JUDITH C. McCARTHY United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Cathy Seibel, United States District Judge:

Petitioner Mark Fields ("Petitioner"), proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by papers dated June 14, 2012. (Docket No. 2). By affidavit and memorandum of law dated November 2, 2012, Respondent William A. Lee, Superintendent, Green Haven Correctional Facility ("Respondent") opposed the petition. (Docket Nos. 11, 12). Petitioner submitted a reply by papers filed December 26, 2012. (Docket No. 16). For the reasons set forth below, it is respectfully recommended that Petitioner's petition for a writ of habeas corpus be denied.

I. BACKGROUND

A. Crime

On October 18, 1998, Petitioner unlawfully entered the Glen Island Nursing Center in New Rochelle, New York. (Ex. 6 at 1). Petitioner took a number of items, including a television, remote control, tape player and compact disc player. (Id. at 1). He was apprehended shortly thereafter by a police officer who observed Petitioner pushing the above items down the street in a laundry bin. (Id. at 1). During a subsequent search, police recovered burglar's tools and a glass pipe containing cocaine from Petitioner. (Id. at 1).

A grand jury indicted Petitioner for the crimes of burglary in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, criminal mischief in the fourth degree, and possession of burglar's tools. (Ex. 1).

B. Guilty Plea and Sentence

On May 24, 1999, Petitioner pled guilty in the Supreme Court of the State of New York, County of Westchester ("State Trial Court") to burglary in the second degree in full satisfaction of the indictment. (Ex. 2 at 6, 18). Burglary in the second degree is a Class C felony. (N.Y. Penal Law § 140.25; Ex. 2 at 5). Petitioner agreed to a definite sentence of seven-and-a-half years. (Ex. 2 at 13). The Honorable Judge John Perone, Acting Justice of the Supreme Court ("Justice Perone"), released Petitioner on bail but stated that he could sentence Petitioner to a definite sentence of "up to 15 years" if he did not return for sentencing. (Id. at 13-14). Petitioner agreed. (Id. at 14). Justice Perone also informed Petitioner that he would review Petitioner's probation report and impose a period of post-release supervision ("PRS") of between two-and-a-half to five years. (Id. at 15-17). Petitioner stated that he had discussed the matter with his attorney and he agreed that, in consideration of the negotiated plea, he would waive the right to appeal his conviction and sentence. (Id. at 17-18).

Petitioner failed to appear for his sentencing hearing on September 9, 1999. (Ex. 3 at 6). The sentencing hearing was adjourned to October 7, 1999 and Petitioner again failed to appear. (Id. at 6). On November 4, 1999, Justice Perone found that Petitioner "willfully absconded and willfully avoided sentence" and sentenced him "in absentia to 15 years definite term, a $155 surcharge." (Id. at 9). Justice Perone also noted that Petitioner waived his right to be advised of his right to appeal by his willful failure to appear for sentencing. (Id. at 9).

Petitioner was later arrested on a shoplifting charge and his sentence was executed on May 20, 2003. (Ex. 6 at 3).

C. First Motion to Vacate the Judgment or to Set Aside the Sentence

On May 27, 2009, Petitioner, proceeding pro se, filed in the State Trial Court a motion to vacate the judgment against him pursuant to New York Criminal Procedural Law ("N.Y. C.P.L.") § 440.10 ("440.10 Motion") or to set aside his sentence pursuant to N.Y. C.P.L. § 440.20 ("440.20 Motion"). (Ex. 4). Petitioner also filed an amended § 440.10 motion and § 440.20 motion dated August 19, 2009 ("Amended 440 Motion," and, collectively with the 440.10 Motion and the 440.20 Motion, the "440 Motions"). (Supp. Ex. 3).

In the 440.10 Motion, Petitioner asserted that the judgment against him should be vacated because: (i) his guilty plea was not entered voluntarily, knowingly, or intelligently because Justice Perone failed to advise him of the essential elements of the offense; (ii) Justice Perone failed to impose a period of PRS as required by law and failed to advise him that PRS was a consequence of a guilty plea; (iii) Petitioner never entered a guilty plea on the record because he believed he was only admitting to having committed a predicate felony, and not the current charges against him; and (iv) his conviction should be reversed in the interest of justice because the building he entered is not a "dwelling" and therefore a conviction of burglary in the third degree would be more appropriate than a conviction of burglary in the second degree. (Ex. 4).

In his 440.20 Motion, Petitioner asserted that his sentence should be set aside because: (i) Justice Perone never imposed a term of PRS; (ii) his sentence was excessively harsh and severe; and (iii) his due process rights were violated by his failure to be present at sentencing. (Ex. 4).

In his Amended 440 Motion, Petitioner asserted that the judgment against him should be vacated or his sentence should be set aside because his counsel was ineffective for: (1) failing to challenge an allegedly unlawful search and seizure and unlawful identification procedure; (2) failing to negotiate a plea to the lesser offense of burglary in the third degree; and (3) proceeding with a plea agreement even though Petitioner told counsel that he was not ready to plea. (Supp. Ex. 3).

By papers dated September 16, 2009, the People of the State of New York ("the People") opposed the 440 Motions on all but one ground. (Ex. 5). As to that ground, the People conceded that Justice Perone incorrectly failed to impose the mandatory five-year term of PRS at the time of sentencing and consented to having Petitioner produced for resentencing pursuant to People v. Sparber, 10 N.Y.3d 457 (N.Y. 2008). (Id. at 2 n.2).

By decision and order dated October 7, 2009, the State Trial Court denied the 440 Motions in all respects except one. (Ex. 6). As to that ground, the State Trial Court stated that

since the Court failed to impose any period of postrelease supervision at sentencing, the defendant is entitled to be resentenced in accordance with People v Sparber (10 NY3d 457 (2008)). In Sparber, the Court noted that the remedy for the sentencing courts [sic] failure to pronounce the PRS component of the sentence is to vacate the sentence and to remit for resentencing so the trial judge can make the required pronouncement (Id.; People v Boyd, supra). Accordingly the defendant shall be produced for resentencing in accordance with People v Sparber.

D. Second Motion to Vacate the Judgment or to Set Aside the Sentence

On December 3, 2009, counsel was assigned to Petitioner to assist him with any resentencing issues. (See Ex. 8). By papers dated February 15, 2010, Petitioner, represented by counsel, filed a motion to: (i) vacate Petitioner's fifteen-year conviction and sentence and impose a sentence of seven-and-a-half years instead; (ii) release Petitioner from the custody of the New York State Department of Corrections; and (iii) direct that a Pre-Sentence Report be prepared. (Ex. 8). The People opposed Petitioner's motion by papers dated February 22, 2010. (Ex. 9).

