitioner Isan Contant, through his counsel,[2] seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on October 3, 2007, following entry of his guilty plea, in Rockland County Court (Kelly, J.) of one count of criminal possession of a controlled substance in the third degree. For this crime, Petitioner was sentenced to a term of one year of imprisonment plus two years of post-release supervision, as well as a $270.00 penalty assessment.

This petition is before me pursuant to an order of reference. See Dkt. Nos. 10, 32. For the reasons set forth below, I respectfully recommend that the petition be DENIED.

II. BACKGROUND[3]

A. The Crime

On April 9, 2006, Petitioner was a passenger in a vehicle that was observed to be

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driving erratically on Interstate 87 by two New York state troopers in the Town of Clarkstown, Rockland County, New York. After stopping the vehicle, the troopers apparently smelled marihuana, and the driver of the vehicle admitted that he had smoked marihuana and did not possess a driver's license. After failing coordination tests, the driver was arrested. The troopers searched the vehicle and asked Petitioner and a second passenger to step outside the vehicle. The troopers thereafter observed a bulge in Petitioner's groin area and, upon searching Petitioner, the troopers recovered from his pants a clear plastic bag containing a white substance that was later confirmed by laboratory testing to be cocaine, as well as an aluminum foil packet of marihuana.

B. The Indictment and Pre-Trial Proceedings

The Rockland County Grand Jury returned an indictment charging Petitioner with one count of criminal possession of a controlled substance in the third degree, in violation of New York Penal Law § 220.16(12),[4] and unlawful possession of marihuana, in violation of New York Penal Law § 221.05.[5]

Petitioner moved the trial court to suppress the evidence that the police had recovered from his pants during what he claimed had been an unlawful search, but the trial court denied this motion.

C. The Guilty Plea

Before Petitioner's trial commenced with jury selection on August 7, 2007, Petitioner's trial counsel informed the trial court that Petitioner wished to enter a guilty plea to both charges in the indictment, and Petitioner agreed that this was his intention. See Ciganek Aff., Ex. A (Aug. 7, 2007 Plea Tr.) at 2-3. The trial court next asked Petitioner whether he was an American citizen, Petitioner responded " [n]o," and Petitioner's counsel confirmed that Petitioner was from " Trinidad." Id. at 3. The trial court thereafter explained that,

[s]ince you are not an American citizen, as a result of entering a plea of guilty, you may be subject to deportation, exclusion, or removal, and if you have a petition for naturalization pending, it can be denied. That's one of the direct consequences of entering a plea of guilty when you are not an American citizen. . . . Prior to the termination of your sentence, you could be paroled or released to the jurisdiction of the immigration authorities for deportation, as well. That is something that can also happen prior to your completing whatever sentence you receive.

Id. at 4-5. Petitioner confirmed that he understood, that he had discussed this issue with his counsel, and that, " [n]otwithstanding" these potential immigration consequences, he still wished to plead guilty.[6]

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Id. Petitioner also told the court that he was " very satisfied" with the services that had been provided by his trial counsel. Id. at 5. The prosecution recommended " four years' incarceration," though the trial court noted that this was an " open plea." that the court was " not making any commitment on sentence," and that Petitioner " could receive anywhere from one to nine years on a determinate sentence," as well as " a period of post-release supervision, which is mandated under the law." Id. at 6-7. Petitioner confirmed that he understood the potential sentence that he faced. Id. at 7.

Petitioner then was placed under oath. Id. The trial court thereafter informed Petitioner that, " when you come into the Court and plead guilty, you give up a number of rights that you have." Id. at 8. The court then reviewed Petitioner's right to remain silent, right to a jury or non-jury trial, right to testify on his own behalf and to call witnesses to testify on his behalf, and right to confront and cross-examine the witnesses against him. See id. at 8-9. Petitioner confirmed that he understood that, by entering a guilty plea, he was " waiving or giving up the rights that [he] otherwise would have." Id. at 9. Petitioner thereafter admitted that he knew it was illegal to possess cocaine and that the aggregate weight of the cocaine in his possession on April 9, 2006 was one-half ounce or more. See id. at 9-10. The prosecution then read into the record the laboratory report that previously had been provided to defense counsel. See id. at 10. This report confirmed that the bag that the troopers had recovered from Plaintiff's pants contained more than half an ounce of cocaine. See id. at 10-11. The prosecution confirmed that Petitioner admitted that the troopers had recovered the bag of cocaine from his pants on April 9, 2006, that Petitioner had no reason to dispute the laboratory's conclusions regarding the nature or weight of the substance that was in the bag, and that Petitioner knew it was illegal to possess cocaine. See id. at 13-14.

The prosecution moved to dismiss the marihuana charge because defense counsel apparently had noted that the marihuana that had been tested by the laboratory was not the marihuana that had been recovered from Petitioner's pants, but rather was a " [p]artially-consumed marijuana cigarette" that had been found in the vehicle in which Petitioner had been a passenger. Id. at 11-12. The court granted the prosecution's motion and vacated Petitioner's plea of guilty on that charge. Id. at 12.

The prosecution thereafter stated that it had provided an appellate waiver agreement to Petitioner's trial counsel. See id. at 14. The trial court explained to Petitioner that, by " sign[ing] this Waiver of Right to Appeal," Petitioner had provided a " written acknowledgment . . . that [he is] knowingly and voluntarily waiving [his] appellate rights," which meant that Petitioner was " giving up the right to appeal." Id. at 15. Petitioner confirmed that he understood and had discussed the waiver of his appellate rights with his counsel. See id. at 15-16.

Following Petitioner's allocution and recommendation by the prosecution, the court accepted Petitioner's guilty plea. See id. at 16.

