REPORT AND RECOMMENDATION

JOAN AZRACK, Chief Magistrate Judge

By Order dated February 3, 2006, the Honorable Carol B. Amon referred the above captioned matter to me, pursuant to 28 U.S.C. § 636(b), for a report and recommendation to determine Petrix Desrosiers' ("petitioner") petition for a writ of habeas corpus. Petitioner brings this action pursuant to 28 U.S.C. § 2254 challenging his plea of guilty to Robbery in the First Degree (N.Y. Penal Law § 160.15) in the Supreme Court of the State of New York, Queens County. Following his plea of guilty, petitioner was sentenced to a determinate prison term of twelve years and a five-year term of post-release supervision, and is currently incarcerated at Otisville Correctional Facility. Specifically, petitioner alleges that his constitutional right to due process was violated because his plea was not knowingly or voluntarily made, but rather the result of duress. Additionally, petitioner seeks to amend his petition to add a claim that his plea was not knowing or voluntary, alleging that the court failed to inform him of the post-release supervision term.

Having carefully examined the entire record, I respectfully recommend that petitioner's motion to amend his petition be denied and his application for a writ of habeas corpus be denied. I further recommend that a certificate of appealability not be issued because petitioner has failed to make a substantial showing of the denial of a constitutional right.

I. BACKGROUND

A. Petitioner's Plea and Sentence

On the evening of October 26, 2000, petitioner and four other individuals robbed a barber shop located at 225th Street and Linden Boulevard in Queens, New York (Dkt No. 8(2): 02/13/03 Plea Mins. 21:1-17). At the time, the barber shop served as a front for an illegal gambling operation (Dkt No. 8(2): Aff. in Opp'n to Def.'s Mot. to Set Aside Sentence (hereinafter "D.A. Aff.") (01/06/05) ¶ 2). Petitioner, along with an accomplice, entered the barber shop while the others remained outside (Plea Mins. 21:18-23). With knowledge that his accomplices were carrying weapons, petitioner opened the locked door to allow the others to enter the barber shop (Id. at 21-22). Petitioner and his accomplices then robbed the individuals inside (Id. 22:6-9). During the course of the robbery, one of the accomplices fired a gun, killing one of the robbery victims (Id. 22:10-15).

Petitioner and his co-defendants were indicted for Murder in the Second Degree (N.Y. Penal Law § 125.25(3)), Robbery in the First Degree (N.Y. Penal Law § 160.15(1), (2)), Burglary in the Second Degree (N.Y. Penal Law § 140.25(1)(a), (1)(b)), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)), and Conspiracy in the Fourth Degree (N.Y. Penal Law § 105.10(1)) (D.A. Aff. ¶ 3).

On February 13, 2003, petitioner, with counsel and family present, appeared before Justice Robert Hanophy in Supreme Court, Queens County. After extensive discussions with the court and his counsel, petitioner pled guilty to Robbery in the First Degree in satisfaction of the indictment. The court announced that the sentence would likely be a prison term of twelve years in exchange for his plea (See Plea Mins. 2-12). During the plea, petitioner affirmed that he had fully discussed the meaning and consequences of the plea with his attorney (Id. at 13:5-24). He acknowledged the rights he was waiving as a result of the plea, including the right to appeal (Id. at 14-15). He declared that no one coerced or threatened him into pleading guilty and that he received no promises other than an estimate of a twelve year prison sentence from the court (Id. at 15-18). Finally, petitioner acknowledged that the court informed him of the mandatory post-release supervision term included in his sentence (Id. at 23:11-18). Pursuant to the plea agreement, petitioner received a twelve year prison sentence on March 13, 2003 (Dkt No. 8(2): 03/13/03 Sentencing Mins. 4:7-11).

B. Subsequent Procedural History

1. Notice of Appeal

On May 30, 2003, petitioner filed a notice of appeal (D.A. Aff. ¶ 10). Instead of perfecting his appeal, however, petitioner filed a motion pursuant to N.Y. Crim. Proc. Law § 440.

