Full opinion text
DECISION AND ORDER BIANCHINI, United States Magistrate Judge. I. Introduction Dennis Larweth (“Larweth” or “petitioner”) filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on August 6, 2001, in Cattaraugus County Court following a guilty plea to one charge of attempted assault in the first degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). II. Factual Background and Procedural History The conviction here at issue stems from the beating inflicted by Larweth upon his girlfriend, Carol Doak (“Doak” or “the vie-tim”), on February 28, 2001. On that date, Larweth entered Doak’s home and punched and kicked her repeatedly, primarily in the head and face. See Exhibit (“Ex.”) D at 6-7, Respondent’s Appendix of Exhibits (“Resp’t Ex.”). Doak sustained serious injuries, including a fractured maxillary sinus and orbital wall, a blow-out fracture of the orbital floor, a hematoma of the left adenoid and maxillary sinuses, and multiple bruises and abrasions. See Resp’t Ex. B at 47-48. Larweth was indicted on one count of first degree burglary (N.Y. Penal Law § 140.32(2)), a class B felony; and two counts of first degree assault (N.Y. Penal Law § 120.10(1), (4)), a class B felony. On June 18, 2001, petitioner accepted an offer to plead guilty to one count of attempted first degree assault in full satisfaction of the indictment in exchange for a waiver of his appellate rights and a sentencing cap of twelve years. See Resp’t Ex. D at 2-6. On August 1, 2001, the prosecutor filed its notice of intent to request that Larweth be sentenced as a second felony .offender. See Resp’t Ex. B at 73. Sentencing took place on August 6, 2001, and the trial court imposed the agreed-upon sentence of a determinate term of twelve years, in accordance with the prosecutor’s sentencing promise. See Resp’t Ex. E at 6. On August 9, 2001, Larweth filed a pro se motion to vacate his sentence pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.20, alleging that (1) his due process rights were violated at sentencing by “ ‘Jenna’s Law’, (post supervision) [sic]”; (2) his predicate felony status was obtained in violation of his constitutional rights; and (3) his guilty plea was involuntary. See Resp’t Ex. B at 122; see also Petitioner’s Traverse (“Trav.”) at 5, ¶ 11 (Dkt.# 10). The trial court denied the motion on September 7, 2001. See Resp’t Ex. B at 124-25. Leave to appeal the denial of this motion was denied by the Appellate Division. On September 30, 2001, the Appellate Division, Fourth Department, of the New York State Supreme Court denied Lar-weth’s application to proceed in forma pauperis because defense counsel had failed to file a notice of appeal. Thereafter, Larweth filed an application for permission to file a late appeal, which was granted. The Appellate Division directed new defense counsel to file and serve a late notice of appeal on or before January 21, 2001. On or about September 22, 2002, appellate counsel filed a brief on behalf of Larweth, arguing that (1) “[a]s [petitioner’s] plea bargain was not properly enforced, his waiver of his right to appeal is unenforceable and he must be allowed to withdraw his plea of guilty” or be excused from his appellate-rights waiver; (2) the plea colloquy did not establish the requisite element of a “dangerous instrument” for purposes of N.Y. Penal Law § 120.10(1) (assault with intent to cause serious physical injury by means of a deadly weapon or dangerous instrument); (3) petitioner’s plea was not knowing and voluntary because he was not informed of the five-year period of post-release supervision mandatorily added to his determinate twelve-year term of incarceration; (4) the trial court erred in sentencing petitioner as a predicate felon (second felony offender); and (5) his twelve-year determinate sentence was harsh and excessive. See Resp’t Ex. A. The People, in opposition, argued that as to his first claim regarding the performance of his plea bargain, his failure to move to withdraw the plea rendered the issue unpreserved and, in any event, the claim was without merit since the period of post-release supervision was not within the control of the sentencing court, the court did not violate its part of the plea bargain. Accordingly, the People argued, there was no basis to release Larweth from his agreed-upon waiver of his appellate rights. The People argued that the issue relating to factual insufficiency of the plea colloquy was encompassed within his valid waiver of his appellate rights. As to the claim that his plea was involuntary due to the trial court’s failure to inform him of the period of post-release supervision, the People asserted the lack of preservation based on petitioner’s failure to move to withdraw his plea, as well as the appellate rights waiver. The People further contended that petitioner was properly adjudicated as a second felony offender, and that his agreed-upon sentence was neither harsh nor excessive. See Resp’t Ex. F. The Appellate Division unanimously affirmed Larweth’s conviction on March 21, 2003. People v. Larweth, 303 A.D.2d 1029, 756 N.Y.S.2d 815 (App.Div. 4th Dept.2003); Resp’t Ex. G. Leave to appeal to the New York State Court of Appeals was denied. People v. Larweth, 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294 (N.Y.2003); Resp’t Ex. H. Larweth then moved, pro se, to vacate the judgment pursuant to C.P.L. § 440.10 on September 19, 2003, arguing that (1) trial counsel was ineffective because he “completely failed to advise defendant of post-release supervision; to the very contrary, defense counsel mis-advised defendant that he would receive an indeterminate sentence of 12 years at top, and his minimum jail time would be 4 to 12 years” and that (2) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal despite being requested to do so. See Resp’t Ex. I. The trial court denied the motion on October 21, 2003, stating that it did “not understand why failing to advise a pleading defendant of the period of post-release supervision after a determinate sentence is any different than advising a defendant of parole supervision after an indeterminate sentence.” Resp’t Ex. K at 2. The trial court noted that “some courts have apparently held that defendants must be. told of the parole supervision period after a determinate sentence is served,” it did “not see a distinction.” Id. at 3. Finally, the trial court stated that it was “unaware of any authority holding the failure to advise a defendant of a period of post-release supervision, even if that were the case, rises to the level of ineffective assistance of counsel.” Id. Accordingly, the trial court held, the C.P.L. § 440.10 motion was “in all respects denied.” Id. Petitioner sought leave to appeal the denial of the C.P.L. § 440.10 motion. See Resp’t Ex. L. The People opposed this application. See Resp’t Ex. L. This habeas petition followed in which Larweth claims the following grounds for relief, all of which were raised