United States District Court, E.D. New York
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
Before the Court is Walter Anderson's ("petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is DENIED and the case is dismissed with prejudice.
On October 23, 2006, a Suffolk County, New York grand jury issued an indictment charging petitioner with: (1) two (2) counts of criminal possession of a weapon in the third degree under New York State Penal Law § 265.02; (2) one (1) count of aggravated unlicensed operation of a motor vehicle in the second degree under New York Vehicle and Traffic Law ("VTL") § 511.2A; (3) failure to signal when turning pursuant to VTL 1163(c); and (4) failure to use headlights while operating windshield wipers pursuant to VTL § 375.02. On March 27, 2007,  petitioner pleaded guilty to one count of attempted criminal possession of a weapon in the third degree, in violation of Penal Law § 265.02(4), a class "E" felony, in satisfaction of all pending charges. Aff. in Opp. ¶ 4; Exh. 2 p. 4. During petitioner's plea allocution, he stated that the weapon belonged to him and was operable. Aff. in Opp. ¶ 4, Exh. 2 pp. 7-8. On September 18, 2007, the state court imposed a sentence of three (3) years imprisonment with five (5) years post-release supervision. Aff. in Opp. ¶ 5. Prior to the imposition of sentence, the government filed a Prior Felony Offender ("PFO") statement with the court pursuant to New York Criminal Procedure Law § 400.21, to which petitioner did not object. Id.
On August 2, 2010, petitioner moved to set aside his sentence on the ground that it was illegally imposed. Id. at ¶ 6. The government, apparently unaware that petitioner was sentenced as a PFO, did not oppose the motion. Id. The state court modified petitioner's sentence on November 3, 2010, vacating the five (5) year term of post-release supervision and imposing a new period of supervision. Id. However, on December 15, 2010, the government apparently filed a motion to renew and reargue the period of post-release supervision. Id. at ¶ 7. On January 26, 2011, petitioner withdrew his motion to set aside his sentence and the court confirmed the original sentence. Id at ¶ 8.
Petitioner's petition pursuant to 28 U.S.C. § 2254, alleges that: (1) he did not own the weapon found in his home; (2) the weapon was inoperable and was not a weapon as a matter of law; (3) he was never sentenced as a "multiple felony offender"; (4) he pleaded guilty to an "E" class violent felony which is a lesser charge; and (5) he was given five (5) years post-release supervision instead of three (3), which is the maximum allowed by law.
A. Legal Standard for a Writ of Habeas Corpus by a Person in State Custody
"In reviewing a state prisoner's habeas corpus petition pursuant to 28 U.S.C. § 2254, a federal district court makes an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution, or any laws and treaties of the United States." McCool v. New York State, 29 F.Supp.2d 151, 157 (W.D.N.Y. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)).
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 28 U.S.C. § 2254(a) provides that a "district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A federal court may grant a writ of habeas corpus to a State prisoner where the federal claim was "adjudicated on the merits" in state court if 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 presented in the State court proceeding. 28 U.S.C. § 2254(d).
"An adjudication on the merits' is a "substantive, rather than a procedural, resolution of a federal claim.'" Sellars v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). A "state court adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, ' and (2) reduces its disposition to judgment." Id. (quoting 28 U.S.C. § 2254(01)). "When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's ...