D. The Sentencing

On October 3, 2007, Petitioner appeared for sentencing. See Ciganek Aff., Ex. B (Oct. 3, 2007 Sentencing Tr.). During this proceeding, Petitioner stated that he took " full responsibility for what happened in terms of me possessing the drugs" and that he did not dispute the amount of cocaine that was in his possession as set forth in the laboratory report. Id. at 9. In light of some discrepancies between Petitioner's

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statements in court and the summary set forth in his pre-sentence report, the court noted that Petitioner " admits possession of all the drugs at sentencing through an allocution" which was " consistent with his position [o]f full responsibility." Id. The court then sentenced Petitioner to the minimum sentence of one year of imprisonment and also imposed two years of post-release supervision plus a penalty assessment of $270.00. Id. at 12-13. Petitioner thereafter indicated that he wanted to file a notice of appeal. Id. at 15. The court noted that Petitioner had waived his appellate rights when he entered his plea of guilty and asked whether Petitioner wished to withdraw his plea. See id. Petitioner stated that he did not " want to take [his] plea back." Id.

E. The Immigration Proceedings

Following Petitioner's conviction, the federal government commenced deportation proceedings against him pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), which provides that " [a]ny alien who at any time after admission [to the United States] has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . is deportable." 8 U.S.C. § 1227(a)(2)(B)(i). Petitioner received a final order of removal from the United States on September 10, 2010. On February 8, 2012, Petitioner was deported to Trinidad and Tobago by Immigration and Customs Enforcement.

F. The Direct Appeal

On or about July 31, 2008, Petitioner, through counsel, appealed his conviction to the New York State Appellate Division, Second Department, and raised the following claim:

(1) Petitioner's sentence was harsh and excessive and should be reduced or modified.

See Ciganek Aff., Ex. C. Respondent opposed. See Ciganek Aff., Ex. D. After receiving leave to do so from the Second Department, on or about February 22, 2009, Petitioner submitted a supplemental pro se brief in support of his direct appeal and added the following claims:

(2) the appellate waiver that Petitioner signed when he entered his guilty plea was invalid because there was no formal plea agreement, see Ciganek Aff., Ex. E at 5-8;

(3) the trial court erred in denying Petitioner's motion to suppress because the testimony supplied by the prosecution witness at the suppression hearing was not credible, see id. at 9-14;

(4) the search in which the troopers engaged exceeded the scope permitted by the Fourth Amendment, see id. at 15-22;

(5) the seizure of the plastic bag from inside Petitioner's pants violated Petitioner's Fourth Amendment rights, see id. at 23-24.

On or about December 16, 2009, after receiving further leave from the Second Department, Petitioner submitted another supplemental pro se brief in which he claimed that:

(6) the trial court misrepresented the immigration consequences of Petitioner's guilty plea and thereby rendered his plea involuntary and unintelligent, see Ciganek Aff., Ex. F at 3-8;

(7) trial counsel's failure to object to the trial court's misrepresentation of the immigration consequences of Petitioner's guilty plea constituted ineffective assistance of counsel, see id. at 8-10.

Respondent submitted a second opposition brief on or about June 15, 2010, addressing

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each of Petitioner's new direct appeal claims. See Ciganek Aff., Ex. G. With regard to Petitioner's ineffective assistance of counsel claim, Respondent argued that (1) " the record is clear that [Petitioner] was advised [by the trial court] that his plea carried potential immigration consequences," (2) Petitioner failed to preserve this claim by " fail[ing] to move to withdraw the plea or vacate the judgment of conviction," (3) Petitioner " chose[] an improper vehicle with which to press this claim," since " [c]laims of ineffective assistance must ordinarily be resolved by way of a motion pursuant to [New York Criminal Procedure Law] § (1)(a), through which a record may be made of the considerations underlying counsel's tactics and actions," and (4) Petitioner's claim of ineffective assistance fails on the merits. Id. at 22-27.

On October 26, 2010, the Second Department affirmed Petitioner's conviction. See Ciganek Aff., Ex. V.[7] Although the Second Department agreed with Petitioner that the appellate waiver was invalid in the absence of any " promise, plea agreement, reduced charge, or any other bargain or consideration," id. at 1, and therefore considered each of Petitioner's direct appeal claims, it denied each of these claims on the merits. Id. at 2-3. With regard to Petitioner's ineffective assistance claim, the Second Department noted that Petitioner " argues that his plea of guilty made deportation a virtual certainty, that the County Court should have informed him of that likely outcome, that its misrepresentation of the likelihood of deportation constituted reversible error, and that his attorney's failure to object to the . . . alleged misrepresentation constituted ineffective assistance of counsel." Id. at 2. The Second Department reject[ed] these contentions" and concluded that the trial court's statements regarding the potential immigration consequences of pleading guilty served to put Petitioner on notice of these consequences and thereby give Petitioner an opportunity to pursue any potential concerns with his attorney or an immigration expert. Id. at 2-3 (citing, among other authorities, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)). The Second Department further found that, " [i]nsofar as we are able to review the defendant's remaining claims of ineffective assistance of counsel, [Petitioner's] counsel provided meaningful representation." Id. at 3. On or about November 14, 2010, Petitioner moved for reargument before the Second Department and also moved for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. See id., Ex. U.

On or about November 16, 2010, Petitioner's appellate counsel submitted a letter requesting leave to appeal to the New York Court of Appeals, enclosing copies of the Second Department's decision, as well as copies of the various briefs that had been submitted on direct appeal. See id., Ex. V. On or about November 17, 2010, Petitioner submitted a letter to the Court of Appeals seeking to withdraw the application that had been submitted by his appellate counsel. See id., Ex. W. On or about December 2, 2010, Petitioner, proceeding pro se, submitted a request for leave to appeal to the Court of Appeals. See id., Ex. X. In this request, Petitioner

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explicitly argued that his " ineffective assistance of counsel claim should have been granted and the conviction overturned" because Petitioner's " trial counsel was ineffective for failing to object when incorrect immigration advice was given by the trial court at the plea hearing." Id. at 2. On March 28, 2011, the Court of Appeals denied Petitioner's request for leave to appeal. See Ciganek Aff., Ex. DD.

