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noting that "[e]quitable tolling cannot be based on a petitioner's mistaken belief that a state application's pending when petitioner himself has failed properly to file the state application."
Summary of this case from Hamilton v. Warden of Clinton Correctional FacilityOpinion
No. 03 Civ. 4208 (GEL).
September 1, 2004
Ellis Eiland, Petitioner pro se.
Eliot Spitzer, Attorney General of the State of New York (Jennifer K. Danburg and Willa J. Bernstein, of counsel), New York, New York for Respondent James T. Conway.
OPINION AND ORDER
Ellis Eiland, a New York State prisoner, brings these petitions for a writ of habeas corpus. Unlike most habeas petitions, Eiland's complaints reveal that his rights were likely violated. However, a combination of procedural obstacles to obtaining habeas relief requires dismissal of his petitions.
Eiland has filed two habeas petitions, 03 Civ. 4208 and 03 Civ. 7856. Although the second petition raised different claims, both petitions were based on the same underlying facts. By Order dated October 22, 2003, this Court directed that the two petitions be consolidated pursuant to Federal Rule of Civil Procedure 42(a) and Rule 11 of the Rules governing section 2254 cases, and that all submissions and Court orders be docketed under 03 Civ. 4208.
BACKGROUND
On February 9, 1999, Eiland pled guilty in New York County Supreme Court to attempted burglary in the second degree. (Declaration of Willa J. Bernstein, Ex. B.) On March 2, 1999, he was sentenced to a three-year determinate sentence as a second felony offender. (Bernstein Decl., Ex. C.) The offense to which Eiland pled guilty apparently took place on November 7, 1998, and, for crimes committed after September 1, 1998, New York law mandates that a determinate sentence of this type must also carry a five-year term of post-release supervision, a parole-like status comparable to the federal status of supervised release. N.Y. Penal Law §§ 70.04, 70.06; People v. Bell, 305 A.D.2d 694 (2d Dep't 2003).
Eiland served his prison term, but has been less than successful in complying with the terms of his supervised release. He has been returned to prison several times for violations of supervision, most recently on September 30, 2002, and he remains incarcerated today. (The record does not reveal the nature of the conduct that violated the terms of his release.) He complains, however, that his plea was involuntary and his present detention illegal because he was never informed, either in connection with his guilty plea or at his sentence or by the formal sentence and commitment order filed in his case, that any such supervised release term was part of his sentence. (Bernstein Decl., Ex. A.)
Putting aside for the moment the legal effect, if any, of this failure, or the legal remedy, if any, to which Eiland might be entitled, his complaint appears factually well founded. The transcript of his somewhat cursory guilty plea allocution (Bernstein Decl., Ex. B) discloses that Eiland was advised that he was being promised a three-year sentence in exchange for his guilty plea, but does not contain any advice that his liberty would also be significantly restricted for a further five years beyond his term of imprisonment. The transcript of his sentencing (Bernstein Decl., Ex. C) shows the judge sentencing him to three years in prison, but not to any term of post-release supervision. The Sentence and Commitment Order (attached as an exhibit to Eiland's "Traverse") states that Eiland, having been convicted of attempted burglary in the second degree, is sentenced to a determinate term of three years as a second violent felony offender, and to a "mandatory surcharge and crime victim assistance fee in the amount of $155." However, the box labeled "a sentence of parole supervision is directed by the court" is not checked, and there is no other reference to any term of post-release supervision or any other penalty beyond the three-year sentence and fine.
Eiland claims, and the State does not dispute, that he was not informed of this required aspect of his sentence by his attorney, or indeed by any person, at any time during the prosecution of his case. If this is true, it is easy to imagine his chagrin when he "was informed of [the condition of post-release supervision] for the first time upon the conditional release elligibillity [ sic] about 3.31.2001." (Pet. ¶ 14.) Eiland proceeded to protest the imposition of post-release supervision to various courts. Principally, he has argued (i) that his subsequent incarcerations for violating his post-release supervision were simply illegal because he was never in fact sentenced to such a term of supervision, and (ii) that his guilty plea was involuntary because he waived his right to trial in exchange for what he was told was a flat term of three years of imprisonment, when in fact he was facing the possibility of longer imprisonment in connection with the potential violation of additional restrictions on his liberty of which he had not been advised.