on direct appeal or in support of his collateral motions for vacatur: (1) the mandatory period of post-release supervision renders his plea bargain not properly enforceable because he cannot receive his bargained-for twelve-year sentence; (2) his plea colloquy did not establish the “dangerous instrument” element of the offense of attempted first degree assault with a deadly weapon or dangerous instrument; (3) his plea was not knowing and voluntary because the trial court erred in failing to inform him, prior to his plea, of the mandatory five-year period of post-release supervision to be added to his sentence; (4) the trial court erred in sentencing him as a predicate felon (second felony offender); (5) trial counsel was ineffective in failing to inform him that his sentence contained a mandatory five-year period of post-release supervision; (6) trial counsel was ineffective because he falsely represented that petitioner only would have to serve 4 years of an indeterminate sentence; and (7) trial counsel was ineffective in failing to move to withdraw the plea or to file a notice of appeal. See Petition (“Pet.”) at 7-8, and unnumbered page titled “Additional Grounds” (Dkt.# 1). Respondent concedes that all of the grounds raised in Larweth’s habeas petition are fully exhausted pursuant to 28 U.S.C. § 2254(b)(1). Respondent’s Memorandum of Law (“Resp’t Mem.”) at 4 (Dkt.# 8). For the reasons set forth below, Larweth’s petition for a writ of habeas corpus is granted in part and denied in part. III. Discussion A. Standard of Review The filing of Larweth’s petition postdates the amendment-of the federal habeas corpus statute on April 24, 1996, by the enactment of-the Anti-terrorism and Effective Death Penalty Act (“AEDPA”). Pursuant to AEDPA, when a state court has adjudicated a habeas petitioner’s claims on the merits, habeas relief may not be granted unless the state court’s holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or was based on unreasonable determination of the facts in light of the evidence presented in petitioner’s state court proceeding. See 28 U.S.C. § .2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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) (internal quotation marks omitted). B. Procedural Default Respondent contends that Larweth’s claim regarding the voluntariness of his guilty plea is procedurally defaulted under the “adequate and independent state ground” doctrine because he failed to properly preserve the claim for appeal by moving to withdraw the plea. On direct appeal, the appellate court held that “[b]e-cause defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground, he has not preserved his contention for our review[.]” People v. Larweth, 303 A.D.2d at 1030, 756 N.Y.S.2d 815 (citing People v. Perillo, 300 A.D.2d 1097, 751 N.Y.S.2d 897 (App.Div. 4th Dept.2002); People v. Moore, 300 A.D.2d 1085, 751 N.Y.S.2d 900 (App.Div. 4th Dept.2002); People v. Kazmirski, 299 A.D.2d 826, 749 N.Y.S.2d 194 (App.Div. 4th Dept.2002)). Respondent contends that the appellate court relied upon an adequate and independent state ground to dismiss the claim as procedurally barred, thereby precluding further federal habeas review of the claim by this Court. See Resp’t Mem. at 4-5 (Dkt.# 8). The Supreme Court has held that federal courts shall “not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted). “This rule applies whether the state law ground is substantive or procedural.” Id. (citations omitted). The independent and adequate state ground doctrine may bar federal habeas review “when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement” for in such cases “the state judgment rests on independent and adequate state procedural grounds.” Id. (citing, inter alia, Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Thus, an adequate and independent finding of procedural default precludes federal habe-as review of the federal claim, unless the habeas petitioner can show “cause” for the default and “prejudice” attributable thereto, Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or demonstrate that the failure to consider the federal claim on habeas will result in a “fundamental miscarriage of justice,’ ” id. at 495, 106 S.Ct. 2639 (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). The Court agrees with respondent that the state appellate court relied upon an “adequate and independent state ground” in rejecting Larweth’s contention regarding the voluntariness of his guilty plea. The procedural bar clearly was an “independent” ground since it was the sole basis for the state court’s decision. Furthermore, as discussed below, it was a fully “adequate” basis for the decision. “[A] procedural bar will be deemed ‘adequate’ only if it is based on a rule that is ‘firmly established and regularly followed’ by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). Whether application of the procedural rule is “ ‘firmly established and regularly followed’” must be judged in the context of “the specific circumstances presented in the case,” and “of the asserted state interest in applying the procedural rule in such circumstances.” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.2003) (quoting Lee v. Kemna, 534 U.S. 362, 386-87, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)). In New York, the “firmly established and regularly followed rule,” Lee, 534 U.S. at 386, 122 S.Ct. 877, for preserving a claim that a guilty plea was involuntarily entered requires a defendant to move to withdraw the plea or to vacate the judgment of conviction. See People v. Hilliard, 39 A.D.3d 1021, 832 N.Y.S.2d 461, 2007 WL 1147311, at *1 (App.Div.3d Dept. Apr. 19, 2007) (“[Djefendant’s assertion that his guilty plea was involuntarily entered is unpreserved for our review in light of his failure to move to withdraw the plea or vacate the judgment of conviction[.]”); People v. Smith, 34 A.D.3d 1127, 1127, 824 N.Y.S.2d 504 (App.Div.3d Dept.2006); People v. Peterson, 35 A.D.3d 1195, 1196, 825 N.Y.S.2d 622 (App.Div. 4th Dept.2006) (“Although the contention of defendant that his plea was not knowingly, voluntarily or intelligently entered survives the waiver of the right to appeal, by failing to move to withdraw his plea or to vacate the judgment, defendant failed to preserve that contention for our review[.]”); People v. Johnson, 25 A.D.3d 331, 331, 805 N.Y.S.2d 830 (App.Div. 1st Dept.2006) (“Since defendant did not move to withdraw his plea, his challenge to the plea’s voluntariness is unpreserved[.]”). As noted above, the procedural rule requiring a motion to withdraw the plea to preserve a claim of involuntariness constituted the appellate court’s sole basis for decision in Larweth’s case, and, as the foregoing cases make clear, compliance with the rule was demanded in the circumstances presented here. See id. Furthermore, Larweth completely failed to comply with the procedural rule. See id. Thus, the procedural bar relied upon by the appellate