The Second Department denied Petitioner's motion for reargument on January 10, 2011, and Petitioner requested leave to appeal this decision on February 9, 2011. See Ciganek Aff., Ex. CC. The Court of Appeals denied this request on March 29, 2011. See id., Ex. EE. The Second Department, however, granted Petitioner's application for a writ of error coram nobis on May 10, 2011 on the ground that Petitioner's appellate counsel had been " ineffective in failing to raise the issue that [Petitioner' s] waiver of his right to appeal was not valid" and " in failing to evaluate whether there were any nonfrivolous issues which could be raised on appeal." Id., Ex. FF at 2. The court vacated its October 26, 2010 decision on this basis, assigned Petitioner new appellate counsel, and ordered that " assigned counsel shall serve and file a brief expeditiously." Id. at 1-2.

On or about August 30, 2011, Petitioner's assigned counsel submitted a direct appeal brief on Petitioner's behalf claiming only that the trial court erred in denying Petitioner's motion to suppress because the troopers' search and seizure had violated Petitioner's Fourth Amendment rights.[8] See Ciganek Aff., Ex. GG at 11-17. Petitioner's ineffective assistance of counsel claim was not raised. See id. The Second Department concluded that the trial court had " properly denied that branch of [Petitioner's] omnibus motion which was to suppress physical evidence" and affirmed Petitioner's conviction on December 13, 2011. People v. Contant, 90 A.D.3d 779, 935 N.Y.S.2d 35, 36 (App.Div. 2011). Petitioner, proceeding pro se, requested leave to appeal on or about January 12, 2012 and specifically asked the Court of Appeals to " review the search and seizure issues raised in his appellate brief." [9] See Ciganek Aff., Ex. JJ. On March 30, 2012, the Court of Appeals denied Petitioner's request for leave to appeal the Second Department's December 13, 2011 decision. See id., Ex. LL. Petitioner's conviction became final on June 28, 2012.[10]

G. The State Court Collateral Proceedings

While his initial direct appeal was pending, on or about August 25, 2009, Petitioner,

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proceeding pro se, moved the trial court to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10[11] on the ground that it was obtained in violation of Petitioner's Sixth Amendment right to the effective assistance of counsel.[12] See Ciganek Aff., Ex. H. Petitioner claimed that, " moments before [he] entered a guilty plea ..., [his] trial attorney . . . told [him] that [his] background; being married to a United States Citizen, no prior criminal history, being convicted of a non-violent crime, were all factors that the immigration court would consider" and that Petitioner " ' might not be deportable ." ' Id. at 2. Petitioner argued that " [t]hose statements . .. were an affirmative misrepresentation by [trial counsel] of the collateral consequences of [Petitioner's] guilty plea." Id. at 2. Petitioner argued that his trial counsel " was also ineffective in his assistance when he neglected to object when the trial court falsely / incorrectly stated" that Petitioner " ' may be subject to deportation .'" Id. at 3. In opposition, Respondent argued that Petitioner had raised the same arguments in his pending direct appeal,[13] that sufficient facts appeared on the record for the ineffective assistance claim to be reviewed on direct appeal, and that this motion therefore should be denied pursuant to New York Criminal Procedure Law § 440.10(2)(b).[14] See Ciganek Aff., Ex. I at 5-6. Alternatively, Respondent argued that Petitioner's claims were without merit. See id. at 7-13. On October 13, 2009, the trial court concluded that Petitioner's claims involved " matters of record" and that Petitioner " ha[d] raised these very same issues on his direct appeal" such that his " motion must be denied" pursuant to § 440.10(2)(b). See Ciganek Aff., Ex. J at 2 (unpaginated). The trial court went on to note that, " [e]ven reaching the merits of [Petitioner's] motion, it would nonetheless be denied" under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. at 2-4. On or about October 23, 2009, Petitioner requested permission to appeal the trial court's denial of his motion with the Second Department. See Ciganek Aff., Ex. L. The Second Department denied Petitioner's request on May 13, 2010. See id., Ex. N.

While Petitioner's initial direct appeal was still pending, and following the Supreme Court's decision in Padilla, 559 U.S. 356, 130 S.Ct. 1473, on or about May 16, 2010, Petitioner, proceeding pro se, again moved the trial court to vacate his judgment of

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conviction pursuant to New York Criminal Procedure Law § 440.10. See Ciganek Aff., Ex. O. Petitioner raised the same arguments that he had raised in his first collateral motion and urged the trial court to " consider [his] current 440.10 motion carefully" because, in Padilla, " the U.S. Supreme Court ha[d] basically agreed with the position that [he had] maintained even before [that] decision." Id. at 1 (unpaginated). Petitioner argued that, since Petitioner's previous § 440.10 motion was denied, " the law ha[d] changed regarding the issue(s) presented" and cited the Supreme Court's holding in Padilla. Id. at 5. Respondent opposed this motion. See id., Ex. P. On July 20, 2010, the trial court denied Petitioner's motion, again on the ground that he had raised the " exact same grounds" on his direct appeal, which still was pending. See id., Ex. Q at 2 (unpaginated) (citing N.Y. Crim. Proc. Law § 440.10(2)(b)). The trial court again noted that, even if it did reach the merits of Petitioner's claim, " the motion would nonetheless be denied" because Petitioner's claim did not satisfy the Strickland standard, even as it had been applied by the Supreme Court in Padilla. Id. at 2-4. On or about August 16, 2010, Petitioner requested leave to appeal the trial court's decision. See id., Ex. R; see also id., Ex. K (Petitioner's supplemental request for leave to appeal, dated September 9, 2010). In this request, Petitioner argued that the trial court erred because, among other reasons, " the instant grounds of ineffective assistance of counsel could not be raised on direct appeal because they deal with matters, discussions, and lack of discussions that occurred or did not occur; off the trial record." Id., Ex. R at 2. Respondent opposed Petitioner's request. See id., Ex. S. The Second Department denied Petitioner's request on January 18, 2011. See id., Ex. AA.