2. Petitioner's First Collateral Attack

Petitioner moved on November 19, 2003 in Supreme Court, Queens County, to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10. Petitioner alleged that his plea was entered under duress. He claimed that the trial judge threatened him with a sentence of twenty-five years to life if he refused to take the plea (Dkt No. 8(5): Def.'s Mem. of Law (11/19/03) at 2). In addition, petitioner alleged that the prosecutor introduced material evidence she knew to be false and that a police detective beat him (Id. at 1-2).

On February 9, 2004, the court denied petitioner's motion. The court held that the motion was procedurally barred with respect to the duress claim, finding that this was an issue for direct appeal, since it involved on-the-record conduct (Dkt No. 8(5): Opinion of Hanophy, J. (02/09/04) at 2). Moreover, the claim was without merit since the record indicated that the court only stated that the petitioner could have received a sentence of twenty-five years to life (Id.). The remaining claims were procedurally barred and deemed unsupported by the record and lacking in factual basis (Id. at 1-2). Petitioner moved for leave to appeal to the Appellate Division, Second Department on March 9, 2004 (Dkt No. 8(5): Notice of Application for Leave to Appeal (03/09/04)). Leave to appeal was denied on April 27, 2004 (Dkt No. 8(5): Decision Order (04/27/04)).

3. Petitioner's Direct Appeal

Petitioner moved in Appellate Division, Second Department on April 7, 2004 for an order to reduce his sentence (Id. ¶ 18). This motion served as petitioner's direct appeal. Petitioner argued that his waiver of his right to appeal, as part of his plea agreement, was not knowing or voluntary and additionally, that the twelve-year sentence was excessive (See Dkt No. 8(3): Appellant's Mem. of Law (04/07/04) at 1, 4). Although petitioner raised the subject of post-release supervision, it was done only in conjunction with the argument that the sentence was harsh and excessive. At that time, petitioner made no assertion that his plea was not knowing or voluntary as a result of the post-release supervision (See id. at 4). The Appellate Division, Second Department affirmed petitioner's sentence on October 12, 2004, without opinion (Dkt No. 8(2): Decision Order (10/12/04)). On November 30, 2004, the New York Court of Appeals denied leave to appeal (Dkt No. 8(1): Decision Order (11/30/04)).

Petitioner moved to reargue the denial of his motion to reduce his sentence on August 26, 2005 (Dkt No. 11: Aff. in Opp'n to Mot. to Amend the Writ of Habeas Corpus (12/16/05) ¶ 28). The basis for this motion was the court's alleged failure to advise petitioner of the term of post-release supervision in light of the recent decision in People v. Catu, 4 N.Y.3d 242 (2005) (requiring trial courts to inform defendants of post-release supervision before a guilty plea). The Appellate Division, Second Department denied the motion on November 3, 2005 (Id. ¶ 30).

4. Petitioner's Second Collateral Attack

Following his April 7, 2004 motion to reduce his sentence, petitioner made a motion to the trial court on October 25, 2004 to set aside his sentence, pursuant to N.Y. Crim. Proc. Law § 440.20. Here, petitioner alleged that his sentence was excessive relative to the sentences imposed on his co-defendants (Dkt No. 8(7): Notice of Mot. to Set Aside Sentence (10/25/04) at 2). Moreover, petitioner claimed, for the first time, that the court never informed him of the mandatory period of post-release supervision (Id. at 3).

On January 25, 2005, Justice Hanophy denied petitioner's motion. The court held that it could only alter a sentence with respect to § 440.20, if the sentence was unauthorized, illegally imposed, or otherwise invalid as a matter of law (Dkt No. 8(7): Opinion of Hanophy, J. (01/25/05) at 2). The claim regarding post-release supervision was found to be procedurally barred pursuant to § 440.20(2), "since the merits of that claim have been previously rejected by an appellate court." (Id.). Petitioner had raised the subject of post-release supervision in his motion to reduce his sentence on April 7, 2004. Petitioner moved for leave to appeal to the Appellate Division, Second Department on February 21, 2005 (Dkt No. 8(6): Mot. for Leave to Appeal (02/21/05)). Leave to appeal was denied on April 15, 2005 (Dkt No. 8(6): Decision Order (04/15/05)).