court in this case was “firmly established and regularly followed,” and therefore constitutes an adequate state ground barring review of the merits of Larweth’s claim. Accord, e.g., Antiqua v. Giambruno, No. 05 Civ. 2681 WHP/GWG, 2006 WL 800742, at *8 (S.D.N.Y. Mar. 30, 2006) (Report and Recommendation); Brea v. New York City Probation Dept., No. 03 Civ.4822(RJH)(GWG), 2004 WL 389011, *8 (S.D.N.Y. Mar. 3, 2004) (Report and Recommendation). The Court next must consider whether there exists “cause” for Larweth’s procedural default of this claim and, in addition, whether he will be suffer “prejudice” as a result of being precluded from asserting this claim on habeas review. To claim that attorney error excuses a procedural default, a habeas petitioner must either have properly presented and exhausted an ineffective assistance of counsel claim in the state courts, Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), or, if the ineffective assistance of counsel claim is itself procedurally barred, separately show that there is “cause” excusing said procedural default as well as prejudice resulting from the error, id. at 452-53, 120 S.Ct. 1587. Here, Larweth properly presented and exhausted his claim of ineffective assistance of counsel since he claimed in support of his C.P.L. § 440.10 motion that trial counsel was ineffective in failing to inform him that his sentence included a mandatory five-year period of post-release supervision. The issue becomes whether that omission amounts to the effective denial of representation to which Larweth is entitled under the Sixth Amendment of the Constitution. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court announced a two-part test for evaluating whether the assistance rendered by a petitioner’s attorney was ineffective: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Counsel’s performance is to be judged by an “objective” standard of “reasonableness,” id. at 688, 104 S.Ct. 2052, and “[j]udicial scrutiny of counsel’s performance must be highly deferential” with the reviewing court making “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time[,]” id. at 689, 104 S.Ct. 2052. Because there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” the petitioner must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (citation omitted); accord, e.g., Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir.2001). The second prong of the Strickland standard requires the petitioner to demonstrate that he was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In the context of a guilty plea, the “prejudice” requires petitioner to show that counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, the reviewing court must ask whether there is a “reasonable probability” that, without the mistakes made by counsel, the petitioner still would have elected to plead guilty rather than proceed to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Larweth states in his affidavit supporting his C.P.L. § 440.10 motion that “counsel failed to inform petitioner he would have to serve additional five years on top of twelve year promised sentence, in prison or on post supervision [sic].” Trav. at 14 (Dkt.# 10). However, Larweth neither recites facts or details of the meetings and conversations he had with his attorney to support his claim, nor does he provide an affidavit from his attorney describing the advice counsel did or did not give. Thus, all Larweth has offered is a conclusory, self-serving statement, which “shows” nothing, and indeed is belied by his sworn statements in open court during the plea colloquy that he wished to take advantage of the certainty offered by a plea agreement. His statements to the trial court clearly established that he understood the rights he was giving up and that he nevertheless wished to avail himself of the benefits offered by the plea agreement. Moreover, during the factual portion of the allocution, there was some discussion as to whether Larweth actually was wearing the work boots that the prosecution described as a “dangerous instrument” or whether he had been wearing tennis shoes at the time of the assault. When the trial judge commented that he “wouldn’t want to go to trial [and chance that a jury would not find] that tennis shoes weren’t a dangerous instrument if he kicked somebody in the face with them,” and asked Larweth if that was “one of the reasons that he was entering the plea to take advantage of the plea offer ... [and][t]ake the C [felony] rather than go to trial on the B [felony] ... [a]nd reduce your liability accordingly?” Larweth affirmatively responded, “Exactly, your Hon- or[,]” and “ExactlyU” and “Yes.” See Resp’t Ex. D at 5. As to the “prejudice” requirement, Lar-weth asserts that he “has suffered severe prejudice because he should have been full [sic] informed of all pluses and minuses of the agreed upon sentence[.]” Trav. at 14, Section III titled “Argument” (Dkt.# 10). With regard to whether the post-release supervision actually affected his decision to plead guilty, Larweth has provided nothing except his own equivocal statement that he “may not have pleaded guilty to any sentence beyond twelve years promised[.]” Id. (emphasis supplied). The Court finds it significant that Larweth has never stated that he would not have pleaded guilty, or even that he probably would not have pleaded guilty, had he known about the five-year period of post-release supervision. Not only are Larweth’s statements in support of his habeas petition wholly insufficient to establish that there is a “reasonable probability,” that “he would not have pleaded guilty and would have insisted on going to trial[,]” Hill, 474 U.S. at 58, 106 S.Ct. 366, they are belied by Larweth’s sworn averments to the trial court during his plea colloquy. See Resp’t Ex. D at 3-6. Had Larweth gone to trial and been convicted of three Class B felonies charged in the indictment (one count of first degree burglary and two counts of first degree assault), he faced three concurrent sentences of nine to twenty-five years in prison. N.Y. Penal Law § 70.06(3)(b); see also Resp’t Mem. at 16 (Dkt.