H. The Habeas Corpus Proceedings

On March 5, 2010,[15] Petitioner, proceeding pro se, filed a petition seeking a writ of habeas corpus . See Pet. To his initial petition, Petitioner attached the supplemental pro se briefs that he had submitted to the Second Department on his direct appeal and thereby raised the following claims:

(1) Petitioner's appellate waiver was invalid:

(2) the testimony provided by the prosecution's witness at Petitioner's suppression hearing was not credible;

(3) the search conducted by the state troopers was unlawful;

(4) the seizure of the clear plastic bag from Petitioner's pants was unlawful;

(5) the trial court misrepresented the immigration consequences of Petitioner's guilty plea and thereby rendered his plea involuntary and unintelligent;

(6) Petitioner's trial counsel was ineffective for failing to object to the trial court's misleading statement regarding the immigration consequences of his guilty plea.

See Pet.

As noted above, even the Second Department's initial decision on Petitioner's direct appeal was not issued until October 26, 2010. Accordingly, this petition was

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filed long before Petitioner's conviction became final, and Respondent does not dispute that the petition was timely filed within the applicable statute of limitations. See 28 U.S.C. § 2244(d) (setting forth limitation period for habeas petitions).

As discussed by the Court in a previous order, see Dkt. No. 19 at 3, 6-7, Petitioner's sentence expired on or around March 10, 2010, when his two-year period of post-release supervision concluded. Respondent does not dispute that, although Petitioner was no longer serving the prison term portion of his sentence and, indeed, was housed in an immigration detention facility at the time that he filed his petition, he remained " in custody" for purposes of establishing jurisdiction over his habeas petition until his sentence-including the two-year period of post-release supervision-expired. Although " immigration detention is not 'custody' for the purposes of establishing jurisdiction to consider habeas petitions challenging a state court conviction pursuant to 28 U.S.C. § 2254," Ogunwomoju v. United States, 512 F.3d 69, 70 (2d Cir. 2008), " [p]ost-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be 'custody,'" Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006).

On June 20, 2010, following an order by the Court that he do so, see Dkt. No. 3, Petitioner filed an amended petition alleging additional facts regarding the issue of exhaustion. See Am. Pet. To his amended petition, Petitioner again attached his supplemental pro se direct appeal briefs and thereby raised the same claims from those briefs that he had raised initially. See id. In addition, Petitioner attached copies of the motions to vacate that he had filed in the trial court on August 25, 2009 and May 16, 2010 and thereby incorporated his additional factual argument that, prior to the entry of his guilty plea, Petitioner's trial counsel affirmatively misadvised him that deportation was unlikely. See id.

On or about June 20, 2010, Petitioner requested that the Court enter a stay of the habeas proceedings to allow him to exhaust his as yet unexhausted claims. See Dkt. No. 6. Respondent opposed Petitioner's request. See Dkt. No. 16. On December 13, 2010, the Court granted Petitioner's request and entered a stay of the habeas proceedings. See Dkt. No. 19.

On August 2, 2010, Petitioner filed an application for the Court to request pro bono counsel, see Dkt. Nos. 8-9, which initially was denied by the Court, see Dkt. No. 14. However, following Petitioner's filing, on or about December 20, 2010, of a motion for preliminary injunctive relief, see Dkt. No. 21, the Court reconsidered its prior decision and granted Petitioner's application for counsel on January 10, 2011. See Dkt. No. 22. In this order, the Court also denied Petitioner's motion for injunctive relief " on the ground that this Court lacks authority to grant the relief requested while Petitioner's underlying claims remain unexhausted in the state courts." Id. at 1. Petitioner filed objections to this order on or about February 3, 2011. See Dkt. No. 23.

By letter dated July 22, 2011, Petitioner's counsel reported to the Court that Petitioner's claims remained unexhausted due to pending state court proceedings and therefore requested that the habeas proceedings continue to be stayed and that counsel be permitted to supplement Petitioner's objections to the Court's January 10, 2011 order after exhaustion was complete. See Dkt. No. 28. By letter dated January 20, 2012, Petitioner's counsel reported that Petitioner's claims had been exhausted in the state courts, requested that the stay be lifted, and sought permission to " re-file an amended habeas corpus petition . . . to clarify the issues before this

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Court." Dkt. No. 30. The Court granted this request, and Petitioner's second amended petition was filed on or about April 19, 2012. See 2d Am. Pet. On April 25, 2012, the Court formally lifted the stay and ordered Respondent to answer within sixty days. See Dkt. No. 33.

By letter dated July 6, 2012, Respondent notified the Court that Petitioner's second application for a writ of error coram nobis was still pending in state court and requested that the Court again stay the habeas proceedings. See Dkt. No. 35. Petitioner thereafter represented that he " wishe[d] to proceed with this habeas corpus petition, without seeking a stay," and " agree[d] to forego any future amendment to this petition in connection with and resulting from the outcome of" his pending state motion.[16] Dkt. No. 36. Respondent's opposition papers were filed on August 3, 2012.[17] See Ciganek Aff.; Resp't's Mem. Petitioner's reply memorandum was filed on October 5, 2012. See Pet'r's Reply Mem. By letter dated October 9, 2012, Petitioner presented additional argument in support of his petition. See Dkt. No. 42.