By decision and order dated February 24, 2010, the State Trial Court denied Petitioner's motion ("[t]o the extent that counsel is now rearguing the motion to vacate defendant's conviction, the motion is denied"), except stated that Petitioner "shall be produced for resentencing in accordance with People v Sparber, so that the Court may properly pronounce the sentence to include the mandatory 5 year postrelease supervision." (Ex. 10) (altered from original). E. Sparber Resentencing

On March 3, 2010, Petitioner, represented by counsel, appeared for a Sparber resentencing ("Sparber Resentencing") in the State Trial Court, (Ex. 11). Petitioner's counsel asked the Honorable Judge Susan Capeci, Judge of the County Court ("Judge Capeci") to vacate Petitioner's sentence and to impose the originally promised sentence of seven-and-a-half years instead. (Id. at 3). Judge Perone denied counsel's request and sentenced Petitioner to his original determinate sentence of fifteen years with the added requirement of "five years post-release supervision." (Id. at 7). F. Direct Appeal of Sparber Resentencing

By papers dated August 4, 2010, Petitioner, through counsel, filed an appeal of his Sparber Resentencing with the Second Department. (Ex. 12). Petitioner argued that: (1) his guilty plea was not knowing, voluntary, and intelligent because Justice Perone misinformed him that he could receive a term of PRS less than the mandatory five-year term of PRS; (2) Judge Capeci misunderstood her discretionary authority during the Sparber Resentencing, and the case should be remanded so that the court could consider imposing a reduced term of incarceration; (3) Judge Capeci abused her discretion by failing to consider imposing a reduced term of incarceration and failing to order a presentence report; and (4) the Second Department should exercise its discretion to impose a reduced term of incarceration. (Id.). The People opposed Petitioner's appeal. (Ex. 13).

The Second Department affirmed Petitioner's resentence by order dated December 28, 2010, stating that: (i) Petitioner's claim that his underlying plea was invalid and should be vacated could not be raised on this appeal from his Sparber Resentencing only; (ii) the resentence was not excessive; and (iii) Petitioner's remaining contentions were "without merit." (Ex. 14).

Through counsel, Petitioner submitted an application for leave to appeal the Second Department's decision to the Court of Appeals. (Docket No. 2-3 at 39-43). On March 25, 2011, the New York Court of Appeals (the "Court of Appeals") denied Petitioner's application for leave to appeal. (Ex. 15). The Court of Appeals stated that Petitioner's application was "timely" but that "there is no question of law presented which ought to be reviewed by the Court of Appeals and permission is thereby denied with leave to renew within 30 days." (Id.). Petitioner submitted a pro se motion for reconsideration. (Docket No. 2-3 at 45-53). By order dated June 23, 2011, the Court of Appeals denied Petitioner's motion for reconsideration of its March 25, 2011 order, stating simply that the motion was "UPON the papers tiled and due deliberation, it is ORDERED that the motion for reconsideration is denied." (Ex. 16).

G. Federal Habeas Corpus Proceedings

Petitioner tiled the instant habeas petition ("Petition") on June 14, 2012. (Docket No. 2). Respondent opposed the Petition by papers dated November 2, 2012. (Docket Nos. 11, 12). Petitioner submitted a reply by papers filed December 26, 2012. (Docket No. 16).

Petitioner asserts four grounds for relief. However, construing the Petition broadly, see Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983) ("pleading requirements in habeas proceedings should not be overly technical and stringent"), the Court interprets the Petition to be comprised of fifteen separate claims of error: (1) his guilty plea was not knowing and voluntary because the State Trial Court failed to mention, prior to the entry of his plea, that his sentence included a mandatory five-year term of PRS (Docket No. 2 at 5, 18-25); (2) Justice Perone failed to inform him of the statutory minimum sentence of seven years, thus leaving him unable to bargain for the minimum sentence, (id. at 19); (3) Justice Perone abused his discretion by increasing Petitioner's sentence from seven years to seven-and-a-half years solely because Petitioner exercised his legal right to have a suppression hearing, (id. at 19-20), and by increasing Petitioner's sentence from seven-and-a-half years to fifteen years at the sentencing in absentia, (Docket No. 2-1 at 34, 42): (4) the district attorney committed prosecutorial misconduct by failing to disclose the requirement of PRS during the plea proceeding, (id. at 25-27): (5) Petitioner's sentence of fifteen years of incarceration plus five years of PRS violates N.Y. Penal Law § 70.04(3)(b), (id. at 33); (6) Justice Perone failed to inform Petitioner that the term of PRS would be imposed in addition to his seven-and-a-half-year sentence of incarceration, (id. at 41); (7) Justice Perone induced him to plead guilty by promising him a two-and-a-half year term of PRS when the court was not authorized to impose such a term, (Docket No. 2-1 at 9-10); (8) the State Trial Court tailed to review his plea agreement de novo and failed to hold an evidentiary hearing when considering his 440 Motions, (Docket No. 2 at 8, Docket No. 2-1 at 13, Docket No. 2-1 at 43 - No. 2-2 at 1); (9) Justice Perone improperly participated in plea discussions with counsel in violation of the standards of the American Bar Association ("ABA"), (Docket No. 2-2 at 18-19); (10) his plea counsel was ineffective for informing Petitioner prior to his plea that PRS was another name for parole when "[PRS] differs from parole in significant ways," (Docket No. 2-1 at 25-27); (11) his plea counsel was ineffective because counsel failed to consult with Petitioner prior to initiating a plea discussion with the court and failed to move for an adjournment as Petitioner requested, and Petitioner thereby did not have very much time to consider the plea offer, (Docket No. 2-2 at 25); (12) his plea counsel was ineffective for failing to be aware of the sentencing laws subjecting Petitioner to a mandatory five-year term of PRS, (id. at 25); (13) his plea counsel was ineffective for failing to negotiate a beneficial plea because counsel failed to argue that a nursing home is not a "dwelling" within the meaning of the statute defining burglary in the second degree, (id. at 25-28); (14) his plea counsel was ineffective for tailing to advise Petitioner that the five-year term of PRS would be imposed in addition to his seven-and-a-half-year sentence of incarceration, (id. at 28); and (15) his sentencing counsel was ineffective for failing to properly object to the court's sentencing him in absentia to fifteen years of incarceration, (id. at 16. 29).

II. OVERVIEW OF APPLICABLE LAW

"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "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 the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254." Visich v. Walsh, No. 10 Civ. 4160(ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).

III. TIMELINESS

Respondent submits that the Petition is untimely because Petitioner's time to file a habeas petition challenging his original conviction expired on March 13, 2001 and Petitioner's Sparber Resentencing did not reset the AEDPA statute of limitations. (Opp. at 4-6). For the reasons discussed below, we find that the Petition is timely.

A habeas petition is subject to a one-year statute of limitations, 28 U.S.C. 2244(d)(1). The statute allows for four different potential starting points to determine the limitations period and states that the latest of these shall apply. As the statute explains:

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 tiling 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.

The relevant provision in this case is 28 U.S.C. § 2244(d)(1)(A), which states that the one-year limitation period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" (emphasis added). AEDPA does not define the term "judgment," and neither the Supreme Court nor the Second Circuit has directly addressed the question at issue here—namely, whether a Sparber resentencing leads to a new "judgment" for AEDPA purposes and thereby resets the AEDPA statute of limitations.

The Supreme Court has interpreted the term "judgment" to include both the conviction and the sentence. See, e.g., Magwood v. Patterson, 561 U.S. 320, 342 (2010) ("a sentence and conviction form a single 'judgment' for purposes of habeas review"); Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam) (explaining that AEDPA's statute of limitations did not run until the judgment—"both his conviction and sentence became final") (quotation marks omitted) (emphasis in original); Teague v. Lane, 489 U.S. 288, 314 n.2 (1989) ("As we have often stated, a criminal judgment necessarily includes the sentence imposed upon the defendant.") (citations omitted).