C. The Instant Habeas Proceeding

On June 1, 2005, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Specifically, petitioner argues that his plea was not knowing or voluntary since he pled guilty under duress. The prosecutor, he claims, allegedly coerced petitioner into his plea by threatening him with the testimony of an accomplice, should a trial occur. Furthermore, petitioner claims that the judge threatened him with a sentence of twenty-five years to life if he was convicted at trial (Dkt No. 1: Pet. for Writ of Habeas Corpus (hereinafter "Pet.") (06/01/05) at 4). The petition was originally filed in the Southern District of New York and was transferred to the Eastern District since a substantial part of the events giving rise to the claim occurred in this Court's jurisdiction (Dkt No. 2: Transfer Order (06/01/05)).

On November 22, 2005, petitioner made a motion to amend his petition pursuant to Fed.R.Civ.P. 15(a). Petitioner wishes to add a claim that his plea was not knowing or voluntary since the sentencing judge failed to inform him of the post-release supervision term included in his sentence (Dkt No. 10: Aff. of Pet'r in Supp. of Mot. to Amend Pet. (11/22/05) ¶ 7).

II. DISCUSSION

A. Standard of Review — AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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. 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (citation and internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002) (holding that the Supreme Court opinion in question "must be read as not only prohibiting certain specific actions, but also as creating a broad standard or principle that the courts must, in reason, follow") (emphasis added); see also Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of a "well-settled and clearly established" Supreme Court precedent. Torres v. Berbary, 340 F.3d 63, 72 (2d Cir. 2003).

Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

B. Timeliness of Habeas Petition

Generally, a petitioner must file an application for a writ of habeas corpus in federal court within one year of the date on which petitioner's state court conviction became final. See 28 U.S.C. § 2244(d)(1). Petitioner's conviction became final on February 28, 2005, the date on which his time to seek a writ of certiorari from the United States Supreme Court expired. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (citing Sup. Ct. R. 13(1) ("A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.")). Therefore, petitioner had one year, or until February 28, 2006, to file his application for a writ of habeas corpus. Petitioner filed his application on June 1, 2005 and it is therefore timely.

C. Motion to Amend

Petitioner seeks to amend his petition for a writ of habeas corpus pursuant to Fed.R.Civ.P. 15(a). Once a responsive pleading has been a filed, a party may only amend its pleading "by leave of the court or by the written consent of the adverse party; and leave shall be freely given as justice requires." Fed.R.Civ.P. 15(a). According to the Second Circuit, a motion to amend a petition for a writ of habeas corpus is governed by this rule, and not the "more stringent standard of 28 U.S.C. § 2244(b)(2)," which prohibits second or successive habeas corpus applications. Littlejohn v. Artuz, 271 F.3d 360, 362-63 (2d Cir. 2001). An amended petition does not constitute a successive petition because "there has been no federal adjudication on the merits." Id. at 363. A "habeas petitioner, like any civil litigant, is entitled to amend his petition. . . ." Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001).

The district court, however, retains discretion to grant or deny leave to amend. This discretion allows the district courts to avoid "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). "Where it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993) (Per curiam).

Although petitioner is entitled leave to amend as justice requires, the amendment would be futile and unproductive in this case. The claim that Justice Hanophy did not inform the petitioner of post-release supervision is without merit. Furthermore, the claim is likely barred from federal habeas review on the grounds of a state procedural default.

1. Merits of the Post-Release Supervision Claim

Petitioner's amendment would be futile since the claim is without merit. Although the substance of the claim involves clearly established federal law, there is no factual basis for petitioner's allegation.