In his second amended petition, Petitioner raises only one claim: " Petitioner was denied effective assistance of counsel when his attorney failed to inform him of the immigration consequences of his plea," and, therefore, " Petitioner is entitled to a vacation of the guilty plea under Padilla v. Kentucky." 2d Am. Pet. at 4 (typeface altered from original); see also id. at 4-11; Pet'r's Reply Mem. at 2-8. Petitioner's ineffective assistance of counsel claim is based on his contention that " prior counsel never advised him that he would be subject to mandatory deportation," 2d Am. Pet. at 7, as shown at least in part by counsel's failure to object when the trial court stated that Petitioner " may" face immigration consequences. See id. at 10-11 (noting that trial " counsel had an obligation to inform [Petitioner] of this certainty, and at a minimum, object to the Court's instruction" ); Pet'r's Reply Mem. at 4 (arguing that " it was obvious from the exchange between the Petitioner and the Court that the Petitioner was unaware that the result of his plea would be mandatory deportation, yet his attorney remained silent" and that " [t]he fact that Petitioner's attorney did not object or comment as his client was being told by the Court that his plea may have immigration consequences, when the plea would quite certainly cause Petitioner to be deported, goes to satisfying the first prong of Strickland " ). Petitioner further argues that he was prejudiced by counsel's deficient conduct because " it would have been rational to reject the plea had the Petitioner been aware of the consequences - mandatory removal." 2d Am. Pet. at 9. Respondent opposes Petitioner's claim on the merits. See Resp't's Mem. at 8-15.

III. DISCUSSION

A. Applicable Law on Habeas Corpus Review

" Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citing Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with

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the procedural requirements set forth in 28 U.S.C. § § 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claims in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), are summarized below.

1. Timeliness Requirement

A federal habeas corpus petition is subject to AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period and specifies that the latest of these shall apply. See id. § 2244(d)(1). Under the statute, the limitations period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See id. § 2244(d)(2). The statute reads as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(d)(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Id. § 2244(d).

The one-year limitation period is subject to equitable tolling, which is warranted when a petitioner has shown " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). In the Second Circuit, equitable tolling is confined to " rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation marks omitted), which have " prevented [the petitioner] from filing his petition on time," Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling must " demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time

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notwithstanding the extraordinary circumstances." Id.

2. Exhaustion Requirement

A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see 28 U.S.C. § 2254(b)(1) (" [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant" ); id. § 2254(c) (the petitioner " 'shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented" ). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claim. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

To exhaust a federal claim, the petitioner must have " fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus " giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (internal quotation marks omitted). " Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (internal citation omitted) (citing Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Such notice requires that the petitioner " apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). A claim may be " fairly presented" to the state courts, therefore, even if the petitioner has not cited " chapter and verse of the Constitution," in one of several ways:

(a) [R]eliance 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.

Dave v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

However, " [f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation marks omitted). " In such a case, a petitioner no longer has remedies available in the courts of the State within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (internal quotation

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marks omitted). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either " cause for the procedural default and prejudice attributable thereto," Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), or " actual innocence," Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the petitioner's claim will remain unreviewable by a federal court.

Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are " plainly meritless." Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); see 28 U.S.C. § 2254(b)(2) (" An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." ); see also, e.g., Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).

3. Procedural Default

Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon an adequate and independent finding of a procedural default" to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995).

A state court decision will be " independent" when it " fairly appears" to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Coleman, 501 U.S. at 740). A decision will be " adequate" if it is " 'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)).

4. AEDPA Standard of Review

Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute " modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners," and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.

§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim " on the merits" and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Where the state court " did not reach the merits" of the federal claim, however, " federal habeas review is not subject to the deferential standard that applies under AEDPA . . . . Instead, the claim is reviewed de novo ." Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009); see § 2254(d).

Under the first prong of the AEDPA deferential standard, a state court decision is contrary to federal law only if it " arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision involves an " unreasonable application" of Supreme Court precedent if the state court " identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it " either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.

Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by " clear and convincing evidence." § 2254(e)(1).

B. Analysis of Petitioner's Claim

1. Procedural Bar

Although Respondent opposes Petitioner's claim only on the merits, and apparently concedes that Petitioner's claim is not defaulted, the Court considers the issue sua sponte given the complex procedural history of this case. See Mitchell v. Miller, No. 08 Civ. 8495 (NRB), 2009 WL 2924310, at *5 n.12 (S.D.N.Y. Sept. 10, 2009) (noting that " [t]he Second Circuit has held that a district court should raise a procedural default issue sua sponte unless one of four exceptions applies to the circumstances of the habeas petition," none of which apply in the present case) (quoting Washington v. James, 996 F.2d 1442, 1451 (2d Cir. 1993)).

As discussed above, Petitioner initially presented a claim for ineffective assistance of counsel in his pro se supplemental direct appeal brief to the Second Department and based this claim solely on his trial counsel's failure to object to the trial court's allegedly misleading statements regarding the potential immigration consequences that Petitioner faced following entry of his guilty plea. While his direct appeal was pending, Petitioner also raised his ineffective assistance claim--premised not only on his trial counsel's failure to object to the court's statement regarding immigration consequences, but also on his trial counsel's allegedly having misadvised him regarding immigration consequences prior to the commencement of the on-the-record plea proceedings--in two collateral motions in the trial court, pursuant to New York Criminal Procedure Law § 440.10. As discussed above, the trial court denied each of these motions on the grounds that Petitioner had raised this ineffective assistance claim on direct appeal, the direct appeal was still pending, and sufficient facts appeared on the record for the claim to be considered on direct

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appeal. The Second Department denied Petitioner's requests for leave to appeal each of these trial court decisions.

Following the decisions on Petitioner's § 440.10 motions, the Second Department considered and denied Petitioner's direct appeal ineffective assistance claim on the merits on October 26, 2010. That decision, however, ultimately was vacated after the Second Department granted Petitioner's subsequent application for a writ of error coram nobis . Despite the trial court's prior determinations that Petitioner's ineffective assistance claim should be reviewed on direct appeal rather than via collateral motion, Petitioner, proceeding through newly assigned appellate counsel, failed to present his ineffective assistance claim on his subsequent direct appeal and therefore ultimately failed to present this claim to the state courts on direct review. Despite abandoning this claim for purposes of his direct appeal, Petitioner also did not raise his ineffective assistance of counsel claim through a subsequent collateral motion. Consequently, the last-reasoned state court decision to consider Petitioner's ineffective assistance of counsel claim is the trial court's July 20, 2010 decision denying Petitioner's § 440.10 motion.