# 8). Even if he were convicted only of the one count of attempted first degree assault to which he pleaded guilty, his sentence would have been the same-nine to twenty-five years. See id. On top of the nine to twenty-five years, Larweth then faced the mandatory period of post-release supervision of five years, unless the trial judge decided to reduce it to no less than two and one-half years, see N.Y. Penal Law § 70.45(2)— which was fairly unlikely, given Larweth’s extensive criminal history. The Court observes that given the evidence against him, it was unlikely that the jury would have acquitted him. Hence, pleading guilty definitely was to Larweth’s advantage. It is hard for this Court to believe that, in light of all the above factors pointing toward an unfavorable outcome, Larweth would have “insisted on going to trial.” In short, Lar-weth provides no support whatsoever for his ineffective assistance clam except his conclusory, self-serving statements. Accordingly, the Court finds Larweth has not met the rigorous standard under Strickland v. Washington and Hill v. Lockhart of demonstrating that defense counsel’s failure to inform him of the period of post-release supervision 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. See Shabazz v. Perlman, No. 04 Civ. 4355(LAP)(DFE), 2005 WL 2105533, *7 (S.D.N.Y. Sept. 1, 2005) (“As to the ‘prejudice’ requirement [of Strickland ], [petitioner] provides nothing except his own statement that he wouldn’t have pleaded guilty if he knew about supervised release. But I note that his exposure if he went to trial and were convicted — even if only of the single charge he pleaded guilty to — would have been a determinate sentence of up to 15 years (see Penal Law § 70.02(l)(b) and (3)(b)) ([Section] 265.03 is a Class C violent felony), plus the mandatory post release supervision of 5 years, unless the judge decided to reduce it to no less than 2]é years, Penal Law § 70.45(2). Given the evidence, it was unlikely that he might be acquitted. Hence pleading guilty was definitely to his advantage. It is hard to believe his self-serving protestation that he would have ‘insisted on going to trial.’ In short, [petitioner] provides no support at all for his ineffective assistance clam except his eonclusory, self-serving statements.”). Thus, this Court declines to grant habeas relief on Larweth’s claim that he was denied the effective assistance of counsel because his attorney failed to advise him of the mandatory term of post-release supervision. Therefore, his attorney’s alleged ineffectiveness in failing to inform him that his bargained-for sentence included a mandatory period of five-year period of post-release supervision was not ineffective assistance within the meaning of the Sixth Amendment sufficient to excuse the procedural default of his claim that his guilty plea was involuntary. Furthermore, Larweth cannot take advantage of the “fundamental miscarriage of justice” exception to the procedural default, which requires a showing 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986); accord, e.g., St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir.2004)). To establish actual innocence, Larweth must come forward with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial[,]” demonstrate that “in light of all th[is] evidence,” “it is more likely than not[,]” that “no reasonable juror” would have convicted him. Schlup v. Delo, 513 U.S. 298, 323, 327, 328, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quotation omitted); accord Bousley, 523 U.S. at 623, 118 S.Ct. 1604. Larweth has not come forward with any evidence that he is actually innocent of the crime to which he pleaded guilty. Habeas review of the claim therefore is unavailable due to the unexcused procedural default. Accordingly, it is dismissed on that basis. In any event, even if the Court were to consider the substance of the claim regarding the voluntariness of petitioner’s guilty plea, it would find it to be without merit. The “test for determining the [constitutional] validity of guilty pleas ... was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162(1970); accord, e.g., Kelleher v. Henderson, 531 F.2d 78, 81 (2d Cir.1976); Wilson v. McGinnis, 413 F.3d 196, 198-99 (2d Cir.2005). In assessing the constitutional validity of a state court guilty plea where the defendant has been given sentencing misinformation, the Second Circuit has explained that the test is “whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea.” Williams v. Smith, 591 F.2d 169, 172 (2d Cir.1979) (citing Caputo v. Henderson, 541 F.2d 979 (2d Cir.1976); Kelleher v. Henderson, 531 F.2d at 81). Addressing the first part of that test, it is undisputed that Larweth was not in fact aware that a mandatory period of five years of post-release supervision was going to be administratively added to his twelve-year sentence. However, based on all of the information in the record presently before it, and for all the reasons discussed elsewhere in this Decision and Order, the Court cannot find that had Larweth been provided with “accurate information” about the post-release supervision it would have made any difference whatever in his decision to plead guilty. See, e.g., Kelleher v. Henderson, 531 F.2d at 82. In particular, the Court notes that Larweth faced a potential twenty-five-year sentence under the class B felony charges in the original indictment, and respondent indicates that it has sealed information regarding petitioner’s criminal record which possibly could have allowed him to be sentenced as a persistent felony offender and receive an even longer sentence. See Resp’t Mem. at 16 & n. 6 (Dkt.# 8). Moreover, given the strength of the prosecution’s evidence against petitioner and the brutality of his assault on the victim, Larweth was not likely to prevail at a jury trial. In light of these circumstances, the Court cannot believe that Larweth would have rejected the plea deal offered by the prosecution. The Court is even more incredulous that he would have chosen to take his case to trial had he been told that his “actual sentence” would include a period of post-release supervision. This claim therefore lacks merit and does not provide a basis for habeas relief. C. Analysis of the Remaining Claims Raised in the Petition As bases for finding that his conviction was unconstitutionally obtained and that he is entitled to a writ of habeas corpus, Larweth asserts that the mandatory period of post-release supervision renders his plea bargain not properly enforceable because he cannot receive his bargained-for twelve-year sentence; his plea colloquy did not establish the “dangerous instrument” element of the offense of attempted first degree assault with a deadly weapon or dangerous instrument; the trial court erred in sentencing him as a predicate felon (second felony offender); and trial counsel was ineffective in failing to inform him that his sentence contained a mandatory five-year period of post-release supervision, falsely representing that petitioner only would have to serve four years of an indeterminate sentence, and failing to move to withdraw the plea or to file a notice of appeal. Ground One: The plea bargain was unenforceable because the trial court failed to inform petitioner of the period of post-release supervision. As his first ground for habeas relief, Larweth states as follows: Plea bargain was not properly enforced waiver unenforceable [sic], must be allowed to withdraw plea. This contention is the issue of unilateral imposition of an additional consequent [sic] of the sentence imposed by the Department of Correctional services which was not a part of, nor at any time discussed either during the plea agreement or imposition of the sentence. Pet. at 7, ¶ 22-A (Dkt.