The opinion of the court was delivered by: WARD
Petitioner Roberto de la Cruz seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. De la Cruz asserts three grounds in support of the instant petition. The Court has examined both the instant petition and the papers from de la Cruz's direct appeal of his conviction in the New York state courts. For the reasons hereinafter stated, the Court concludes that de la Cruz presented all three claims raised in the instant petition to the state courts, and that he therefore has exhausted available state judicial remedies with regard to the petition as a whole. Consequently, the instant petition in its present form may be addressed on the merits.
Petitioner challenges a judgment entered May 20, 1982 on a jury verdict by the Supreme Court of New York, New York County (Atlas, J.) on indictment # 3141/77, filed April 28, 1978. De la Cruz was convicted of one count of Murder in the Second Degree, see N.Y. Penal Law § 125.25(2), and one count of Criminal Possession of a Weapon in the Second Degree, see N.Y. Penal Law § 265.03. Petitioner was sentenced to concurrent terms of imprisonment of from twenty years to life on the murder count and from five years to fifteen years on the weapon possession count. The Appellate Division of the New York Supreme Court, First Department, unanimously affirmed petitioner's conviction without opinion on June 11, 1985. On October 16, 1985, the New York Court of Appeals denied de la Cruz leave to appeal. 66 N.Y.2d 762, 497 N.Y.S.2d 1036, 488 N.E.2d 122 (N.Y. 1985).
In January, 1986, de la Cruz filed the instant petition in the district court for the Western District of New York, repeating the three claims he previously raised on direct appeal. Upon motion of the Attorney General of the State of New York, pursuant to 28 U.S.C. § 2241(d), the petition was transferred to the Southern District of New York.
As noted above, petitioner argues three grounds in support of the instant petition. As Ground One, petitioner contends that the admission of statements allegedly elicited by a jailhouse informant who, petitioner avers, had a prior arrangement with a district attorney, denied him his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. Petitioner next asserts that the trial judge improperly allowed two prosecution witnesses who had been shown a photographic lineup without notice to defense counsel to make an in-court identification of the defendant. As Ground Two, de la Cruz contends that the trial court's admission of that identification, absent notice at the time of the photographic showing, denied him his right to seek suppression of the identification and hence violated his right to due process under the Fourteenth Amendment. Finally, as Ground Three, de la Cruz argues that trial court's refusal to admit evidence that the chief prosecution witness recently fabricated his testimony that he saw de la Cruz at the scene of the crime denied him due process.
On direct appeal of his conviction, petitioner raised these identical claims. In this Court he relies on the same brief submitted by the Legal Aid Society for his direct appeal to the Appellate Division. Respondents nonetheless contend that petitioner has not exhausted Grounds Two and Three inasmuch as he did not couch those claims "in federal constitutional terms when raised before the state courts" and indeed that they "are not raised in federal constitutional terms now." Respondents' Memorandum of Law in Support of Motion to Dismiss Writ of Habeas Corpus at 18.
Applications for habeas corpus relief may not be addressed on the merits by a federal court until the petitioner has exhausted available state court remedies. See Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). The requirement that a person in state custody must exhaust his state remedies as a predicate to instituting an application for federal habeas relief is codified at 28 U.S.C. § 2254(b). In relevant part, the section provides:
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. . . .
"Mixed" petitions, those containing both exhausted and unexhausted claims, must be dismissed in their entirety. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). A petitioner who has brought such a mixed petition must either abandon the unexhausted claims or return to the state courts to present them adequately before proceeding in federal court.
The Second Circuit Court of Appeals has defined what constitutes "exhaustion" in the context of federal habeas corpus petitions.
The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court.
Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citations omitted). In Daye, the Second Circuit held that a claim my be viewed as having been fairly presented to the state courts "even without citing chapter and verse ...