As noted above, the trial court's denial of Petitioner's § 440.10 motion rested on a state procedural rule, specifically New York Criminal Procedure Law § 440.10(2)(b). " [W]hen a state court judgment rests on independent and adequate state law grounds, including a petitioner's failure to meet state procedural requirements, a federal court may not consider the petitioner's substantive claims." Bonilla v. Portuondo, No. 00 Civ. 2369 (JGK)(JCF), 2004 WL, at *9 (S.D.N.Y. Feb. 26, 2004) (Report and Recommendation), adopted by 2004 WL 1782174 (S.D.N.Y. Aug. 9, 2004). A state court's " express reliance" on a state procedural rule " constitutes an 'independent' state law ground for that decision. . . . even when the state court addresses the merits in reaching an alternative holding." Whitley v. Ercole, 642 F.3d 278, 286, 286 n.8 (2d Cir. 2011). " A procedural bar is 'adequate' if it is based on a rule that is 'firmly established and regularly followed by the state in question.'" Pearson v. Greiner, No. 02 Civ. 10244 (RJH)(GWG), 03 Civ. 1477 (RJH)(GWG), 2004 WL 2453929, at *9 (S.D.N.Y. Nov. 3, 2004) (quoting Garcia, 188 F.3d at 77) (Report and Recommendation).

Although the trial court addressed the merits of Petitioner's ineffective assistance claim in the alternative, its denial of Petitioner's motion was expressly based on the independent state law ground of New York Criminal Procedure Law § 440.10(2)(b). See Ciganek Aff., Ex. Q. In order to determine whether the state procedural ground is adequate, the Court considers the following " guideposts" that have been set forth by the Second Circuit:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had " substantially complied" with the rule given " the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 381-85, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)). " [T]he adequacy of a state procedural bar is determined with reference to the 'particular application' of the rule; it is not enough that the rule 'generally serves

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a legitimate state interest.'" Id. (quoting Lee, 534 U.S. at 387); see also Johnson v. Sabourin, No. 03 Civ. 0791 (KMW)(RLE), 2005 WL 2663039, at *3 (S.D.N.Y. Oct. 14, 2005) (" If the 'state procedural rule [is] employed infrequently, unexpectedly, or freakishly . . . [it] is not an . . . adequate state ground.'" ) (quoting McLaurin v. Kelly, No. 94-CV-1560 (RSP/GJD), 1998 WL 146282, at *3 (N.D.N.Y. Mar. 27, 1998)) (Report and Recommendation).

In the present case, it is apparent that the trial court relied on § 440.10(2)(b) in denying Petitioner's ineffective assistance claim, and Petitioner was on notice that the trial court's decision rested on this procedural ground, yet failed to make efforts to comply with this rule by ultimately raising his ineffective assistance claim on direct appeal or in a subsequent § 440.10 motion. Accordingly, the first and third guideposts arguably favor a finding of adequacy. See Johnson, 2005 WL 2663039, at *4, *5-6 (finding that state court's reliance on § 440.10(2)(b) was adequate, in part, because trial court had cited this rule as basis for its decision; petitioner's ineffective assistance claim could have been " heard on the merits" if petitioner had raised it on direct appeal; and, despite potential " 'Catch-22'" posed by appellate counsel's belief that this claim did not appear on the record and thus would not have been reviewed on direct appeal, petitioner " should have pursued both avenues of relief and, on appeal, focused his arguments on facts within the record" ).

Having considered the second guidepost, however, the Court concludes that the trial court's reliance on § 440.10(2)(b) does not constitute an adequate state law ground because New York state case law suggests that application of this procedural bar was not " demanded in the specific circumstances presented." Cotto, 331 F.3d at 240. The New York Court of Appeals has held that, " [g]enerally, the ineffectiveness of counsel is not demonstrable on the main record," and, therefore, " in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10." People v. Brown, 45 N.Y.2d 852, 853-54, 382 N.E.2d 1149, 410 N.Y.S.2d 287 (1978); cf. Bonilla, 2004 WL, at *10 (noting that " a review of New York caselaw demonstrates that CPL § 440.10(2)(c) is not regularly followed in the context of ineffectiveness [ sic ] assistance claims" ). While some ineffective assistance claims, including claims based solely on failures to object, may appear on the record and therefore be more properly considered on direct appeal, see, e.g., Sweet v. Bennett, 353 F.3d 135, 139, 140 (2d Cir. 2003), " mixed claim[s] of ineffective assistance that depend[], in part, upon matters that do not appear on the record" are not " procedurally barred" by New York Criminal Procedure Law § 440.10(2)(b), and the " 440.10 proceeding is the appropriate forum for reviewing [such claims] in [their] entirety." People v. Maxwell, 89 A.D.3d 1108, 933 N.Y.S.2d 386, 388 (App.Div. 2011); accord People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314, 315 (App.Div. 2012) (finding that, because defendant's " mixed claim" of ineffective assistance of counsel " cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the ineffective assistance claim in its entirety" ) (internal quotation marks omitted).

Here, Petitioner presented a mixed ineffective assistance claim in his § 440.10 motion because his claim rested partly on his trial counsel's failure to object during the plea colloquy--which does