In Magwood, the district court conditionally granted a habeas petition and required that the petitioner be released or resentenced, Magwood, 561 U.S. at 323. After the state trial court resentenced defendant, which involved "a complete and new assessment of all of the evidence, arguments of counsel, and law," the petitioner filed a second habeas petition challenging the new sentence. Id. at 323, 326 (citation omitted). The Supreme Court held that the second petition was not a "second or successive" petition within the meaning of AEDPA because the petitioner challenged a new "judgment"—i.e. the conviction and the new sentence—for the first time. Id. at 323-24. The petitioner in Magwood only raised issues as to his new sentence, and the Supreme Court explicitly declined to address the question of whether its ruling "would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction." Id. at 342 (emphasis in original). In Johnson v. United States, 623 F.3d 41 (2d Cir. 2010), the Second Circuit answered that question in the affirmative. The Second Circuit analyzed Magwood and reasoned that because a "judgment" consists of both a conviction and a sentence, "where a first habeas petition results in an amended judgment, a subsequent petition is not successive regardless of whether it challenges the conviction, the sentence, or both." Johnson, 623 F.3d at 46.

The Second Circuit has since clarified that a judgment is only relevant for AEDPA purposes if the judgment is a result of "substantive proceedings." See, e.g., Marmolejos v. United States, 789 F.3d 66, 70 (2d Cir. 2015) ("Magwood and Johnson . . . stand for the principle that when a judgment is entered on account of new substantive proceedings involving reconsideration of either the defendant's guilt or his appropriate punishment, it is a new judgment for purposes of AEDPA."); Gonzalez v. United States, 792 F.3d 232, 236 (2d Cir. 2015) ("Where a conviction is vacated and the cause Is remanded for substantive proceedings, the new judgment is subject to renewed collateral attack under AEDPA. In contrast, where a trial court has only the ministerial task of entering a new judgment, the original judgment is the relevant judgment for habeas purposes.").

In Gonzalez, the Second Circuit held that the AEDPA limitations period began to run, not when defendant's conviction became final, but only when a "revised restitution order [became] final." Gonzalez, 792 F.3d at 233. The Court reasoned that "[r]estitution is a serious component of criminal punishment, and calculating the restitution amount is hardly ministerial." Id. at 236. Therefore, the Court held, the AEDPA limitations period did not begin to run until after the court had calculated a revised restitution amount. Id. at 233. The reasoning of Gonzalez applies in this case. Like restitution, PRS is a significant component of criminal punishment. As the New York Court of Appeals has stated:

Postrelease supervision is significant. Upon release from the underlying term of imprisonment, a defendant must be furnished with a written statement setting forth the conditions of postrelease supervision in sufficient detail to provide for the defendant's conduct and supervision (see Penal Law § 70.45 [3]). In addition to supervision by and reporting to a parole officer, postrelease supervision may require compliance with any conditions to which a parolee may be subject (see id.), including, for example, a curfew, restrictions on travel, and substance abuse testing and treatment. Moreover, postrelease supervision may require up to six months of participation in a residential treatment facility immediately following release from the underlying term of imprisonment (see id.; Correction Law § 2 [6]). A violation of a condition of postrelease supervision can result in reincarceration for at least six months and up to the balance of the remaining supervision period, not to exceed five years (see Penal Law § 70.45 [1]).

I find that the imposition of PRS was not merely "ministerial." It is not true that "[P]etitioner's judgment could not be altered or amended in any way by his Sparber resentencing," as Respondent argues. (See Opp. at 11). To the contrary. Justice Capeci had the discretion to, "on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision." N.Y. Penal Law § 70.85. (emphasis added). See also, e.g., Mills v. Lempke, No. 11-CV-0440 (MAT), 2013 WL 435477, at *1 (W.D.N.Y. Feb. 4, 2013) (noting that "the trial court, pursuant to P.L. § 70.85 and with the consent of the . . . District Attorney, re-imposed the original 15-year determinate sentence . . . , without imposing any period of PRS."). Therefore, I find that the Sparber Resentencing led to a new "judgment" for the purposes of AEDPA, and the AEDPA limitations period did not begin to run until this new judgment was final.

The Sparber Resentencing occurred on March 3, 2010. (Ex. 11). The Court of Appeals denied Petitioner's motion for reconsideration of its order denying Petitioner's direct appeal of his Sparber Resentencing on June 23, 2011. (Ex. 16). The judgment against Petitioner became final 90 days after that time, on or around September 21, 2011. U.S. Sup. Ct. R. 13; Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Petitioner's time to file a habeas petition was set to expire, one year later, on or around September 21, 2012. Therefore, I find that the Petition was timely filed on June 14, 2012. (See Docket No. 2).

IV. PROCEDURALLY BARRED CLAIMS

Petitioner sets forth six claims that are procedurally barred. Five claims (claims 2, 4, 6. 11 and 15) are unexhausted but should be deemed exhausted and procedurally barred from review by this Court. One claim (claim 7) is exhausted but procedurally barred because the state court's decision on this claim constitutes an independent and adequate ground precluding this Court's review. A. Claims Deemed Exhausted and Procedurally Barred (Claims 2, 4, 6, 11 and 15)

Five of Petitioner's claims (claims 2, 4, 6, 11 and 15) are unexhausted but should be deemed exhausted and procedurally barred from review by this Court.

i. Legal Standard

A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:

(b)(1) 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 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.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

Exhaustion requires a prisoner to have "fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (citation omitted). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). However, "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) (citation omitted). In such cases, the district court may deem the claims to be exhausted, but they are nonetheless procedurally barred from habeas review. See id. at 140 ("a claim is procedurally defaulted for the purposes of federal habeas review where 'the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'") (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).

Under New York law, defendants are permitted only "one direct appeal." Lowman v. New York, No. 09-CV-0058T, 2011 WL 90996, at *9 (W.D.N.Y. Jan. 11, 2011) (citing N.Y. Ct. R. § 500.20). See also Roa v. Portuondo, 548 F. Supp. 2d 56, 78 (S.D.N.Y. 2008) ("Any attempt to raise these claims at this stage as part of a direct appeal would be rejected because a criminal defendant is entitled to only one direct appeal and one application for leave to appeal to the Court of Appeals.").

In addition, "all claims that are record-based must be raised in a direct appeal . . . . It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10." O'Kane v. Kirkpatrick, No. 09 Civ. 05167(HB)(THK), 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) report and recommendation adopted, No. 09 Civ. 05167(HB)(THK), 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011). See also Lowman, 2011 WL 90996, at *9 ("Collateral review of this claim—by way of another CPL § 440 motion—is also barred because the claim is a matter of record that could have been raised on direct appeal, but unjustifiably was not.") (citing N.Y. C.P.L. § 440.10(2)(c) ). In the context of claims for ineffective assistance of counsel, "[c]laims are record-based when a reviewing court could conclude that defendant's counsel was ineffective simply by reviewing the trial record without the benefit of additional background facts that would need to be developed through a post-conviction motion pursuant to CPL 440.10." Rodriguez v. Smith, No. 10-CV-8306 (KMK)(LMS), 2015 WL 6509153, at *14 (S.D.N.Y. Oct. 28, 2015) (citation omitted).

To avoid the procedural default of an unexhausted claim, a petitioner may show "cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent." Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003) (citations omitted).

ii. Claim 2: Justice Perone Failed to Inform Petitioner of Statutory Minimum Sentence

Petitioner's second claim is that Justice Perone failed to inform him of the statutory minimum sentence of seven years, thus leaving him unable to bargain for the minimum sentence. (Docket No. 2 at 19).