# 1). This is the only argument Larweth makes in support of this ground. Respondent has not specifically addressed this contention in his memorandum of law. This claim corresponds to the first point raised by appellate counsel on direct appeal, in which counsel argued that “[a]s Mr. Larweth’s plea bargain was not properly enforced, his waiver of his right to appeal is unenforceable and he must be allowed to withdraw his plea of guilty.” Resp’t Ex. A at 8. Apparently, the claim was in the nature of a request for specific performance. As a matter of both federal and state law, it is well settled that, when the prosecution breaches a plea agreement, a defendant’s remedy is either specific performance of the plea agreement or an opportunity to withdraw his guilty plea. United States v. Alexander, 869 F.2d 91, 94 (2d Cir.1989) (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Brody, 808 F.2d 944, 947 (2d Cir.1986); United States v. Abbamonte, 759 F.2d 1065,-1071-72 (2d Cir.1985)); see also People v. Auslander, 146 A.D.2d 936, 936, 536 N.Y.S.2d 914 (App.Div.3d Dept.1989) (citing People v. Schultz, 73 N.Y.2d 757, 758, 536 NY.S.2d 46, 532 N.E.2d 1274 (1998)). On Larweth’s appeal, appellate counsel argued that “specific performance of the bargained for sentence [wa]s not possible” because the “absence of ... post-release supervision [which was automatic and mandatory under N.Y. Penal Law § 70.45] would make the sentence illegal.” Resp’t Ex. A at 9. Thus, the remedy appellate counsel sought was to have Larweth relieved from having the appellate court “selectively enforce the other portions of the alleged bargain (i. e., ... the waiver of the right to appeal ...).” Id. The state appellate court, on direct appeal, only addressed this claim to the extent that it “conclude[d] that the valid waiver by defendant of the right to appeal encompasse[d] his contentions regarding the factual sufficiency of the plea allocution[.]” People v. Larweth, 303 A.D.2d at 1029, 756 N.Y.S.2d 815 (citations omitted). Reviewing petitioner’s appellate brief, it appears to this Court that appellate counsel conceded the period-of post-release supervision was required to have been part of Larweth’s sentence; thus, on direct appeal, he did not request, as a remedy, that Larweth’s sentence be modified. See Resp’t Ex. A at 8-10. The only time it appears Larweth sought to have his sentence vacated was in the context of his C.P.L. § 440.20 motion wherein he argued that the trial court erroneously failed to inform him of the mandatory additional period of post-release supervision. The Second Circuit, however, recently held in Earley v. Murray, 451 F.3d 71 (2d Cir.2006), that only the trial court may, under the constitution, announce a defendant’s sentence, and that it is contrary to clearly established Supreme Court precedent for a state court to refuse to vacate a defendant’s sentence where, as here, a period of post-release supervision has been administratively added to the sentence. See id. at 75, 76. In light of this, the Court believes that it must examine whether, construing the pro se petition with a tolerant eye, petitioner states a claim for relief under Earley v. Murray, 451 F.3d 71, supra. In Earley, petitioner pled guilty and was sentenced, pursuant to the plea agreement, to six years in prison; no term of post-release supervision following the six years of incarceration was included in the sentence announced in court by the judge, the written judgment, or the written order of commitment signed by the clerk of the court. 451 F.3d at 73. Unbeknownst to petitioner Earley, his counsel, the prosecutor, and the judge, New York had recently passed a statute imposing a mandatory term of post-release supervision that should have applied to Earley. See N.Y. Penal Law § 70.45(1) (“Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision.”). Because the parties were unaware of the new law, petitioner Earley was not informed of this mandatory provision during plea negotiations, the plea allo-cution, or at the time his six-year sentence was imposed. Id. Sometime between his sentencing in February 2000 and February 2002, the state department of correctional services administratively added a five-year term of post-release supervision to petitioner’s sentence without informing him. Id. After learning of this development and administratively exhausting his remedies, petitioner Earley filed a C.P.L. § 440.20 motion seeking to be re-sentenced according to the terms imposed by the sentencing judge, arguing that the modification to his sentence violated his due process rights and that he had received ineffective assistance of counsel. Id. While acknowledging that Earley should have been told about the post-release supervision, the state court denied the C.P.L. § 440.20 motion to vacate the sentence, finding that because the period of post-release supervision was mandatory under New York law, the request to eliminate it from petitioner’s sentence could not be granted. Id. Earley then filed a petition for a writ of habeas corpus in federal district court, raising both a due process claim relating to the period of post-release supervision and a claim of ineffective assistance of trial counsel, again asking for the period of post-release supervision to be removed from his sentence. Id. The district court denied the petition but granted a certificate of appeal-ability as to both claims. Id. In reviewing Earley’s petition, the Second Circuit determined that Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936), provided clearly established Supreme Court precedent supporting petitioner’s claim regarding the mandatory period of post-release supervision, administratively added to his sentence. Earley, 451 F.3d at 74. As the Earley court explained, Wampler stands for the basic precept that “ ‘[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court.... Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption.’ ” Id. (quoting Wampler, 298 U.S. at 464, 56 S.Ct. 760). Wampler also went on to articulate the following broader holding: “ ‘The judgment of the court establishes a defendant’s sentence, and that sentence may not be increased by an administrator’s amendment.’ ” Id. (quoting Wampler, 298 U.S. at 464, 56 S.Ct. 760) and citing Greene v. United States, 358 U.S. 326, 329, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959) (quoting Wam-pler’s assertion that “the only sentence known to the law is the sentence or judgment entered upon the records of the court”); Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir.1979) (“[T]he oral sentence pronounced by the sentencing judge constitutes the judgment, and anything inconsistent with the judgment which is included in a commitment order is a nullity.”). Thus, under Wampler’s authority, “[t]he only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect.” Id. Accordingly, the Second Circuit held that the state was only authorized to incarcerate Earley for six years and no more-the sentencing term announced by the trial court. Id. (citing Wampler, 298 U.S. at 465, 56 S.Ct. 760 (“The prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence.”) (citation and internal quotation marks omitted); United States v. A-Abras Inc., 185 F.3d 26, 29 (2d Cir.1999) (holding that the written judgment of commitment is simply evidence of the oral sentence)). The period of post-release supervision, which had not been imposed by the judge, was unlawful. Id. Because post-release supervision exposed Earley to the possibility of revocation and additional jail time, he illegally was subjected to further “custody.” Id. (citing Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that parole satisfies the “in custody” requirement of habeas petitions); Peck v. United States, 73 F.3d 1220, 1224 n. 5 (2d Cir.1995) (holding that supervised release satisfies the “in custody” requirement of habeas petitions)). The addition of a period of post-release supervision to Earley’s sentence by the state department of correctional services therefore was contrary to clearly established federal law as determined by the United States Supreme Court in Wampler. Id. at 76. The issue before this Court, then, is whether any of the grounds raised in Larweth’s pro se petition state a claim for relief under Earley v. Murray. Both the Supreme Court and Second Circuit clearly have confirmed that pro se litigants generally are entitled to have the courts liberally construe their pleadings, which should be read to raise the strongest arguments that they suggest. E.g., Green v. United States, 260 F.3d 78, 83 (2d Cir.2001) (citing, inter alia, Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (holding that the allegations in a pro se complaint are “h[e]ld to less stringent standards than formal pleadings drafted by lawyers”); Liriano v. United States, 95 F.3d 119, 122 (2d Cir.1996) (per curiam)); see also, e.g., Williams v. Kullman, 722 F.2d 1048, 1052 (2d Cir.1983). The Court has reviewed Larweth’s appellate brief, his pleadings in support of his collateral motions to vacate the judgment and sentence, his habeas petition, and his traverse of law in support of his habeas petition. The Court notes that in the context of the “specific performance” claim, appellate counsel argued that “the sentencing court never actually sentenced Mr. Larweth to a period of post-release supervision!.]” Resp’t Ex. A at 8. Appellate counsel further asserted that “post-release supervision is a significant, punitive component of defendant’s sentence ... [and] a direct consequence of defendant’s plea.” Resp’t Ex. A at 19 (quotation omitted; alteration in original). In addition, Lar-weth’s failure to be informed of the mandatory post-release supervision forms the basis for his procedurally defaulted claim that his plea was involuntary. Thus, even though Larweth did not explicitly ask for vacatur of his sentence on direct appeal or in his habeas petition, the mandatory period of post-release supervision, and the trial court’s failure to inform him of it, has been a significant issue for Larweth in the context of his post-judgment attacks on his conviction. The Court finds that the Second Circuit’s decision in Earley v. Murray controls on this point, since petitioner Earley, in his reply brief before the Second Circuit, asserted an argument based on specific performance of the plea agreement for which the defendant bargained. See, e.g., Reply Brief for Petitioner-Appellant, EARLEY v. MURRAY, No. 04-4098-pr, 2005 WL 5310411 (2d Cir. Nov. 21, 2005) (“In Santobello [v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)], the [Supreme] Court held that the State must determine the ‘ultimate relief based on ‘whether the circumstances of this case require only that there be specific performance of the agreement on the plea’ or withdrawal of the guilty plea.”) (quotation omitted); id. (“Where due process requires specific performance of a promised sentence, that should outweigh any consideration that such sentence is unauthorized by statute.”) (citation omitted); id. “(Moreover, as noted above, specific performance in this case of a six year prison sentence with no PRS [post-release supervision] would not truly be violative of New York’s statutory scheme.”). In light of the arguments presented by petitioner Earley on his appeal to the Second Circuit, and given the Second Circuit and the Supreme Court’s clear directives regarding the liberal construction to be afforded to pleadings of pro se litigants, the Court finds appropriate argument in Larweth’s papers attacking his sentence on the ground that a term of post-release supervision was illegally added to his sentence. This is sufficient to state a claim warranting habeas relief under Earley. Respondent does not dispute that Lar-weth was not informed by the trial court, the prosecutor, or defense counsel that his sentence included a mandatory additional five-year period of post-release supervision. When Larweth attacked the period of post-release supervision by means of a C.P.L. § 440.20 motion in 2001, the state court rejected the claim. See Trav. at 5, ¶ 11 (Dkt.# 10); see also Cattaraugus County Court Order Dated 10/21/03 Denying C.P.L. § 440.10 Motion (noting previous denial of petitioner’s C.P.L. § 440.20 motion), Resp’t Ex. M. Larweth’s case clearly is “on all fours” with Earley v. Murray and therefore, Larweth’s sentence was therefore never anything other than the twelve years of incarceration imposed on him by the judge at his sentencing hearing and recorded in his order of commitment. Thus, the period of post-release supervision added administratively is a “nullity.” Id. Under Earley, 451 F.3d at 76, the state court’s determination that the addition of a five-period of post-release supervision to Larweth’s sentence by the department of correctional services was permissible is contrary to clearly established federal law as determined by the United States Supreme Court in Hill v. United States ex rel. Wampler, 298 U.S. at 464, 56 S.Ct. 760. Accordingly, the writ must be granted on petitioner’s claim of specific performance. See Earley, 451 F.3d at 76. Ground Two: The plea allocution was factually insufficient. Larweth argues that the “facts elicited at petitioner’s plea allocution do not support [a] requisite element for conviction of attempted use [sic] of [a] dangerous instrument.” Trav. at 11 (Dkt.