Can the Court Grant Habeas Corpus Relief Where the Defendant Was Not a Persistent Violent Felony Offender ?

Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000), the Second Circuit affirmed the district court's grant of habeas corpus relief where trial counsel failed to determine in the course of plea negotiations that defendant was a not persistent violent felony offender, but only a second violent felony offender. Mask is factually distinguishable from defendant's case in a number of respects. First, in Mask, defendant's true predicate status was fairly apparent from the NYSIS sheet. Mask had not been sentenced on his first violent felony conviction before he was sentenced on the second, as required by the predicate offender statute. See P.L. 70.08 and 70.04. This fact is readily determinable from the face of the listed convictions; to uncover it does not require questioning the actions of two courts in prior cases and cross-referencing defendant's date of birth. Second, according to the district court's finding in Mask, had the parties discovered the error, they likely would have reached a lower, favorable plea agreement. For reasons stated at length elsewhere in this opinion, the possibility of such an agreement in this case was remote. In any event, this court is not obligated to follow Mask. In the state prosecution underlying the habeas corpus petition, the Appellate Division, First Department affirmed defendant's judgment of conviction, finding that, "although during plea negotiations, defense counsel, the prosecutor, and the court all labored under the mistaken belief that defendant was a mandatory persistent violent felony offender, this mistake was not such as to deprive defendant of effective assistance of counsel. People v. Mack a/ka Mask, 223 A.D.2d 383, 384 (1st Dep't 1996). The court also found that there was no reasonable probability that defendant would have accepted a more favorable plea had the mistake been found, in view of defendant's reported protestations of innocence. Id.