Justice Perone's omission is a matter of record that Petitioner could have raised on direct appeal but unjustifiably did not. The claim is therefore deemed exhausted but procedurally barred from review by this Court. Cf. People v. Davis, No. 8222/00, 2007 WL 2481906, at *2 n.6 (N.Y. Sup. Ct. Kings Cnty. Sept. 4, 2007) ("When a trial judge failed to advise a defendant that PRS will be part of the sentence during the plea allocution . . . such omission is a matter of record and the defendant must challenge the plea . . . on direct appeal") (citation omitted). Petitioner has made no attempt to argue cause, prejudice or miscarriage of justice here.

Therefore, I respectfully recommend that the Court deny claim 2.

iii. Claim 4: The District Attorney Committed Prosecutorial Misconduct By Failing to Disclose the Requirement of PRS

Petitioner's fourth claim is that the district attorney committed prosecutorial misconduct by failing to disclose the requirement of PRS during the plea proceeding. (Docket No. 2 at 25-27).

This is a record-based claim that Petitioner could have raised on direct appeal but unjustifiably did not. The claim is therefore deemed exhausted but procedurally barred from review by this Court. See Morgan v. Lee, No. 1:11-CV-0390 (MAT), 2012 WL 5336167, at *6 (W.D.N. Y. Oct. 26, 2012) ("Petitioner's record-based claims of prosecutorial misconduct . . . are procedurally barred from habeas review"); Williams v. Breslin, No. 06-CV-2479 (SJF), 2008 WL 4179475, at *6 (E.D.N.Y. Sept. 9, 2008) ("Since petitioner failed to raise his claim of prosecutorial misconduct on direct appeal, the claim is procedurally defaulted").

Petitioner has made no attempt to argue a miscarriage of justice here. However, he does assert that there was "cause" for his default, arguing that his claims relating to PRS "could not be addressed on direct appeal because the court did not inform nor impose the 5 year term of post release supervision, which would have revealed the court's error of law and false promise that induced the plea." (Docket No. 2-2 at 29-30). This claim is meritless. At Petitioner's plea proceeding, the State Trial Court did tell Petitioner that he would be subject to PRS, although it failed to correctly inform Petitioner that the term was a mandatory five-year term of PRS. (Ex. 2 at 15-17). Where "the record of his plea allocution plainly shows petitioner was told only that there would be a PRS period, not the length of such term," the Petitioner "knew all he needed to know in order to raise this issue on direct appeal." Desrosiers v. Phillips, No. 05-CV-2941 (CBA), 2008 WL 4469594, at *5 (E.D.N.Y. Oct. 3, 2008). Contrary to Petitioner's assertion, the "cause" of Petitioner's failure to file a timely direct appeal was that he absconded for over three years and thus missed the deadline to file a timely appeal. Ortega-Rodriguez v. United States, 507 U.S. 234, 242, n. 12 (1993) ("If the defendant [absconds and] fails to file a timely appeal, his case concludes").

Therefore, I respectfully recommend that the Court deny claim 4. iv. Claim 6: Justice Perone Failed to Inform Petitioner that PRS Would Be Imposed In Addition to His Sentence of Incarceration

Petitioner's sixth claim is that Justice Perone failed to inform Petitioner that the term of PRS would be imposed in addition to his seven-and-a-half-year sentence of incarceration. (Docket No. 2 at 41).

Justice Perone's omission is a matter of record that Petitioner could have raised on direct appeal but unjustifiably did not. The claim is therefore deemed exhausted but procedurally barred from review by this Court. Cf. Davis, 2007 WL 2481906, at *2 n.6 ("When a trial judge failed to advise a defendant that PRS will be part of the sentence during the plea allocution such omission is a matter of record and the defendant must challenge the plea . . . on direct appeal") (citation omitted). Petitioner has made no attempt to argue a miscarriage of justice here, and his claim of "cause" is meritless. See Section IV(A)(iii), supra.

Therefore, I respectfully recommend that the Court deny claim 6.

v. Claim 11: Plea Counsel Was Ineffective Because Counsel Failed to Consult with Petitioner Prior to Initiating a Plea Discussion with the Court

Petitioner's eleventh claim is that his plea counsel was ineffective because counsel tailed to consult with Petitioner prior to initiating a plea discussion with the court and failed to move for an adjournment as Petitioner requested, and Petitioner thereby did not have very much time to consider the plea offer. (Docket No. 2-2 at 25).

Petitioner fairly presented this claim to the State Trial Court in his Amended 440 Motion. (Supp. Ex. 3 at 10) (stating that he received ineffective assistance of counsel pursuant to the Sixth Amendment to the United States Constitution where "the defendant's lawyer was aware that his client was pleading guilty even though that client stated clealy (sic) to him that he was'nt (sic) ready."). The State Trial Court denied his claim as "meritless" because it was "belied by the plea transcript in this case," citing N.Y. C.P.L. § 440.30(4). (Ex. 6 at 11-12). However, because Petitioner thereafter failed to raise the claim in his application for leave to appeal to the Second Department, (Supp. Ex. 1), the claim is unexhausted. See Santos v. Rock, No. 10 Civ. 2896(LTS)(AJP), 2011 WL 3449595, at *9 (S.D.N.Y. Aug. 5, 2011) report and recommendation adopted, No. 10 Civ. 2896(LTS)(AJP), 2011 WL 4000896 (S.D.N.Y. Sept. 7, 2011).

However, Petitioner would not be able to raise the claim again in state court because this is a record-based claim that Petitioner unjustifiably did not raise on direct appeal. Rodriguez, 2015 WL 6509153, at *14 (citation omitted). As the State Trial Court correctly noted, the plea transcript refutes Petitioner's claim. Counsel stated on the record that Petitioner "authorized [him] to enter a plea of guilty." (Ex. 2 at 5). Petitioner also confirmed on the record that he "had enough time to talk to his attorney and to make a decision" and that he was "satisfied with the representation given to [him] by [his] attorney." (Docket No. 2 at 9).

Therefore, I respectfully recommend that the Court dismiss claim 11. vi. Claim 15: Sentencing Counsel Was Ineffective for Failing to Properly Object to the Court's Sentencing Petitioner In Absentia to Fifteen Years of Incarceration

Petitioner's fifteenth claim is that his sentencing counsel was ineffective for failing to properly object to the court's sentencing him in absentia to fifteen years of incarceration. (Docket No. 2-2 at 16, 29). In particular, Petitioner appears to assert that sentencing counsel was ineffective for failing to argue that the court had lost its authority to increase Petitioner's sentence from seven-and-a-half years to fifteen years because Petitioner's underlying plea was invalid. (Id.).

This is a record-based claim that Petitioner unjustifiably did not raise on direct appeal. A court could make a determination as to whether or not sentencing counsel was ineffective simply by reviewing the transcripts from the plea hearing and the sentencing hearing. See Rodriguez, 2015 WL 6509153, at *14 (citation omitted). For example, during the plea proceeding Justice Perone warned Petitioner that he could sentence Petitioner to a definite sentence of "up to 15 years" if he did not return for sentencing. (Ex. 2 at 13-14). During the sentencing hearing, counsel objected to the sentencing in absentia and asked the Court to consider giving Petitioner the originally promised sentence of seven-and-a-half years rather than the increased sentence of fifteen years. (Ex. 3 at 5-6). In addition, Petitioner has made no attempt to argue a miscarriage of justice here, and his claim of "cause" is meritless. See Section IV(A)(iii), supra.

Therefore, I respectfully recommend that the Court dismiss claim 15.