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appear on the record--and partly on his trial counsel's alleged failure to properly inform Petitioner about the immigration consequences before he entered his guilty plea--which does not appear on the record. Accordingly, " compliance with" New York Criminal Procedural Law § 440.10(2)(b) was not " demanded in the specific circumstances presented," Cotto, 331 F.3d at 240, because " sufficient facts" did not " appear on the record . . . to permit adequate review" upon direct appeal, N.Y. Crim. Proc. Law § 440.10(2)(b). See People v. Gonzalez, 36 Misc.3d 1210[A], 957 N.Y.S.2d 265, 2012 N.Y. Slip Op 51246[U], No. 3258-1996, 2012 WL 2914164, at *2-3 (Sup.Ct. Bronx Cnty. 2012) (table opinion) (finding that " the advice that defendant may or may not have received" from counsel regarding immigration consequences of guilty plea " would not have explicitly appeared on the record, separate and apart from whatever information this court imparted to him during the allocution" and, therefore, ineffective assistance claim was " not procedurally barred" under New York Criminal Procedure Law § 440.10(2)(c)); cf. People v. Harris, 109 A.D.2d 351, 491 N.Y.S.2d 678, 687 (App.Div. 1985) (noting that " instant claim of ineffective assistance, predicated entirely, as it is, upon alleged faulty legal advice given by counsel, appears to be one preeminently necessitating CPL article 440 review" and finding, therefore, that " procedural bar of CPL 440.10(2)(c) should not have been applied to [this] claim" ). The trial court's reliance on this rule, therefore, is not an adequate procedural bar. Cf. Pearson, 2004 WL 2453929, at *10 n.3 (noting that, " where the ineffective assistance claim is not record-based, federal habeas courts have held that the rule of CPL § 440.10(2)(c) is not 'adequate'" ); Bonilla, 2004 WL 350694, at * 10 (finding that, because " New York courts have . . . held that a claim challenging an attorney's failure to call witnesses does not sufficiently appear on the record so as to require dismissal of that claim if raised for the first time on a § 440.10 motion,. . . . it is appropriate to review the merits of the petitioner's claim" ).

The Court therefore will review the trial court's alternative merits holding pursuant to the AEDPA deferential standard.[18] See Tatum v. Lempke, 481 F.Appx. 659, 662 n.4 (2d Cir. 2012) (noting that, where state court " found . . . claim to be procedurally barred but also addressed its merits," federal habeas court " must afford AEDPA deference" to " state court's alternative holding on the merits," rather than review petitioner's claim de novo ).

2. Merits

Petitioner argues that his guilty plea rendered him statutorily subject to mandatory deportation; that, under Padilla, his trial counsel was obligated to inform him of this clear immigration consequence but failed to do so and failed even to object to the trial court's allegedly misleading statement on the issue; and that his trial counsel's conduct, therefore, was constitutionally deficient. See 2d Am. Pet. at 6-7, 10-11; see also Pet'r's Reply Mem. at 4-5. Petitioner claims that he has established prejudice because " it would have been rational to reject the plea had the Petitioner been aware of the consequences -- mandatory removal." 2d Am. Pet. at 9; see also Pet'r's Reply Mem. at 5-7. Specifically, Petitioner argues that the Court " would be hard pressed to hold that a non-citizen facing mandatory deportation would not find it rational to reject a plea bargain and

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take his chances at trial." Pet'r's Reply Mem. at 5. According to Petitioner, because the evidence against him was " uncertain at best," it would have been rational for him to proceed to trial rather than face mandatory deportation. Id. at 6. Petitioner further contends that, " [b]y entering an open plea, Petitioner was subject to the same sentence as if he had taken the matter to trial, which bolsters his argument that there is more than a reasonable probability that he would have taken the matter to trial." Dkt. No. 42.

Respondent argues in opposition that the petition should be denied because " Rockland County Court's determination that petitioner was not denied the effective assistance of counsel was neither contrary to, nor involved an unreasonable application of, clearly established federal law as established by the United States Supreme Court in Strickland and Padilla." Resp't's Mem. at 2 (internal citations omitted). Specifically, Respondent argues that " whether counsel failed to inform petitioner of the potential immigration consequences of his guilty plea is immaterial because the judge apprised [him] of the issue in open court" and that, given the " strength of the evidence and the extremely favorable plea bargain, petitioner failed to establish prejudice." Id. at 10-11.

The Counsel Clause of the Sixth Amendment of the United States Constitution provides that a criminal defendant " shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const, amend. VI. The Supreme Court has construed this clause to afford criminal defendants the right to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A petitioner's ineffective assistance of counsel claim will succeed on the merits if the petitioner proves (1) that " counsel's representation fell below an objective standard of reasonableness," as measured under " prevailing professional norms," Strickland, 466 U.S. at 688, and (2) that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. A habeas petitioner bears the burden of proving both prongs of the Strickland test. See Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005). He therefore must prove that his attorney's actions were objectively unreasonable and that he was prejudiced to the extent that there exists a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-96. Because a petitioner may succeed only by proving both Strickland prongs, " there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. Moreover, as the Supreme Court has noted, " [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult" given that " [t]he standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (internal citations omitted) (quoting Strickland, 466 U.S. at 689; Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)).

To show that an attorney's conduct was unreasonable, the petitioner must overcome " a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

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Additionally, a " fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. In the guilty plea context, the Supreme Court recently held that the Court's " longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand" that " counsel must inform her [noncitizen] client whether his plea carries a risk of deportation." [19] Padilla, 130 S.Ct. at 1486. Where the " terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence" for a petitioner's conviction such that counsel is able to " easily determine[] that [a noncitizen client's] plea would make him eligible for deportation," counsel's " duty to give correct advice" regarding her client's " deportation [being] presumptively mandatory" is " clear." Id. at 1483; see also id. (noting that, " [w]hen the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences," but. " when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear" ) (emphasis added). " It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly establishes the first prong of the Strickland analysis.'" Id. at 1484 (quoting Hill v. Lockhart, 474 U.S. 52, 62, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

The prejudice inquiry in the context of a challenge to a guilty plea asks whether " counsel's constitutionally ineffective performance affected the outcome of the plea process," which requires the petitioner to " show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59; see also Padilla, 130 S.Ct. at 1485 (noting that, " to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" ). In some cases, the court's determination of whether it would have been " rational" for the petitioner " to insist on going to trial," Roe v. Flores-Ortega, 528 U.S. 470, 485, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), may depend in part on " predictions of the outcome at a possible trial." Hill. 474 U.S. at 59-60. " [W]here necessary," such predictions " should be made objectively, without regard for the 'idiosyncrasies of the particular decisionmaker.'" Id. at 60 (quoting Strickland, 466 U.S. at 695).