# 10). On direct appeal, the Appellate Division held that “the valid waiver by defendant of the right to appeal encompasses his contentions concerning the factual sufficiency of the plea allocutionf.]” People v. Larweth, 303 A.D.2d at 1029, 756 N.Y.S.2d 815 (citations omitted). Arguably, this holding reflects a reliance upon an adequate and independent state ground and operates to create a procedural bar to habeas review. See Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (holding that it will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the court’s decision); Acosta v. Giambruno, 326 F.Supp.2d 513, 522 (S.D.N.Y.2004) (“[T]he Court finds that [petitioner’s] affirmative waiver of his right to appeal also provides further independent and adequate state grounds to deny habeas relief. The record is clear that [petitioner] validly waived his right to appeal his sentence as a condition to his plea agreement, which is both independent of the federal question raised and adequate to support the judgment.”). Respondent, however, has not raised this as an affirmative defense and therefore has waived it. See Gray v. Netherlands 518 U.S. 152, 165-66, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Therefore, the Court will proceed to consider the merits of the claim. As respondent correctly notes, in order to determine whether the evidence on record is sufficient to support Larweth’s conviction pursuant to a guilty plea, the Court must apply the rigorous standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a petitioner is entitled to reversal of his conviction only if no rational trier of fact, drawing all inferences in favor of the prosecution, could have found proof of guilt beyond a reasonable doubt based on the evidence presented. Jackson, 443 U.S. at 319, 324, 99 S.Ct. 2781. Larweth here asserts only that his allocution “negated an essential element of the crime.” Pet., ¶ 22-B (Dkt.# 1). Larweth contends that because he never admitted that he kicked the victim while wearing work boots, the prosecution failed to prove the “dangerous implement” element of attempted first degree assault with a deadly weapon or dangerous instrument. See Trav. at 11 (Dkt.# 10). Larweth asserts that the “indictment charges petitioner used a pair of work boots, in a manner to inflict serious harm upon alleged victim.” Id. The Court has reviewed Indictment No. 01-47 which charged Larweth with the crimes at issue, and there is no mention of “work boots” therein. In fact, the indictment does not specify the type of dangerous instrument used. See Resp’t Ex. B. Thus, the Court rejects as factually unsupported petitioner’s contention that the prosecution charged him, in the indictment, with using work boots to inflict serious physical injury on the victim. The Court turns next to the sufficiency of the factual allocution that occurred during Larweth’s plea in Cattaraugus County Court: The Court: The second count of the indictment has been amended to accuse you of Attempted Assault in the First Degree. How do you plead to that charge? The Defendant: Guilty. The Court: Now, were you in Salaman-ca on February 28th of this year? The Defendant: Yes. The Court: Now, did you attempt to cause a serious physical injury to someone? The Defendant: Yes, your Honor. The Court: And who was that? The Defendant: Carol Doak? The Court: And did you attempt to do it by means of a deadly weapon or dangerous instrument? The Defendant: I hit her with my hands and I kicked her. If that’s a dangerous weapon, yes. The Court: There is a dispute — I issued a search warrant for the boots. The Defendant: But I didn’t wear the boots at the time of my arrest. I was wearing tennis sneakers and I had them brought up to jail to verify. I had the court — I went — on the 6th of March I had them brought up because I was due in city court on the 7th so I wanted to have a nice appearance and those were the clothes and they confiscated my boots. That wasn’t what I was wearing when I was arrested. Totally different clothes and sneakers. The Prosecutor: This is the attempt, your Honor. The Court: Do you have — so these things were locked up at the jail? The Defendant: Yes, they are. The Court: The boots were brought up? The Defendant: Yes. I can have the paperwork [in] a matter of minutes if they allow me. The Prosecutor: If this is an attempt, your Honor, if he wasn’t wearing them and the attempt comes to that.... The Court: Well, no, because you still need the attempt to raise or cause injury by means of an instrument. You guys have proof to the contrary? If he’s got proof the boots were brought to the jail after he’s incarcerated .... The Prosecutor: I did some research on this, your Honor, and even a handkerchief is a dangerous instrument. It depends on what’s used at the time. The Court: I wouldn’t want to go to trial that tennis shoes weren’t a dangerous instrument if he kicked somebody in the face with them. Notwithstanding that this is one of the reasons that you’re entering the plea[,] to take advantage of the plea offer? The Defendant: Exactly, your Honor. Resp’t Ex. D at 18-22. Contrary to Larweth’s contention, tennis shoes can be a “dangerous instrument” within the meaning of New York State Penal Law § 120.10(1) under which he was convicted. Section 120.10(1) provides that a person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to such person by means of a dangerous instrument. See N.Y. Penal Law § 120.10(1). A “dangerous instrument” includes any instrument “which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” N.Y. Penal Law § 10.00(13). As the New York Court of Appeals has noted, “any item, no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury.” People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30 (N.Y.1981). Thus, courts in New York have consistently adopted a “use-oriented approach” that focuses not on the inherent nature of the object but on the “vice” of its temporary use during the defendant’s commission of a crime. Id. (holding that rubber boots used to stomp upon a victim were dangerous instruments); accord, e.g., Garraway v. New York State Department of Corr. Servs., No. 96-2010, 104 F.3d 353, 1996 WL 670964, at *1 (2d Cir.1996) (recognizing and applying “use-oriented approach” articulated in People v. Carter); Ibarra v. Burge, No. 02CIV0825AGSAJP, 2002 WL 1467756, at *6 (S.D.N.Y. July 9, 2002) (same); see also People v. Ford, 60 A.D.2d 40, 400 N.Y.S.2d 35 (App.Div. 1st Dept. 1977) (holding that common handkerchief with which a victim was gagged and which led to his asphyxiation was a “dangerous instrument” within the meaning of the Penal Law), rev’d on other grounds by People v. Cwikla, 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070 (N.Y.1979); People v. Rumaner, 45 A.D.2d 290, 357 N.Y.S.2d 735 (App.Div.3d Dept.1974) (holding that leather boots used to kick a victim in the face were dangerous instruments); People v. Bouldin, 40 A.D.2d 1045, 338 N.Y.S.2d 686 (App.Div.3d Dept.1972) (finding that a spatula used to inflict a cut was dangerous instrument); see also People v. Vasquez, 88 N.Y.2d 561, 580, 647 N.Y.S.2d 697, 670 N.E.2d 1328 (N.Y.1996) (holding that wad of paper towels used to gag victim during the assault was dangerous instrument); Matter of Jason J., 187 A.D.2d 652, 653, 590 N.Y.S.2d 893 (App.Div.2d Dept.1992) (holding that “the shoe, sneaker, or boot with which the appellant kicked the complainant, under the circumstances, constituted a dangerous instrument”); People v. Chia Yen Yun, 