B. Claim Procedurally Barred by Independent and Adequate State Grounds (Claim 7)

One of Petitioner's claims (claim 7) is exhausted but procedurally barred from review by this Court because the state court's decision denying the claim rested on an independent and adequate state ground.

i. Legal Standard

As the Second Circuit has instructed, federal courts "will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment." Kozlowski v. Hulihan, 511 F. App'x 21, 23 (2d Cir. 2013) (citations omitted). This preclusion applies even if the state court alternatively rules on the merits of the federal claim, so long as there is an adequate and independent state ground that would bar the claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).

A state ground is "independent" if it "'fairly appears' to rest primarily on state law." Taylor v. Connelly, 18 F. Supp. 3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). In the normal case, a ground is "adequate only if it is based on a rule that is firmly established and regularly followed by the state in question." Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (citation omitted). However, "there are 'exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'" Id. at 240 (citation omitted). In determining whether a case is "exceptional" in that the state ground should be held inadequate, the Second Circuit uses the following factors as "guideposts":

(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.

To avoid a procedural default based on independent and adequate state grounds, a petitioner may "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (citations omitted).

ii. Claim 7: Justice Perone Unlawfully Promised Petitioner a Term of Two-And-A-Half Years of PRS

Petitioner's seventh claim is that Justice Perone induced him to plead guilty by promising him a two-and-a-half year term of PRS when the court was not authorized to impose such a term. (Docket No. 2-1 at 9-10).

Petitioner fairly presented this claim to the state courts. See Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) (''We have held that if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court."); Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even "a minimal reference to the Fourteenth Amendment" presents a federal constitutional claim to the state courts). Through counsel, Petitioner raised this claim to the Second Department on direct appeal of his Sparber Resentencing. (Ex. 12 at 10-14). Petitioner, again through counsel, failed to raise the claim in his application for leave to appeal to the Court of Appeals. (Docket No. 2-2 at 39-43). The Court of Appeals denied Petitioner's application with leave to renew, (Ex. 15), and Petitioner thereafter did raise the claim in a pro se motion for reconsideration to the Court of Appeals, (Docket No. 2-3 at 45-53). Petitioner's motion for reconsideration stated in relevant part that the judge "made a specific promise" that he would give "2½ years of post release supervision based upon a good probation report" and that this "unlawful plea promise" was part of the "core portion of the proceeding which embodies the Constitutional magnitude that's clearly dealing with Due Process." (Id. at 46). I find that this language is sufficient to satisfy the requirement that Petitioner "fairly present" his federal constitutional claim to the state's highest court. Therefore, this claim is exhausted.

The Second Department denied Plaintiff's claim on procedural grounds, stating that Petitioner's claim "that his underlying plea was invalid and should be vacated . . . may not be raised on this appeal from his resentence only." (Ex. 14) (citing N.Y. C.P.L. § 450.30(3); People v. Ferrufino, 33 A.D.3d 623 (2d Dep't 2006); People v. DeSpirito, 27 A.D.3d 479, 479-80 (2d Dep't 2006) and People v. Luddington, 5 A.D.3d 1042 (4th Dep't 2004)). The Second Department's decision is an independent and adequate ground precluding this Court's review. Gantt v. Martuscello, No. 9:12-CV-657 (MAD/CFH), 2014 WL 112359, at *11 (N.D.N.Y. Jan. 10, 2014) (state court's decision that defendant's claim "should have been raised on the first appeal, not on an appeal from resentencing" was an independent and adequate ground precluding habeas review).

The ground is "independent" because the Second Department "relied on no federal law" in making its determination. Kozlowski, 511 F. App'x at 25. The ground is also "adequate." A review of the case law shows that N.Y. C.P.L. § 450.30(3) is in fact "firmly established and regularly followed" when a defendant attempts to challenge his underlying plea on appeal from a Sparber resentencing. See, e.g., People v. Jordan, 16 N.Y.3d 845, 846 (N.Y. 2011) (citing N.Y. C.P.L. § 450.30(3) and holding that defendant could not challenge his underlying plea on appeal from a Sparber resentencing); accord People v. Toney, 116 A.D.3d 607 (1st Dep't 2014) (citing N.Y. C.P.L. § 450.30(3) and Jordan); People v. Jenkins, 85 A.D.3d 566 (1st Dep't 2011) (citing Jordan); People v. McCoy, 84 A.D.3d 655, 656 (1st Dep't 2011) (citing Jordan); People v. Harper, 85 A.D.3d 617 (1st Dep't 2010) (citing Jordan). But see People v. Franklin, 95 A.D.3d 1591, 1592 (3rd Dep't 2012) (declining to dismiss appeal based on CPL 450.30(3) where defendant appealed from a Sparber resentencing).

Moreover, the Cotto guideposts indicate that this Is not an "exceptional" case in which it would be Inappropriate to rely on Petitioner's procedural default. First, it Is "meaningless to ask whether the alleged procedural violation was actually relied on in the trial court—the violation only first occurred when defendant raised an argument on appeal that he had not raised earlier," Garvey v. Duncan, 485 F.3d 709, 719 (2d Cir. 2007). Indeed, had Petitioner raised this issue on direct appeal, "the trial court would have had the opportunity to consider" his claim. Id. Second, New York state case law indicates that compliance with N.Y. C.P.L. § 450.30(3) was demanded in the specific circumstances presented. See, e.g., Jordan, 16 N.Y.3d at 846. Third, Petitioner failed to file a notice of appeal from his original conviction and therefore failed to substantially comply with the rule. See Gantt, 2014 WL 112359, at *11.

Petitioner has made no attempt to argue a miscarriage of justice here, and his claim of "cause" is meritless. See Section IV(A)(iii), supra. Accordingly, claim 7 is procedurally barred because the State Trial Court's decision denying the claim rested on an independent and adequate state ground.

Therefore, I respectfully recommend that claim 7 be dismissed.

V. CLAIMS DENIED ON THE MERITS

Petitioner sets forth five claims that should be denied on the merits. Two of Petitioner's claims (claims 1 and 13) are exhausted and were adjudicated on the merits by the state courts but should be denied by this Court under the AEDPA standard of review. Three of Petitioner's claims (claims 10, 12 and 14) are unexhausted but should be denied as patently frivolous.

A. Claims Denied Under the AEDPA Standard of Review (Claims 1 and 13)

Two of Petitioner's claims (claims 1 and 13) are exhausted and were adjudicated on the merits by the state courts but should be denied by this Court under the AEDPA standard of review.

i. Legal Standard

When a federal court reaches the merits of a habeas petition, AEDPA prescribes a "highly-deferential" standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320. 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (quoting Harrington, 562 U.S. at 98). An application for a writ of habeas corpus:

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 presented in the State court proceeding.

Courts have interpreted the phrase "adjudicated on the merits" in AEDPA as meaning that a state court "(1) dispose[d] of the claim 'on the merits,' and (2) reduce[d] its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Courts examine the "last reasoned decision" by the state courts in determining whether a claim was adjudicated on the merits, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (noting the presumption that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").

The phrase "clearly established Federal law" means "the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 365 (2000). "A state court decision is contrary to such clearly established federal law if it applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent." Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quotation marks and citations omitted).