A court's failure to inform a defendant of post-release supervision is a violation of clearly established federal law. Although petitioner incorrectly relies on People v. Catu, 4 N.Y.3d 242 (2005), to advance a federal claim, the Second Circuit recently held that a court's failure to inform defendant of mandatory post-release supervision violated clearly established Supreme Court precedent. See Earley v. Murray, 451 F.3d 71, 73-75 (2d Cir. 2006) (holding that the court's failure to inform petitioner of post-release supervision at plea negotiations, allocution, or sentencing violated the clearly established Supreme Court precedent that the only sentence known to the law is the sentence or judgment entered upon the records of the court) (quoting Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936)).

Thus, although petitioner has a claim under clearly established federal law, there is no evidence to support his allegation. To be constitutionally valid, a plea must be entered into knowingly and voluntarily, with an understanding of its consequences:

It is beyond dispute that a guilty plea must be both knowing and voluntary. The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.

Petitioner's plea minutes demonstrate explicitly that petitioner was advised that the sentence imposed by the court would include a period of post-release supervision (See Plea Mins. 23:11-18). Indeed, petitioner answered affirmatively when asked if he understood that post-release supervision was one of his plea penalty provisions:

[THE COURT]: Sir, do you realize and I am advising you that your sentence includes a period of post-release supervision? During the period of post-release supervision if you violate a condition of the release then you can be subjected to a further period of incarceration; do you understand?

DEFENDANT DESROSIERS: Yes, sir.

(Plea Mins. 23:11-18).

2. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(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 case law 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.

For federal habeas review to be barred on the grounds of a state procedural default, "[t]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Harris v. Reed, 489 U.S. 255, 261-62 (1989) (citation and internal quotation marks omitted). If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris, 489 U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

In the instant case, it is likely that the claim regarding post-release supervision is procedurally barred. Petitioner brought this claim in a collateral attack, pursuant to N.Y. Crim. Proc. Law § 440.20. A movant may not bring a claim in a § 440.20 motion that was previously adjudicated by the Appellate Division. See N.Y. Crim Proc. Law § 440.20(2). Although it is not clear if the Appellate Division actually considered the merits of this claim on direct appeal, as discussed in the procedural history above, the trial court clearly held that the post-release supervision claim was dismissed on procedural grounds (Dkt No. 8(7): Opinion of Hanophy, J. (01/25/05) at 2). Therefore, petitioner failed to comply with the procedural requirements of § 440.20 in bringing his claim regarding post-release supervision.

Petitioner also fails to satisfy the cause and prejudice test. A petitioner can overcome a state procedural default, for purposes of federal habeas review, if he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law. Coleman, 501 U.S. at 750. Cause, in this context, is "something external to the petitioner, something that cannot fairly be attributed to him," which impedes petitioner's ability to comply with the state procedural rule.Id. at 753. Petitioner's application for habeas corpus is devoid of any facts giving rise to a cause for the default.

Although it is not necessary to consider if actual prejudice resulted from the alleged violation of federal law, see Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982) ("Since we conclude that these respondents lacked cause for their default, we do not consider whether they also suffered actual prejudice."), the alleged violation of federal law did not prejudice petitioner. Prejudice exists where, but for the alleged violation, petitioner might not have been convicted. See Reed v. Ross, 468 U.S. 1, 12 (1984). Since petitioner pled guilty, he cannot make this assertion. Moreover, the court's refrainment from considering this claim will not result in a fundamental miscarriage of justice. Petitioner must demonstrate that "the constitutional error in his plea colloquy `has probably resulted in the conviction of one who is actually innocent.'" Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Actual innocence is established where "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted [petitioner]." Id. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (internal quotation marks omitted)).