35 A.D.3d 494, 494, 826 N.Y.S.2d 367 (App.Div.2d Dept.2006) (holding that pair of boots was a dangerous instrument); People v. Hansen, 203 A.D.2d 588, 588, 610 N.Y.S.2d 617 (App.Div.2d Dept.) (“holding that evidence that defendant kicked the victim while wearing sneakers sufficed to establish assault by means of a dangerous instrument”), lv. denied, 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760 (N.Y.1994); People v. O’Hara, 124 A.D.2d 895, 896, 508 N.Y.S.2d 348 (App.Div.3d Dept.1986) (holding that pair of leather, round-toed boots used to kick victim was a dangerous instruments). Of importance here is the fact that the prosecution did not need to prove beyond a reasonable doubt that petitioner was wearing work boots during the assault to which he pleaded guilty; the indictment did not specify what type of dangerous instrument allegedly was used by petitioner. Moreover, under New York’s use-oriented approach, either tennis shoes or work boots can be a “dangerous instrument” — what is determinative is how the defendant uses them during the assault. Here, Larweth’s sworn statements during his plea colloquy amply support a finding that Larweth used whatever type of footwear he was wearing to kick his victim in a violent manner, rendering the shoes or boots readily capable of causing serious physical injury. Therefore, the “dangerous instrument” element of the assault charge clearly was satisfied by petitioner’s factual allocution during his guilty plea. This claim does not provide a basis for habeas relief. Ground Four: Petitioner was improperly sentenced as a second felony offender. As his fourth ground for habeas relief, Larweth contends that the trial court erred in sentencing him as a second felony offender under New York Penal Law § 70.06. See Pet. at 7 (Dkt.# 1). Larweth states in the form habeas petition as follows: “The contention is the issue that the alleged predicate felonies (out of state, offenses were proper and within the meaning of CPL § 440.21(5)[sic]); and whether petitioner received proper notice prior to sentencing.” Pet. at 7, ¶ 22-D (Dkt.# 1). Respondent comments that it is “not clear” what Larweth “means by the first part of the [foregoing] statement,” Resp’t Mem. at 9 (citations omitted) (Dkt.# 8), and contends that, in any event, “sentencing terms generally are not cognizable constitutional issues for federal habeas review if the sentence falls within the statutory.range,” id. A federal court may entertain a petition for a writ of habeas corpus only to the extent that the prisoner alleges that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Claims arising out of a state court sentencing decision are thus not typically cognizable on federal habeas review. Haynes v. Butler, 825 F.2d 921, 923 (5th Cir.1987), cert. denied, 484 U.S. 1014, 108 S.Ct. 717, 98 L.Ed.2d 667 (1988); see also Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (reaffirming that errors of state law are not grounds for habeas review) (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir.1984). A claim attacking a state sentence of imprisonment generally is not cognizable on federal habeas review if the sentence is within the state’s statutorily established limits. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) (“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”) (citing Underwood v. Kelly, 692 F.Supp. 146 (E.D.N.Y.1988), aff'd mem., 875 F.2d 857 (2d Cir.1989)); see also Fielding v. LeFevre, 548 F.2d 1102, 1108 & n. 11 (2d Cir.1977); Williams v. Duckworth, 738 F.2d 828 (7th Cir.1984) (“As a general rule, a federal court will not review state sentencing determinations that fall within statutory limits.”) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637, (1983) (denying Eighth Amendment challenge to severity of sentence under recidivist statute); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, (1980) (rejecting Eighth Amendment challenge to severity of sentence under recidivist statute and explaining that a state is “entitled to make its own judgment” as to sentencing terms for repeat offenders, “subject only to those strictures of the Eighth Amendment that can be informed by objective factors”) (citing Coker v. Georgia, 433 U.S. at 592, 97 S.Ct. 2861)); United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (denying prisoner’s collateral attack on his sentence pursuant to 28 U.S.C. § 2255 where there was no claim of a constitutional violation; the sentence imposed was within the statutory limits; and there was no error of fact or law of the “fundamental” character that infected the proceeding and rendered it irregular and invalid). The Supreme Court has upheld recidivism statutes such as New York’s second felony statute “against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” Parke v. Raley, 506 U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (“States have a valid interest in deterring and segregating habitual criminals.”) (citing Rummel v. Estelle, 445 U.S. at 284, 100 S.Ct. 1133). “When enhanced punishment depends upon evidence of pri- or criminal convictions, defendants have a right to procedural due process.” Camillo v. Armontrout, 938 F.2d 879, 881 (8th Cir.1991) (holding that the procedures under which defendant was sentenced as a persistent offender did not comply with the requirements of due process where the state “wholly failed to demonstrate any evidence that defendant had notice of the proceeding or an opportunity to be present to challenge the evidence of prior convictions”) (citing Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 99 L.Ed. 4 (1954)). Due process requires that a defendant to be sentenced as a repeat offender “receive reasonable notice and an opportunity to be heard relative to the recidivist charge.” Oyler, 368 U.S. at 452, 82 S.Ct. 501; accord Camillo, 938 F.2d at 881. With the foregoing principles in mind, the Court has reviewed Larweth’s pro se habeas petition and pleadings submitted in the state courts below, mindful of the Supreme Court’s direction that pleadings drafted by pro se litigants should be held to less rigid standards than those drafted by attorneys. Haines v. Kerner, 404 U.S. at 520-21, 92 S.Ct. 594. A lenient reading of the petition indicates that Larweth is claiming that he was denied due process in connection with his adjudication as a second felony offender. When Larweth questions “whether petitioner received proper notice prior to sentencing,” see Pet. at 7 (Dkt.# 1), Larweth appears to be re-asserting his claim, raised on direct appeal, that the prosecutor violated C.P.L. § 400.21(2). Section 400.21(2), among other things, requires the prosecutor to file a statement prior to sentencing setting forth the date and place of each alleged predicate felony conviction. See N.Y.Crim.Proc. Law § 400.21(2). In this case, the prosecutor filed the statement and mailed a copy to defendant, but Larweth’s attorney claimed that he did not receive it prior to sentencing.