A state court decision involves an "unreasonable application" of Supreme Court precedent if: (1) "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "the state court 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." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than incorrect or erroneous—it must have been "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). However, "the trial court's decision need not teeter on 'judicial incompetence' to warrant relief under § 2254(d)." Alvarez v. Ercole, 763 F.3d 223. 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

A state court's decision "that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (citation omitted). If a state court decision does not contain reasons for the dismissal of a defendant's claim, this Court considers "'what arguments or theories could have supported[] the state court's decision,' and may grant habeas only if 'fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court." Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (citation omitted). If a "state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding . . . the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits." Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013) (citation omitted).

ii. Claim 1: Guilty Plea Was Not Knowing and Voluntary Because the State Trial Court Failed to Properly Advise Petitioner that His Sentence Included a Five-Year Mandatory Term of PRS

Petitioner's first claim is that his guilty plea was not knowing and voluntary because the State Trial Court failed to mention, prior to the entry of his plea, that his sentence included a mandatory five-year term of PRS. (Docket No. 2 at 5, 18-25).

Petitioner fairly presented this claim to the state courts. Although Petitioner relied almost entirely on state law when raising this claim in his 440.10 Motion (Ex. 4 at 2-4), he did cite one case as holding that the Court's pronouncement on PRS "did not satisfy Due Process requirement U.S.C.A. Const. Amend. 14," (Ex. 4 at 3). I find that this express citation to the United States Constitution satisfies the "fair presentation" requirement. See Strack, 270 F.3d at 122; Reid, 961 F.2d at 376. Petitioner requested leave to appeal the denial of his 440 Motions, (Supp. Ex. 1), and the Second Department summarily denied his request, (Ex. 7). Therefore, the State Trial Court's order was the last reasoned decision rejecting Petitioner's claim, and we examine this decision to determine whether Petitioner's claim was adjudicated on the merits.

The State Trial Court adjudicated Petitioner's claim on the merits. In denying Petitioner's claim, the State Trial Court stated in relevant part:

This Court's review of the transcript of the plea proceeding demonstrates that the defendant was advised by the Court that a period of postrelease supervision of up to a maximum of 5 years would be imposed upon him at sentencing (Plea minutes at 16). Since the defendant in this case was advised of the requirement of postrelease supervision and possible duration prior to his entry of a plea of guilty , a reversal of the defendant's conviction on this ground is unwarranted (People v Cullen, 62 AD3d 1155 (3d Dept 2009); see also People v Boyd, 12 NY3d 390 (2009) [conviction reversed where court made no mention at plea of duration of postrelease supervision, only that a mandatory period of postrelease supervision would be imposed]).

However, as conceded by the People, since the court failed to subsequently impose any period of postrelease supervision at sentencing, the defendant is entitled to be resentenced in accordance with People v Sparber (10 NY3d 457 (2008)). In Sparber, the Court noted that the remedy for the sentencing court's failure to pronounce the PRS component of the sentence is to vacate the sentence and to remit for resentencing so the trial judge can make the required pronouncement (Id.; People v Boyd, supra).

It is clearly established federal law that a guilty plea "is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citation omitted). It is also clearly established federal law that a guilty plea is void unless a defendant is "fully aware of the direct consequences" of the plea. Bousley v. United States, 523 U.S. 614, 619 (1998) (citation omitted). However, "the Supreme Court has never addressed the issue of whether mandatory supervised release is a direct consequence of one's conviction," and "there is no clearly established Supreme Court precedent that a defendant must be advised of mandatory post-release supervision prior to entering a guilty plea," Rosario v. Laffin, No. 13-CV-00181 (JFB), 2014 WL 2600169, at *12, *13 (E.D.N.Y. June 11, 2014) (collecting cases). Accord Bonner v. Ercole, 338 F. App'x 61, 62 (2d Cir. 2009). Given this lack of precedent, it cannot be said that the state court made a decision that was contrary to, or an unreasonable application of, clearly established federal law. Cf. Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court regarding the [relevant issue in this case], it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'") (citation omitted) (first alteration added, second and third alterations in original).

In addition, the State Trial Court did not "unreasonably determine the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1)-(2). Based on a review of the plea transcript, the State Trial Court found that "the defendant in this case was advised of the requirement of postrelease supervision and possible duration prior to his entry of a plea of guilty." (Ex. 6 at 9). The record clearly supports this determination. Justice Perone informed Petitioner that he would be sentenced to a term of PRS, either "the minimum 2 and-a-half or maximum of 5 or anything in between," and stated that "I will make the determination of the 2 and-a-half to 5 years based on the probation report. If it's a good report I'll give the least, if it's a bad record I will give the most. Do you understand that?" (Ex. 2 at 16). Justice Perone went on to say:

Do you understand. Mr. Fields, that I can not promise you now what the post supervised, post release supervision will be, whether it's the minimum 2 and-a-half or maximum of 5 or anything in between? I will promise you that I will base it on the probation report. If you get a good probation report, the minimum the law allows me to give you on post release supervision [sic], do you understand this?

Therefore, I respectfully recommend that the Court deny claim 1.

iii. Claim 13: Counsel Was Ineffective for Failing to Argue that a Nursing Home Is Not A "Dwelling"

Petitioner's thirteenth claim is that his plea counsel was ineffective for failing to negotiate a beneficial plea because counsel failed to argue that a nursing home is not a "dwelling" within the meaning of the statute defining burglary in the second degree. (Docket No. 2-2 at 25-28).

Petitioner fairly presented this claim to the state courts. Petitioner asserted this claim in his Amended 440 Motion, (Supp. Ex. 3 at 7-8), and the State Trial Court held that Petitioner's claim was "entirely without merit" because Petitioner entered a nursing home, which meets the definition of a "dwelling" under the relevant statute, (Ex. 6 at 12-15). The Second Department summarily denied Petitioner's claim. (Ex. 7). Therefore the State Trial Court's decision is the last reasoned decision rejecting Petitioner's claim, and we examine this decision to determine whether Petitioner's claim was adjudicated on the merits.

The State Trial Court clearly adjudicated Petitioner's claim on the merits. Here, the State Trial Court explicitly stated that it was addressing "defendant's right to counsel under both the Federal and State Constitutions." (Ex. 6 at 13). The State Trial Court then noted that Strickland v. Washington, 466 U.S. 668 (1984) provides the federal standard for analyzing an ineffective assistance of counsel claim, and held that "[a]pplying the above standards to this case, the defendant has failed to demonstrate that his counsel was ineffective." (Id. at 13-14). Thus. I will analyze this claim under the AEDPA standard of review.

For an ineffective assistance of counsel claim, "the Strickland standard . . . is the relevant clearly established Federal law, as determined by the Supreme Court of the United States." Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (quotation marks and citation omitted). To prove that counsel was ineffective. Petitioner must show that: (i) "counsel's representation fell below an objective standard of reasonableness;" Strickland, 466 U.S. at 688, and (ii) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. To satisfy the first Strickland prong, counsel "is not obliged to advance every nonfrivolous argument that could be made." Aparicio, 269 F.3d at 95 (citations omitted). Moreover, "[a]n attorney's '[f]ailure to make a meritless argument does not amount to ineffective assistance.'" United States v. Noble, 363 F. App'x 771, 773 (2d Cir. 2010) (citation omitted) (first alteration added, second alteration in original).

The State Trial Court's decision denying Petitioner's claim was not contrary to, or an unreasonable application of, the above-cited clearly established federal law. Here, Petitioner appears to argue that counsel's representation "fell below an objective standard of reasonableness" because counsel failed to argue that a nursing home is not a "dwelling" within the meaning of the statute defining burglary in the second degree. However, New York law defines a "dwelling" as "a building which is usually occupied by a person lodging therein at night." N.Y. Penal Law § 140.00(3), and a nursing home certainly falls within this definition. Counsel's failure to advance this "meritless argument"—even if one considers it a "nonfrivolous argument"—does not constitute ineffective assistance and this claim fails under the AEDPA standard of review.

