The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Pro se petitioner, Thomas Irving, seeks a writ of habeas corpus to set aside a judgment of conviction entered against him by the Supreme Court of Suffolk County (Jaspan, J.) after a jury trial, on December 3, 1981. Irving was convicted of Criminal Possession and Sale of a Controlled Substance in the Second Degree. He was sentenced to concurrent indeterminate terms of incarceration for three years to life.
The Appellate Division, Second Department, unanimously affirmed Irving's conviction on February 22, 1983. Leave to appeal to the New York Court of Appeals was denied on March 30, 1983. Irving's subsequent coram nobis application to vacate his conviction pursuant to N.Y. Crim. Proc. Law 440.10 was denied on July 25, 1983. Irving has not challenged that order.
Irving sets forth four grounds in support of his contention that he was deprived of due process and a fair trial. He claims (1) that he was incompetent to stand trial and was denied a full opportunity to challenge the results of examining psychiatrists; (2) that there was insufficient evidence to establish his guilt beyond a reasonable doubt; (3) that the prosecutor's inflammatory opening statement deprived him of a fair trial; and (4) that the trial judge improperly intervened in the proceedings, thus bolstering the People's case.
A petition for a writ of habeas corpus will only be granted if the petitioner has exhausted all of his state remedies. 28 U.S.C. § 2254(b) and (c).
The exhaustion doctrine provides that, in the interests of both comity and expeditious federal review, the state courts must be afforded an adequate opportunity to pass on the federal claims with which petitioner seeks to upset the state conviction. Daye v. Attorney General of the State of New York, 696 F.2d 184, 190-91 (2d Cir. 1982). Under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), a habeas petition must be dismissed if it contains any unexhausted claim. 455 U.S. at 522.
To be considered exhausted, a claim must not only have been "fairly presented" to the state court,
but it must also have been presented "to the highest state court from which a decision can be had." Daye, 696 F.2d at 190 n.3 (citation omitted). It should be noted, however, that "a petitioner need not give the state court system more than one full opportunity to rule on his claims; if he has presented his claims to the highest state court on direct appeal he need not also seek state collateral relief." Id. at 190-91 n.3 (citations omitted).
Of petitioner's four claims, grounds three and four were raised on direct appeal to the appellate division where his conviction was unanimously affirmed. Leave to appeal to the New York Court of Appeals was subsequently denied. Thus, petitioner has satisfied, albeit marginally,
the exhaustion requirement with respect to grounds three and four.
Petitioner's first and second grounds, however, were not asserted on his direct appeal. "A petitioner who has failed to exhaust state remedies by pursuing a direct appeal must utilize available state methods for collaterally attacking his state conviction. Klein v. Harris, 667 F.2d [274, 282-83 (2d Cir. 1981)]; see Johnson v. Metz, 609 F.2d 1052, 1055-56 (2d Cir. 1979)." Hill v. Snow, 590 F. Supp. 1157, 1159 (S.D.N.Y. 1984). Petitioner did collaterally attack his conviction by filing a coram nobis application pursuant to N.Y. Crim. Proc. Law § 440.10. However, although the first ground of the instant petition was asserted as part of the coram nobis application, the second ground was not. Thus, as it is apparent that petitioner never asserted his second claim to the state courts, this claim must be considered unexhausted. Moreover, petitioner did not appeal the denial of his coram nobis application alleging "[i]t was futile." Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, P11(e). When the relief sought by the collateral attack is denied, petitioner must "employ[ ] all the state appellate procedures available for review of such denial" in order to satisfy the exhaustion requirement. Klein v. Harris, 667 F.2d at 283 (citations omitted). Accordingly, as petitioner did not appeal the denial of his collateral attack, his first claim must also be considered unexhausted.
In sum, the petition contains both unexhausted and exhausted claims. Under Rose v. Lundy, 455 U.S. at 522, the petition must be dismissed in its entirety.