In short, the prejudice inquiry in the guilty plea context " requires a fact-specific analysis that evaluates the weight of the evidence, the consequences of various legal

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options, and any circumstances that may affect a decision to enter a plea." Francis v. United States, No. 12 Civ. 1362 (AJN), 2013 WL 673868, at *3 (S.D.N.Y. Feb. 25, 2013). " In determining whether a petitioner has made the requisite showing, '[c]onclusory allegations that [a petitioner] would have insisted on proceeding to trial are generally insufficient to establish actual prejudice under Strickland.'" Id. (quoting Scott v. Superintendent, No. 03-CV-6383, 2006 WL 3095760, at *9 (E.D.N.Y. Oct. 31, 2006)). Rather, the " 'Second Circuit generally 'requires some objective evidence other than defendant's assertions to establish prejudice.'" Id. (quoting Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003)). As the Supreme Court has noted, " it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland's prejudice prong." Padilla, 130 S.Ct. at 1486 n.12.

When considering the merits of Petitioner's ineffective assistance claim, the trial court concluded that Petitioner's claim did not satisfy the Strickland standard, even as interpreted by the Supreme Court in Padilla. See Ciganek Aff, Ex. Q at 2-4. Specifically, the court found that Petitioner had " not satisf[ied] the first prong of the Strickland test" because he had " not established that deportation was automatic or that the result was sufficiently clear such that his attorney had an affirmative duty to give definitive advice regarding deportation" pursuant to Padilla and because he " was properly advised by the Court during his plea colloquy that the conviction may have immigration consequences." Id. at 3. The trial court further found that Petitioner had " not satisf[ied] the second prong of the Strickland test by demonstrating prejudice" since he " merely allege[d] that he would have gone to trial if he received adequate advise [ sic ]" and had " not established any likelihood or even a reasonable possibility that he would have been acquitted following trial. . . . [g]iven the strength of the People's case . . . ." Id. at 4.

Even assuming that Petitioner's trial counsel engaged in conduct that was deficient under Padilla such that the trial court's conclusion that Petitioner failed to satisfy the first Strickland prong was contrary to, or reflected an unreasonable application of, clearly established federal law,[20] Petitioner's claim nonetheless fails because he has not demonstrated prejudice. See Strickland, 466 U.S. at 697 (holding that, " [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed" ). " To determine whether the decision to proceed to trial rather than plead guilt)' would have been rational, courts first look to the weight of the evidence against the petitioner." Francis, 2013 WL 673868, at *4; see also Boakye v. United States, No. 09 Civ. 8217 (RWS), 2010 WL 1645055, at *4 (S.D.N.Y. Apr. 22, 2010) (noting that " the Second Circuit has often rejected ineffectiveness claims by determining that, in view of the strength of the prosecution's case, the defendant is unable to establish prejudice" ). Here, the prosecution's case

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included evidence that a clear plastic bag containing a white substance was recovered from Petitioner's pants following a police search, as well as a laboratory report confirming that the recovered substance indeed was cocaine and that it weighed in excess of one half-ounce, as required for conviction under New York Penal Law § 220.16(12). The strength of this evidence, as well as Petitioner's having acknowledged his guilt, weighs against a finding of prejudice. See Francis, 2013 WL 673868, at *4 (" [T]he evidence against [petitioner] was strong, he acknowledges his guilt, and it is more than reasonable to assume that he would have been found guilty and faced the same immigration consequences had he proceeded to trial." ).

" In addition to the weight of the evidence" against the petitioner, " courts also look to the consequences of the various legal options available to a petitioner, for example, whether the petitioner benefited from pleading guilty and whether the petitioner could have succeeded entirely or at least avoided the deportation consequences had he gone to trial." [WL] at *5. While Petitioner argues that he received no benefit from pleading guilty, the record reflects that Petitioner received a recommendation from the prosecution of only four years imprisonment instead of a possible maximum term of nine years. Moreover, Petitioner's guilty plea enabled Petitioner and his attorney to seek (and obtain) leniency at sentencing based upon Petitioner's full acceptance of responsibility--a factor which surely influenced the court's decision to impose the one-year minimum sentence which was substantially below the prosecutor's recommendation.[21] Given the weight of the evidence described above, on the other hand, Petitioner has not demonstrated a reasonable likelihood that he would have avoided the deportation consequences had he proceeded to trial. Thus, this second factor also weighs against a finding of prejudice.

Finally, courts have recognized that a noncitizen defendant might be willing to forego the potential benefits of pleading guilty and instead be willing to risk trial in the hope of avoiding deportation given " familial ties and [other] bonds to the United States" and have considered this possibility when " addressing the Strickland prejudice prong." Francis, 2013 WL 673868, at *5. Here, however, Petitioner has offered no specific arguments regarding his ties to the United States and instead has argued simply that he would have gone to trial rather than face mandatory deportation. Such a conclusory assertion, however, is insufficient to demonstrate prejudice. See Boakye, 2010 WL 1645055, at *6 (" The conclusory claim in Petitioner's brief that he would have gone to trial but for counsel's alleged ineffectiveness, standing alone, does not establish prejudice under Strickland." ).

Strickland requires that Petitioner show a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. " That is, even if a petitioner can demonstrate extraordinary circumstances that would make a seemingly irrational choice to go to trial appear more reasonable, that petitioner still must demonstrate

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that going to trial could have resulted in a different outcome." Francis, 2013 WL 673868, at *6. Given the considerations discussed above, the Court concludes that Petitioner likely " would have been subject to deportation proceedings even had his counsel informed him of the deportation consequences of pleading guilty," and, therefore, Petitioner has not established prejudice because he " is unable to show that the outcome in his case would have resulted in anything but his being deported." [WL] at *6-7. Accordingly, this Court is unable to conclude that the trial court's decision denying Petitioner's ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established federal law, and I respectfully recommend that the petition be denied on the merits.

IV. CONCLUSION

For the reasons set forth above, I conclude--and respectfully recommend that Your Honor should conclude--that the petition should be DENIED. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).


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