Therefore, I respectfully recommend that the Court deny claim 13.

B. Unexhausted Claims that Are Denied as Patently Frivolous (Claims 10, 12 and 14)

Petitioner asserts three claims (claims 10, 12 and 14) that are unexhausted but should be denied as patently frivolous.

i. Legal Standard

The Court has the discretion to deny unexhausted claims on the merits. 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 in the courts of the State."). The Second Circuit has not established a standard for determining when an unexhausted claim may be dismissed on the merits, but many district courts have chosen to deny unexhausted claims that are "patently frivolous." Naranjo v. Filion, No. 02Civ.5549WHPAJP, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (collecting cases). The Supreme Court has noted that a district court should deny "plainly meritless" claims rather than granting a stay and allowing petitioner to exhaust his claims in state court. Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that a "district court would abuse its discretion if it were to grant [petitioner] a stay when his unexhausted claims are plainly meritless.").

All of the claims in this section are claims for ineffective assistance of counsel. These claims should not be "deemed exhausted" because they may still be able to be raised in state court. See Johnson v. Kirkpatrick, No. 11 Civ. 1089(CM)(AJP), 2011 WL 3328643, at *12 (S.D.N.Y. Aug. 3, 2011) (noting that "most ineffective assistance of counsel claims . . . cannot be raised on direct state appeal but rather must be made through a C.P.L. § 440 motion"); N.Y. C.P.L. § 440.10(1) (stating that a motion to vacate a judgment may be made "[a]t any time after the entry of a judgment").

As noted in Section V(A)(iii), supra, in Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set out a two-prong test for establishing a claim for ineffective assistance of counsel. In the context of guilty pleas, to meet the second, or "prejudice" requirement, "the defendant must 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 v. Lockhart, 474 U.S. 52, 58-9 (1985). This "but-for" test requires some "objective evidence" beyond a petitioner's own statement. United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998) (citation omitted). In addition, a petitioner who has pled guilty "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 (2010) (citation omitted).

ii. Claim 10: Plea Counsel Was Ineffective Because He Informed Petitioner that PRS Was Another Name for Parole

Petitioner's tenth claim is that his plea counsel was ineffective for informing Petitioner prior to his plea that PRS was another name for parole when "[PRS] differs from parole in significant ways." (Docket No. 2-1 at 25-27).

Petitioner is correct in noting that PRS differs from parole in certain ways. See, e.g., Rivera v. Annucci, No. 13-CV-1239 (JG), 2015 WL 590185, at *1 (E.D.N.Y. Feb. 11, 2015) ("PRS is similar to parole, but 'a critical distinction is that the period of PRS is added to the maximum prison term imposed by the court, thus increasing the effective length of the sentence, while in contrast a released offender's time on parole is served after release from prison prior to the expiration of the maximum prison term imposed by the court.'") (citation omitted) (emphasis in original). However, Petitioner has utterly failed to show that "counsel's representation fell below an objective standard of reasonableness" when counsel asserted that "PRS was another name for parole." Petitioner also has failed to even argue that there is a reasonable probability that, had counsel informed him of the precise differences between PRS and parole, "he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Moreover, Petitioner has failed to convince the Court that going to trial "would have been rational under the circumstances." Padilla, 559 U.S. at 372. Petitioner was indicted on five separate counts: (i) burglary in the second degree; (ii) petit larceny; (iii) criminal possession of stolen property in the fifth degree; (iv) criminal mischief in the fourth degree; and (v) possession of burglar's tools. (Ex. 1). If found guilty at trial, Petitioner would have faced an incarceration term of seven to fifteen years on the top charge of burglary in the second degree alone. (N.Y. Penal Law § 70.04(3)(b)). Plea counsel negotiated a deal in which Petitioner would plead guilty to burglary in the second degree in full satisfaction of all five charges of the indictment, and he negotiated an incarceration term of seven-and-a-half years—i.e. at the bottom end of the permissible range. Petitioner would have received the mandatory five-year term of PRS whether he went to trial or not. (See N.Y. Penal Law § 70.45(2)). Under these circumstances, going to trial would not have been rational, and Petitioner's claim that he received ineffective assistance of counsel on this ground is patently frivolous.

Therefore, I respectfully recommend that the Court dismiss claim 10.

iii. Claim 12: Counsel Was Ineffective for Failing to Be Aware of the Sentencing Laws Subjecting Petitioner to a Mandatory Five-Year Term of PRS

Petitioner's twelfth claim is that his plea counsel was ineffective for failing to be aware of the sentencing laws subjecting Petitioner to a mandatory five-year term of PRS. (Docket No. 2-2 at 25).

This claim fails the second Strickland prong because Petitioner has failed to show 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. Numerous courts in the Second Circuit have come to the same conclusion in cases involving similar facts. See, e.g., Wilens v. Superintendent of Clinton Corr. Facility, No. 11-CV-1938 (JFB), 2014 WL 28995, at *13 (E.D.N.Y. Dec. 31, 2013) (denying ineffective assistance claim where "[n]othing in the record indicates that Petitioner would not have pled had he been informed of the mandatory PRS"); Potter v. Green, No. 04-CV-1343 (JS), 2009 WL 2242342, at *15 (E.D.N.Y. July 24, 2009) ("Petitioner's only evidence showing that 'but for' counsel's [failure to inform him of PRS], Petitioner would not have pled guilty is Petitioner's [self-serving statement]; however this statement alone is insufficient."); Larweth v. Conway, 493 F. Supp. 2d 662, 692 (W.D.N.Y. 2007) (holding that petitioner did not meet "the rigorous standard . . . of demonstrating that defense counsel's failure to inform him of the period of post-release supervision [was] objectively unreasonable and created a reasonable probability that, had he known of the post-release supervision, he would have chosen not to plead guilty and instead would have proceeded to trial.") (citation omitted).

Petitioner's only evidence showing that he would have rejected the plea if he had known about the additional mandatory term of PRS is his own self-serving statement that if he had "known about the additional components of [PRS], the defendant would not have agreed to the plea." (Docket No. 2 at 27). This assertion is insufficient to establish the second Strickland prong, and I find that Petitioner's claim is patently frivolous.

Therefore, I respectfully recommend that the Court dismiss claim 12. iv. Claim 14: Plea Counsel Was Ineffective for Failing to Advise Petitioner that the Five-Year Term of PRS Would Be Imposed in Addition to His Sentence of Incarceration

Petitioner's fourteenth claim is that his plea counsel was ineffective for failing to advise Petitioner that the five-year term of PRS would be imposed in addition to his seven-and-a-half sentence of incarceration. (Docket No. 2-2 at 28).

This claim is similar to Petitioner's tenth claim is that his plea counsel was ineffective for informing Petitioner prior to his plea that PRS was another name for parole and Petitioner's twelfth claim that his plea counsel was ineffective for failing to be aware of the sentencing laws subjecting Petitioner to a mandatory five-year term of PRS. See Sections V(B)(ii) and V(B)(iii), supra. For the reasons previously stated, this claim is patently frivolous.

Therefore, I respectfully recommend that the Court dismiss claim 14.

VI. CLAIMS NOT COGNIZABLE ON FEDERAL HABEAS REVIEW

Four of Petitioner's claims (claims 3, 5, 8 and 9) should be dismissed because they raise claims that are not cognizable on federal habeas review.