Although petitioner offered sworn affidavits from friends attesting to his innocence (Dkt No. 8(5): Aff. of Nathaniel Martin, dated 08/25/03 Aff. of Marc Charles Paul, dated 10/21/03 (11/19/03)), he has failed to establish his actual innocence. Generally, such exculpatory affidavits do not establish actual innocence, as they are not reliable. See Deoleo v. Miller, No. 02-CV-6436, 2003 WL 23199522, at *8 (E.D.N.Y. Dec 2, 2003) ("[T]he recantation and affidavit evidence from petitioner's co-perpetrators does not establish that petitioner is actually innocent of the crimes of conviction" since they "are not reliable" because "recantation evidence is not uncommon after trials are complete and little or no risk attends a prisoner who may be motivated to assist a friend."). Moreover, petitioner entered a plea of guilty under oath, giving a factual allocution satisfying each element of the charge. Thus petitioner cannot satisfy the standard of actual innocence. In light of his guilty plea, petitioner is hard-pressed to show that it is more likely than not that no reasonable juror would have convicted him. See Schlup, at 327-30. Accordingly, this claim is likely precluded from federal habeas review.

Petitioner's claim that the court did not inform him of the post-release supervision term is without merit, and likely procedurally barred from federal habeas review. Therefore, petitioner's amendment would be futile. Accordingly, I respectfully recommend that petitioner's motion to amend be denied.

D. Petitioner's Duress Claim

The sole remaining claim in petitioner's application for habeas relief is that his plea was not knowing or voluntary and produced as a result of duress. Petitioner alleges that the prosecutor threatened him with the testimony of an accomplice and that the judge threatened him with a sentence of twenty-five years to life if convicted at trial. Although petitioner properly exhausted this claim at the state level, the claim is barred from federal habeas review due to a state procedural default. Moreover, the claim is without merit.

1. Exhaustion of State Remedies

A petitioner has the procedural burden of proving that he has exhausted his claims in state court. "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 the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b). In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust all available state remedies for each federal claim alleged in the petition for habeas corpus.See Rose v. Lundy, 455 U.S. 509, 522 (1982). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman, 501 U.S. at 731. Exhaustion requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Here, petitioner has exhausted his claim that his plea was a result of duress. Petitioner raised it in a § 440.10 motion to vacate judgment of conviction, as opposed to direct appeal. (See Dkt No. 8(5): Mot. to Vacate Judgment (11/19/2003) at 1). A habeas petitioner can exhaust a claim through a § 440 motion. See e.g., Armstrong v. Duncan, No. 03 Civ. 930, 2003 WL 22339490, at *8 (S.D.N.Y. Oct. 14, 2003) (holding that a petitioner's claim was unexhausted since it was not included in his § 440.10 motion); Sanford v. Senkowski, 791 F. Supp. 66, 69 (E.D.N.Y. 1992) (noting that the exhaustion doctrine requires only that a petitioner present his claim once on direct or collateral review). After the motion was denied by the trial court, petitioner moved for leave to appeal the denial of this motion (See Dkt No. 8(5): Notice of Application for Leave to Appeal Denial of § 440.10 Mot. (03/09/04)). Leave to appeal was denied on April 27, 2004 (Dkt No. 8(5): Decision Order (04/27/04)). Petitioner has exhausted his claim at the state level, since the Appellate Division denied him leave to appeal regarding the § 440.10 motion. See People v. Williams, 342 N.Y.S.2d 75, 76 (App.Div. 1973) ("No appeal lies from an order denying a motion for leave to appeal to [the Appellate Division].").

2. Procedural Bar

Petitioner's duress claim, however, is procedurally barred. Petitioner brought this claim in a collateral attack, pursuant to N.Y. Crim. Proc. Law § 440.10. A movant may not bring a claim in a § 440.10 motion where sufficient facts appear on the record to permit review of the issue on direct appeal and movant failed to do so. See N.Y. Crim Proc. Law § 440.10(2)(c). Petitioner was required to bring this claim on direct appeal, not in a collateral attack, since the alleged duress occurred during petitioner's plea. The trial court clearly indicated that the duress claim was dismissed on this ground (Opinion of Hanophy, J. (02/09/04) at 2). "Federal courts have continuously held that the failure to comply with Criminal Procedure L. § 440.10 is an independent and adequate state ground to dismiss a writ of federal habeas corpus." Gaiter v. Lord, 917 F. Supp. 145, 149 (E.D.N.Y.,1996).