These are hardly insubstantial claims, and it is difficult not to conclude that Eiland was treated unfairly. The record discloses nothing of the strength of the original case against Eiland, or of what defenses he might have had to the charges against him. At a minimum, he had made some sort of legal objection to the prosecution, as it appears on the face of the guilty plea transcript that Eiland had made a motion to dismiss the indictment, which he withdrew as part of the plea bargain. (Bernstein Decl., Ex. B.) Of course, in connection with his plea, Eiland admitted that he was in fact guilty of a crime, but until his plea was entered he had the constitutional right to put the State to its proof. He surrendered that right for a promise of a three-year determinate prison term, not for a promise of three years of jail plus five years of revocable parole supervision that could lead to his re-imprisonment for violations that might include conduct that did not violate any criminal law. Even at the time of his sentencing, moreover, he was not advised that such supervision was a part of his sentence, either orally during the sentencing proceeding or in writing as part of the judgment in his case. (Bernstein Decl., Ex. C; Petitioner's "Traverse.") The State does not contend that Eiland was ever advised of the additional term of supervision, whether by his lawyer, the prosecutor, or the judge; nor does the State contest Eiland's assertion that he first heard of this aspect of what the State contends was his sentence only after he had completed two years of his prison term and was preparing for possible release.
DISCUSSION
Where a habeas petitioner raises patently frivolous claims, there is no need to analyze the often complex procedural barriers to habeas relief; the petition can simply be denied on its merits. Ironically, the barriers set up to spare the courts from meritless petitions have their greatest impact where the petitioner's claims have potential merit. Thus, before proceeding to address whether Eiland's legitimate sense of grievance at his treatment states a claim for legal relief, we are required to detour through some difficult procedural technicalities.
I. Timeliness
The State begins its defense of Eiland's current incarceration by arguing that his petition is untimely. (Resp. Mem. 6-16.) Under 28 U.S.C. § 2244(d), a federal habeas petition is time-barred unless it is brought within one year of (so far as is relevant here) either "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," id. § 2244(d)(1)(A), or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," id. § 2244(d)(1)(D). Since Eiland did not pursue a direct appeal, his conviction became final on April 1, 1999, when the thirty-day period for appeal expired. However, Eiland had no reason to complain of his sentence until he learned of its post-release supervision component, which was described neither at his sentencing nor in the written judgment of conviction. The State offers no reason to disbelieve Eiland's claim that he first learned of this condition on or about March 31, 2001, and makes its attack on the timeliness of his petition "[a]ssuming for the sake of argument" that Eiland's statement is correct. (Resp. Mem. 10). Under these circumstances, the Court will necessarily treat as undisputed that Eiland could not have known, and in fact did not know, of the sentence provision to which he objects, and thus could not possibly have discovered the "factual predicate of [his] claim" until at least March 31, 2001. The time for him to file a federal habeas petition thus began to run on that date.
Eiland argues that the statute of limitations did not begin to run until sometime after March 31, 2001, because he could not have discovered and did not discover the "factual predicate" for his claim until he obtained copies of his plea and sentence transcript and discovered that he had never been advised of the supervised release term of the sentence. (Pet. ¶ 14.) That argument fails, however. The limitations period "runs from the date on which the petitioner has in his possession the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim."Youngblood v. Greiner, No. 97 Civ. 3289, 1998 WL 720681, at *4 n. 4 (S.D.N.Y. Oct. 13, 1998) (Cote, J.). See also United States v. Wims, 225 F.3d 186 (2d Cir. 2000). Eiland knew that he had not been advised of any post-release supervision term — indeed, the entire basis of his petition is that he was taken by surprise when was first informed of such a term by prison authorities — and he became aware on March 31, 2001, that state authorities regarded him as subject to such a term. He thus was aware of all of the factual predicates of his claims on that date. Eiland no doubt needed to gather documentation of his claims before seeking relief, but that need does not toll the running of the statute. The limitations provision does not (unfairly) require him to file a petition as soon as he becomes aware of the problem; it gives him a year from the time he learned of the grounds to file his petition, and thereby takes into account the need to acquire evidence in support of any such petition.
Eiland's initial habeas petition was delivered to prison officials for mailing on January 10, 2003, and received in this Court's pro se office on January 15, 2003. Although it was not formally filed until June 10, 2003, the date the petition was delivered for mailing to prison authorities counts as the date of filing for habeas purposes. Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001). Thus, unless the running of the limitations period was tolled for some reason, the petition was not filed until more than nine months after the one-year limitations period had run.