A. Legal Standard

AEDPA constrains federal court review of state court determinations to those in which a person claims to be in custody in violation of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). See also Guzman v. Couture, No. 99CIV11316(RMB)(HBP), 2003 WL 165746, at *11 (S.D.N.Y. Jan. 22, 2003) ("In order for a claim to be cognizable on federal habeas corpus review, it must challenge the legality of custody on the ground that it is 'in violation of the Constitution or laws or treaties of the United States.'") (quoting 28 U.S.C. § 2254(a)).

B. Claim 5: Petitioner's Sentence Violates N.Y. Penal Law § 70.04(3)(b)

Petitioner's fifth claim is that his sentence of fifteen years of incarceration plus five years of PRS violates N.Y. Penal Law § 70.04(3)(b), which states that the sentence for Petitioner's crime "must not exceed fifteen years." (Docket No. 2 at 33).

For the purpose of federal habeas review, "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted); Alfini v. Lord, 245 F. Supp. 2d 493. 502 (E.D.N.Y. 2003) ("It is well settled that an excessive sentence claim may not be raised as grounds for habeas corpus relief if the sentence is within the range prescribed by state law.") (collecting cases); McCalvin v. Senkowski, 160 F. Supp. 2d 586, 589 (S.D.N.Y. 2001) ("Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law."); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) (dismissing excessive sentence claim where the petitioner's sentence fell within the range prescribed by state law).

In this case, Petitioner pled guilty to burglary in the second degree, which is a Class C felony. (Ex. 2 at 6, 18; N.Y. Penal Law § 140.25). New York law states that the sentence for a Class C felony "must not exceed fifteen years." N.Y. Penal Law § 70.04(3)(b). According to Petitioner, his sentence totals 20 years (thereby exceeding the statutory maximum) because he was sentenced to fifteen years of incarceration plus a five-year mandatory term of PRS. (Docket No. 2-2 at 14).

Petitioner's sentence fell within the range prescribed by state law. "In 1998, the New York Penal Law was amended to provide that individuals who committed felonies after September 1, 1998, and who were sentenced to a determinate sentence of incarceration, would also receive a mandatory term of post-release supervision." Van Gorden v. Superintendent, No. 9:03-CV-1350, 2007 WL 844901, at *10 (N.D.N.Y. Mar. 19, 2007) (emphasis in original) (citing N.Y. Penal Law § 70.45(1) ). This provision "is quite clear that the periods of post-release supervision are mandatory and are in addition to the determinate sentence of incarceration imposed." Id. (emphasis in original). Therefore. Petitioner's sentence was within the range prescribed by N.Y. Penal Law § 70.04(3)(b), and this claim is not cognizable for habeas review.

Therefore, I respectfully recommend that the Court deny claim 5. C. Claim 3: Justice Perone Abused His Discretion By Increasing Petitioner's Sentence Solely Because Petitioner Exercised His Legal Right to Have a Suppression Hearing And By Increasing Petitioner's Sentence to Fifteen Years During the Sentencing In Absentia

Petitioner's third claim is that Justice Perone abused his discretion by increasing Petitioner's sentence from seven years to seven-and-a-half years solely because Petitioner exercised his legal right to have a suppression hearing, (Docket No. 2 at 19-20), and by increasing Petitioner's sentence from seven-and-a-half years to fifteen years at the sentencing in absentia, (Docket No. 2-1 at 34, 42).

A claim that a sentencing judge abused his or her discretion is generally not cognizable on federal habeas review. See Rustici v. Philips, 497 F. Supp. 2d 452, 469 (E.D.N.Y. 2007) ("[t]he assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court.") (citation omitted) (alteration in original); Simmons v. McGinnis, No. 04 Civ. 6150(PAC)(DF), 2006 WL 3746739, at *12 (S.D.N.Y. Dec. 19, 2006) ("To the extent Petitioner is claiming that the trial court abused its discretion in sentencing him to a particular prison term, such a claim is not reviewable"); Brown v. Donnelly, 371 F. Supp. 2d 332, 342 (W.D.N.Y. 2005) ("a petitioner's assertion that a sentencing judge abused his discretion in sentencing is generally not a federal claim subject to review by a habeas court."). To the extent Petitioner is claiming that Justice Perone abused his discretion in increasing his sentence, that is not a federal claim subject to review by a habeas court.

Therefore, I respectfully recommend that the Court deny claim 3. D. Claim 8: The State Trial Court Failed to Review His Plea Agreement De Novo and Failed to Hold an Evidentiary Hearing

Petitioner's eighth claim is that the State Trial Court failed to review his plea agreement de novo and failed to hold an evidentiary hearing when considering his 440 Motions. (Docket No. 2 at 8, Docket No. 2-1 at 13, id. at 43 - Docket No. 2-2 at 1).

Claims relating to alleged errors in a state's post-conviction procedures are not cognizable on federal habeas review. See, e.g., Guzman, 2003 WL 165746, at *13 ("[C]laims relat[ing] to alleged deficiencies in [the state's] post-conviction procedures, fail [ ] to present a viable habeas claim.") (citation omitted) (alterations in original); Jones v. Duncan, 162 F. Supp. 2d 204, 219 (S.D.N.Y. 2001) (Petitioner's "assertion that the failure to hold a hearing on his CPL §§ 440.10 and 330.30 newly discovered evidence motions violated due process is not cognizable on federal habeas review."); Diaz v. Greiner, 110 F. Supp. 2d 225, 235 (S.D.N.Y. 2000) ("Petitioner's unsupported assertion that the trial court denied his (third) CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review."); Franza v. Stinson, 58 F. Supp. 2d 124, 152 (S.D.N.Y. 1999) (Petitioner's "vague assertion that the trial court's denial of his CPL § 440.10 motion violated due process and equal protection is not cognizable on federal habeas review."). Petitioner's claim is not cognizable on federal habeas review.

Therefore, I respectfully recommend that the Court dismiss claim 8.

E. Claim 9: Justice Perone Improperly Participated in Plea Discussions with Counsel

Petitioner's ninth claim is that Justice Perone improperly participated in plea discussions with counsel in violation of the standards of the ABA. (Docket No. 2-2 at 18-19).

Nothing in the record suggests that Justice Perone acted improperly. (See Ex. 2). Moreover, a possible violation of the ABA standards is not cognizable on federal habeas review. Cf. Bergman v. Lefkowitz, 569 F.2d 705, 714 n.15 (2d Cir. 1977) ("a possible violation of the State Disciplinary Rule is not of constitutional magnitude so as to be cognizable in federal habeas.").

Therefore, I respectfully recommend that the Court dismiss claim 9.

VII. CONCLUSION

The Court finds that all of Petitioner's fifteen claims of error should be dismissed. Five claims (claims 2, 4, 6, 11 and 15) are unexhausted but should be deemed exhausted and procedurally barred from review by this Court. One claim (claim 7) is exhausted but procedurally barred because the state court's decision on this claim constitutes an independent and adequate ground precluding this Court's review. Two claims (claims 1 and 13) are exhausted and were adjudicated on the merits by the state courts but should be denied by this Court under the AEDPA standard of review. Three claims (claims 10, 12 and 14) are unexhausted but should be denied as patently frivolous. Four claims (claims 3, 5, 8 and 9) should be dismissed because they raise claims that are not cognizable on federal habeas review.

For the foregoing reasons, I conclude and respectfully recommend that this habeas petition be denied in its entirety.

VIII. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.

Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008). Dated: January 27, 2016

White Plains, New York

RESPECTFULLY SUBMITTED,

/s/_________

JUDITH C. McCARTHY

United States Magistrate Judge