Petitioner cannot satisfy the cause and prejudice test with respect to this claim. His petition does not address cause for the default. Moreover, nothing in the application suggests an external reason for the advancement of petitioner's duress claim through an improper procedural vehicle.

The court's refrainment from considering this claim will not result in prejudice or a fundamental miscarriage of justice. The alleged duress during the plea negotiation must have "resulted in the conviction of one who is actually innocent." Bousley, 523 U.S. at 623 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). For the reasons stated above, petitioner cannot satisfy the standard of actual innocence. Accordingly, this claim is precluded from federal habeas review.

3. Merits of the Duress Claim

Even if this Court could review petitioner's claim of duress, the claim would ultimately fail on the merits. Under oath, in open court, petitioner stated that no one threatened him into accepting the plea offer:

THE COURT: Has anybody threatened you?

DEFENDANT DESROSIERS: No, sir.

THE COURT: No. Listen to what I'm saying. No one's threatened you to take this plea, right?

DEFENDANT DESROSIERS: No, sir.

THE COURT: Are you entering this plea voluntarily of your own free will?

DEFENDANT DESROSIERS: Yes.

(Plea Mins. 16:5-13).

"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Although such declarations are not an insurmountable barrier to a habeas claim, see id. at 74-75, the record in this case — coupled with this declaration — demonstrates that petitioner's duress claim is without merit.

Petitioner's allegation that the prosecutor threatened him with the testimony of an accomplice at trial does not amount to duress. Plea offers are not per se coercive; plea bargaining is constitutional. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("While confronting a defendant with the risk of more severe punishment clearly may have a `discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable' — and permissible — `attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'" (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973))). The fact that the prosecutor made petitioner aware that an accomplice would likely testify at trial was an inevitable reality of the government's case and one which rightly helped inform petitioner's decision to plead, not coerce it. When a prosecutor openly presents a defendant with such realities, due process has not been violated.See id. at 364-65.

Petitioner's claim regarding the conduct of the trial court is also without merit. Under New York law, "`a trial judge is permitted to participate in plea negotiations with criminal defendants.'" McMahon v. Hodges, 382 F.3d 284, 289 n. 5 (2d Cir. 2004) (quoting People v. Fontaine, 28 N.Y.2d 592, 593 (1971)). The judge may even form opinions about petitioner's likely guilt. See id. at 290 ("`opinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . prior proceedings do not constitute a basis for a bias or partiality motion.'" (quoting Liteky v. United States, 510 U.S. 540, 555 (1994))). The record clearly indicates that Justice Hanophy merely informed the petitioner of the maximum sentence he could receive if convicted of the charges in the indictment. The judge did not threaten petitioner with the maximum sentence if he did not accept the plea offer or in any other way coerce petitioner into accepting the plea (See Plea Mins. 6:4-10).

Petitioner's claim that his plea was not knowing or voluntary because of duress is barred from federal habeas review and, in the alternative, is without merit. Accordingly, I respectfully recommend that petitioner's application for habeas corpus be dismissed.

E. Certificate of Appealability

A habeas petitioner who has been denied relief by the district court on a claim may not appeal the denial to a federal court of appeals except by permission. The district court may grant a certificate of appealability with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253;Miller-El v. Cockrell, 537 U.S. 322 (2003). Any claims for which a certificate of appealability is granted will be reviewedde novo by the Court of Appeals. As discussed above, petitioner has failed to make a substantial showing of the denial of a constitutional right with respect to his claims. Accordingly, I respectfully recommend that a certificate of appealability not be issued.

III. CONCLUSION

For the foregoing reasons, I respectfully recommend that petitioner's motion to amend be denied and his petition for a writ of habeas corpus be dismissed. Furthermore, I recommend that a certificate of appealability not be issued.

Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).