Chief Judge Michael Mukasey, the judge to whom Eiland's first petition was originally assigned, entered an order on June 10, 2003, directing Eiland to submit an amended petition within sixty days of that Order. Eiland delivered the amended petition to prison authorities on June 24, 2003, and that petition was filed in the District Court on June 27, 2003. The State incorrectly treats the filing of the amended petition, June 24, 2003, as the date of filing for statute of limitations purposes. (Resp. Mem. 5.)
The statute is tolled, however, for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Determining the periods during which the limitations period was tolled in this case presents additional difficulties.
First, Eiland claims that he filed a petition for post conviction relief in Bronx Supreme Court in 2001 (the "Bronx Petition"). Although Eiland's petition at one point indicates that the dates during which the Bronx Petition was pending, and the outcome of the Bronx Petition, are "unknown" to petitioner (Pet. ¶ 12(a)(5), (6)), Eiland at another point approximates that the Bronx Petition was pending "about 7.1.01 to 11.1.01." (Id. ¶ 14.) The record concerning the Bronx Petition is sparse. Eiland submits no documentation regarding the alleged Bronx Petition, enclosing copies neither of the petition, nor of any resulting court decision. The State, for its part, asserts that despite a search of court records, it has been unable to find any record of such a petition. (Resp. Mem. 9 n. 6, 11.) At best, taking petitioner at his word, the Bronx Petition would have tolled the petition for four months. Put another way, assuming for the moment that this undocumented petition was actually filed when Eiland says it was, three months of the twelve-month limitation period were consumed before the Bronx Petition was filed, and nine months remained when the Bronx Petition was decided on or about November 1, 2001. If, on the other hand, the Bronx Petition was not properly filed, seven months would have elapsed by that date, leaving Eiland only five months to timely seek federal habeas relief.
Whatever ambiguities might attend the existence and timing of the Bronx Petition, Eiland is clear that he did not appeal the presumably unfavorable outcome. He states that after being released from custody, he "did not communicate with the court any further" regarding this application. (Pet. ¶ 12(d)(1).)
Second, Eiland indisputably filed a petition in Kings County Supreme Court on June 25, 2002 (the "Kings Petition"). The Kings Petition was denied on August 22, 2002, and petitioner was notified of the denial no later than September 23, 2002, when he was sent a copy of the decision by the Attorney General's Office. Nearly eight months thus elapsed between the alleged denial of the Bronx Petition and the filing of the Kings Petition. Therefore, if Eiland is not credited with tolling during the period of the alleged Bronx Petition, the federal statute of limitations had already run before the Kings Petition was filed. If tolling is allowed for the alleged Bronx Petition, then just under eleven months of the limitations period had been consumed as of the filing of the Kings Petition.
Even if Eiland is credited with tolling during the period of the phantom Bronx Petition, however, further issues need to be resolved. The Kings Petition was pending before the Supreme Court for less than two months, and was denied on August 22, 2002. Eiland did not mail his federal petition until January 10, 2003, four and a half months later. Since the time left to him to file a federal petition, even crediting the alleged Bronx Petition, was only a little more than a month, additional tolling would be necessary for Eiland's federal petition to be timely.
Eiland implicitly argues that the limitations period was tolled throughout the period from August 2002 to January 2003. According to Eiland, he "filed for appeal permission 10.18.02," but his "papers were rejected stating the order being applied to appeal from, has not been received, 1.21.03." (Pet. ¶ 14.) Attached to his "Traverse" is an undated notice, on the letterhead of the County Clerk's Office, County of Kings, stating "We are returning your papers due to: . . . Other: papers must be in order for an appeal[.] Also we have not received the order you are trying to appeal." Eiland does not include a copy of whatever papers he filed that elicited this notice.
An argument can thus be made that Eiland's Kings Petition remained "pending" from the time it was filed until after the date on which he filed his federal habeas petition. As the Court of Appeals has held, a state petition is pending from time it is first filed until it is disposed of and no further appellate review is available under state procedures. Hizbullahankhamon v. Walker, 255 F.3d 65, 72 (2d Cir. 2001). If Eiland timely appealed the denial of his Kings Petition, and the appeal remained pending until it was denied or rejected in January 2003, his federal petition would be timely, always provided that Eiland received credit for the filing of the alleged Bronx Petition.
