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December 2, 1986

JAMES GANDIA, Petitioner,
ROBERT HOKE, Superintendent of Eastern Correctional Facility, Respondent

The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 I. Introduction

 Petitioner James Gandia was convicted of murder in the. second degree and robbery in the first degree in a jury trial in the Supreme Court of the State of New York, County of Richmond. He was sentenced to an indeterminate term of twenty-three years to life in prison. The judgment of conviction was affirmed without opinion by the Appellate Division of the Supreme Court, Second Department. Leave to appeal to the New York Court of Appeals was denied. In his current petition for a writ of habeas corpus, 28 U.S.C. § 2254, Gandia seeks to have his conviction vacated and to be released from state custody unless the State of New York affords him an immediate retrial.

 Gandia's habeas petition rests on the contention that he was deprived of his fifth amendment privilege against self-incrimination when authorities questioned him about the death of Pablo LaTorre, whose body was found on August 11, 1978. Specifically, Gandia argues that the interrogation violated Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and that it was therefore error for the state court to deny his motion to suppress a statement he signed early on the morning of September 5, 1978. The suppression motion was denied after a "Huntley hearing," see People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965), upon a finding that Gandia waived his Miranda rights.

 The State maintains that Gandia's petition should be dismissed because he failed to exhaust the remedies available in state court. See 28 U.S.C. § 2254(c). The State adds that, if this court reaches the merits, it should deny the petition on the ground that Gandia has presented no convincing reason to overturn the state court's finding that the September 5 statement was made voluntarily. See id. § 2254(d); Alexander v. Smith, 582 F.2d 212 (2d Cir.), cert. denied, 439 U.S. 990, 58 L. Ed. 2d 664, 99 S. Ct. 589 (1978).

 II. Exhaustion of State Remedies

 It has long been settled "that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus." Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); accord, e.g., Harris v. Scully, 779 F.2d 875, 878 (2d Cir. 1985). Under Picard, the petitioner must "provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim," Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (per curiam) (quoting Picard, 404 U.S. at 276-77); "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made," id. (citations omitted).

 The leading exhaustion case in this circuit is Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984). Daye held that the petitioner "must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Id. at 191.

 Specifically, he must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim.

 Likewise, the petitioner must have placed before the state court essentially the same legal doctrine he asserts in his federal petition. The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court.

 Id. at 191-92 (citations and footnote omitted); accord Matusiak v. Kelly, 786 F.2d 536, 542 (2d Cir.) (petitioner must present both essential facts of his claim and legal basis for the claim to state court), cert. dismissed, 479 U.S. 805, 93 L. Ed. 2d 172107 S. Ct. 248 (1986).

 Daye enumerated four "ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution." 696 F.2d 186 at 194. They are:

 (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

 Id.; accord Jackson v. Scully, 781 F.2d 291, 294-95 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984).

 In support of his contention that his Miranda rights were violated, Gandia cited to the appellate division the case of Stumes v. Solem, 511 F. Supp. 1312 (D.S.D. 1981), rev'd, 671 F.2d 1150 (8th Cir. 1982), rev'd, 465 U.S. 638, 79 L. Ed. 2d 579, 104 S. Ct. 1338 (1984), decision on remand, 752 F.2d 317 (8th Cir.), cert. denied, 471 U.S. 1067, 85 L. Ed. 2d 502, 105 S. Ct. 2145 (1985). The appellate brief cited only the district court opinion in Stumes ; that case's subsequent history had yet to be played out when the brief was filed in October 1981. The discussion of Stumes, however, in a point of the brief entitled "The Statements Taken from Defendant were not Voluntary," could not have left the state court in much doubt as to what Gandia was arguing. In particular, the district court's opinion in Stumes discussed and quoted at length from Michigan v. Mosley, supra. See Stumes, 511 F. Supp. at 1323-24. At a minimum, Gandia's reliance on Stumes constituted "reliance on pertinent federal cases employing constitutional analysis," Daye, supra, 696 F.2d at 194. It is insignificant that Gandia cites different cases now than he did in state court, because the legal basis of his claim remains the same. See Harris, supra, 779 F.2d at 878. Nor is there any doubt that the factual premises posited here were relied upon in state court as well.

 Moreover, in Daye, the court of appeals observed:

 A number of legal theories may be advanced as to why a confession was not voluntary. Yet all that is needed to alert the state courts to the constitutional nature of the claim is the exposition of the material facts and the assertion that the confession was not voluntary.

 696 F.2d at 192 n.4. Gandia easily satisfies this lenient standard. Nor is this a case in which the relevant citation to Stumes was hidden among numerous other citations. See Petrucelli, supra, 735 F.2d at 689. Finally, there is no requirement that Gandia seek state collateral relief in order to satisfy the exhaustion requirement. Irving v. Reid, 624 F. Supp. 787, 789 (S.D.N.Y. 1985) (citing Daye, supra, 696 F.2d at 190-91 n.3). For the foregoing ...

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