It appears that Eiland's request for leave to appeal was timely filed, and the State does not contend otherwise. Under N.Y.C.P.L.R. § 5513(b), a defendant must move for permission to appeal within thirty days after service upon the defendant of a copy of the order or judgment sought to be appealed and written notice of its entry. Although there is some disagreement among New York courts as to whether a judgment denying a writ of habeas corpus may be appealed as of right or solely by permission, that debate is irrelevant here; as N.Y.C.P.L.R. § 5520(b) provides that an appeal taken by permission is valid if timely filed, even though an appeal may lie as of right. Eiland apparently received the disposition of his Kings Petition on September 23, 2002, and he claims he filed his appeal papers on October 18, 2002. (2d Am. Pet. ¶ 14.)
This tolling argument, however, is problematic. Eiland did not successfully file a motion for permission to appeal; the motion was never accepted because it was procedurally defective. The limitations period is tolled during pendency of a "properly filed" State petition. 28 U.S.C. § 2244(d)(2). "An application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000). Far from being "properly filed" under this standard, Eiland's appeal of the judgment on his Kings Petition was never filed, precisely because it failed to meet these formal requirements.
This is not a case in which the appeal was properly filed under the formal rules, but was denied on the merits. Cf. Pratt v. Greiner, 306 F.3d 1190 (2d Cir. 2002).
If Eiland's failed attempt to seek review of the denial of the Kings Petition is discounted, then that petition was pending only until the expiration of the time that petitioner would have to seek leave to appeal: 30 days, plus five for mailing, after he was served with notice of the Supreme Court's denial of his motion, or October 28, 2003. Bennet v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). But this is not enough time to save Eiland's federal habeas petition. If the limitations period began to run again on October 29, 2003, Eiland's remaining time to file his federal petition would have expired in late December 2003, and his mailing of that petition on January 10, 2004, would be too late.
In order for his petition to be found timely, then, Eiland would have to prevail on both timing issues: that is, he would have to receive credit for both the disputed and undocumented Bronx Petition and for his unsuccessful effort to "appeal" the denial of the Kings Petition. On the present record, he can prevail on neither. As to the first issue, the record is devoid of any documentary evidence of the filing of the Bronx Petition. In light of Eiland's status as a pro se prisoner, if this were the only issue it might make sense for the Court to grant Eiland additional time to attempt to secure court records regarding the alleged proceeding, or to attempt to resolve the factual issue presented by Eiland's testimony that he filed an application of which the State can find no record. But this issue is mooted, because as a matter of law Eiland's returned application for leave to appeal did not toll the running of the statute of limitations.
Eiland might argue, however, that even if his effort to appeal the judgment on the Kings Petition did not toll the statute of limitations because it was not "properly filed," the limitations period was equitably tolled by that effort. Equitable tolling of the habeas limitations period is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). Such tolling may occur "when some event effectively prohibits the petitioner from filing a timely habeas petition." Raynor v Dufrain, 28 F. Supp.2d 896 (S.D.N.Y. 1998). To be entitled to equitable tolling, a petitioner must show "that extraordinary circumstances prevented him from filing his petition on time," and that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
On the facts of this case, Eiland would have to argue that the Kings County court clerk's delay in returning his appeal papers constituted an "extraordinary circumstance" that kept him from filing in a timely manner. But equitable tolling cannot salvage Eiland's situation in this way. First, the essential circumstance that prevented Eiland's appeal from being "properly filed" is his own failure to perfect his application for leave to appeal. Equitable tolling cannot be based on a petitioner's mistaken belief that a state application is pending when petitioner himself has failed properly to file the state application. See, e.g., Baldayaque v. United States, 388 F.3d 145, 150-151 (2d Cir. 2003) (while attorney misconduct may, under some circumstances, trigger equitable tolling, such relief is only available where the petitioner himself acted with diligence throughout the period he seeks to toll). Second, in the absence of a clear record about the nature of the defects in Eiland's application, or even the date on which the application was rejected, there is no basis for determining that the clerk's delay, if any, qualifies as an "extraordinary" circumstance. Finally, Eiland cannot establish that any delay by the clerk caused the lack of timeliness of his petition, or that he acted with reasonable diligence. Eiland evidently made no effort to follow up on lack of response to his application, nor can he plausibly maintain that he was waiting for such a response before filing his habeas petition, since he apparently filed that petition before his failed appeal application was returned.
Eiland initially sent his petition to this Court, as noted above, on January 10, 2003. In his amended petition, he asserts that his application for leave to appeal was returned to him on January 21, 2003. (Am. Pet. ¶ 14.)
Accordingly, Eiland's petition is not timely, and must be dismissed.
II. Exhaustion
Even if Eiland were able to establish that his petition was timely, he would run afoul of yet another technical obstacle to habeas relief. A federal court may not grant habeas unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). In order to satisfy this requirement, petitioner's claim must have been fairly presented to the "highest state court from which a decision can be had."Daye v. Attorney General, 696 F.2d 186, 190 n. 3 (2d Cir 1982).
Eiland cannot meet this requirement. Although he has attempted (perhaps twice) to challenge his confinement on violations of his post-release supervision by applications for writs of habeas corpus, he has never properly appealed from the denial of those writs. As he admits, he failed to pursue an appeal of his alleged Bronx Petition, or even to learn how it was decided, after being released from his first violation of supervision sentence. And although he attempted to appeal the denial of his Kings Petition, his appeal was not properly filed and he made no attempt to correct the noted defects or otherwise pursue the appeal.
At any rate, as discussed below, the gravamen of Eiland's federal complaint is that his plea was not voluntary because he was not adequately informed of the consequences of his plea. Under New York law, that is a matter that can be raised in the trial court at any time by a motion pursuant to N.Y.C.P.L. § 440.10. See People v. Seaberg, 74 N.Y.2d 1, 10 (1989) ("a defendant always retains the right to challenge the legality of [his] sentence or the voluntariness of his plea"). As Eiland has never filed a § 440 motion in the court of conviction, the Supreme Court for New York County, this avenue of relief remains available to him, and has not been exhausted or even attempted by Eiland as a way of bringing his claims before the state courts.
Contrary to Eiland's argument, this is not a case where state remedies are unavailable because petitioner has already completed his sentence. See Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985); People v. Melio, 760 N.Y.S.2d 216 (2d Dep't 2003). Eiland remains subject, at a minimum, to an ongoing sentence of post-release supervision. His sentence thus remains subject to state collateral attack under N.Y.C.P.L. § 440.10.
Accordingly, even if Eiland's petition were timely, it would still have to be dismissed for failure to exhaust state remedies.
III. Merits
Finally, it must be noted it is far from clear that these various procedural obstacles have the effect of denying Eiland some effective relief to which he is otherwise entitled. At least on the record before this Court, Eiland's constitutional right to due process appears to have been violated, because his guilty plea was not entered knowingly and voluntarily, given the absence of any warning that he was subjecting himself not only to a three-year prison term, but also to a five-year period of post-release supervision that could result in his return to prison for non-criminal conduct. Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975). Assuming for the sake of the argument, however, that this is so, it is not clear that the remedy Eiland seems to want is available.
The state trial court neglected to advise Eiland of the actual terms of the sentence that he faced, and that failure was compounded by the lack of any document in the court file of which Eiland should be deemed to have notice that might have cured the trial court's defect. Eiland asserts that neither his attorney nor the prosecutor advised him of the post-release supervision term of his expected sentence, and his behavior upon being later advised of that term by prison authorities lends credibility to his claim. However, without fuller fact-finding proceedings, the Court can not and does not make a finding as to whether Eiland was made aware, by counsel or otherwise, of the consequences of his plea before he entered it. Moreover, in order to challenge on habeas corpus a guilty plea entered on advice of counsel, a petitioner must show that, but for the erroneous advice received, he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). The Court expresses no view on Eiland's claim that he can make such a showing. For these reasons, while the state court clearly failed to protect Eiland's due process rights, it cannot be determined with certainty on the present record that his plea was constitutionally invalid.
While Eiland has characterized his claim variously in different parts of his papers, his principal argument is that he has completed his sentence of imprisonment, which he argues is his only lawful sentence, and that he should therefore be released from custody for violation of post-release supervision, and freed of any further term of supervision. (e.g. 2d Am. Pet. ¶¶ 13-14; Traverse 1-2.) He has expressly argued, moreover, that the available state remedy, a motion under § 440.10, is not satisfactory, because it would have the effect of returning him to square one, to face trial on the underlying charge, or to renegotiate a plea. (Oct. 2003 Pet. ¶ 13; Resp. Mem. 20.) Such a remedy is unattractive to Eiland, because he does not wish to face trial, and because no more favorable plea is available to him, since the three-year sentence — accompanied by the supervised release term, which is mandatory under state law — is, as was represented to him and acknowledged by him at the time of his guilty plea, the lowest sentence available under state law. (Bernstein Decl., Exs. B and E.)
It is hardly clear, however, that Eiland would be entitled to any other or more desirable remedy, even if the Court were to reach the merits and determine that his constitutional rights had been violated. Eiland argues that he is currently being held by the State without any legal authority, since his sentence simply does not include a term of post-release supervision. But this argument is disingenuous. Since the sentence of post-release supervision was mandatory under state law, the fact that the judgment of conviction fails to include an explicit reference to it does not render Eiland subject to punishment without lawful authority. The term of supervised release is, by legislative command, a part of the judgment of conviction. Eiland's problem is not that supervised release was not part of his sentence; it is that he was never properly advised that it would be.
Alternatively, Eiland argues that to the extent he did not receive the sentence he thought he was receiving, he is entitled not merely to an opportunity to withdraw his plea, but to the benefit of his bargain. (See, e.g., Pet. ¶ 12(b)(4) ("unfullfilled [ sic] promise").) Ordinarily, as the Second Circuit has held, "the only remedies available for breach of a plea agreement are enforcement of the agreement or affording the defendant an opportunity to withdraw the plea." 1-95-CV-553-P1 v. 1-95-CV-443-D1, 75 F.3d 135, 136 (2d Cir. 1996). In the case of breach of a plea agreement by a state prosecutor, the Supreme Court on direct review has left the choice of remedies to the state courts, Santobello v. New York, 404 U.S. 257, 262-63 (1971), and the federal courts on habeas have done the same.See, e.g., McPherson v. Barksdale, 640 F.2d 780 (6th Cir. 1981). See also United States v. Bohn, 959 F.2d 389, 391 (2d Cir. 1992) (leaving choice of remedy to trial court in case of breach of agreement by a federal prosecutor).
However, where the sentence called for by the plea agreement is unlawful, courts have generally, and quite reasonably, held that the only available remedy is rescission of the agreement and withdrawal of the plea. United States v. Greatwalker, 285 F.3d 527 (8th Cir. 2002) (there can be no valid plea to a sentence that is less than the prescribed statutory minimum; even when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law, and any plea to such illegal sentence is void). See also Forbert v. State, 437 So.2d 1079 (Fla. 1983); Chae v. People, 780 P.2d 481 (Colo. 1989). To the extent that Eiland claims he bargained for no more than a three-year sentence, without a term of post-release supervision, such a sentence would have been illegal under New York law, and a federal court would have no authority to specifically enforce such a bargain. To the contrary, the weight of authority is that the choice of remedy for any violation of Eiland's rights would be left in the first instance to the state courts, and that under these circumstances, the most likely outcome — still assuming arguendo that a violation of Eiland's rights had been established — would be permission to withdraw his plea of guilty and exercise his right to a trial by jury.
Eiland argues that if this remedy were granted, any sentence greater than he now labors under would violate the Double Jeopardy Clause. (Oct. 2003 Pet. ¶ 13(a).) Since no such sentence has been imposed, this argument is premature. The point is that Eiland must pursue any claim that his plea was involuntary or that his attorney provided ineffective assistance in the state courts, and if he does so successfully, the Constitution demands no more than that he be permitted to withdraw his plea. The range of sentences to which he might be exposed if he went to trial on the original charges is not before this Court at this time.
Thus, even assuming that Eiland's habeas petition were properly before the Court, and even assuming that he could establish that his constitutional rights were violated in connection with his plea of guilty, he would not be entitled to immediate release, the remedy he seeks. It is up to Eiland whether to pursue such remedies as remain available to him in state court. His ability to seek relief in this Court is precluded by the lack of timeliness of his petition, and by his failure to exhaust an avenue of state relief that remains available to him.
CONCLUSION
Accordingly, the petition is dismissed as untimely, and for failure to exhaust state remedies. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.