Magistrate that the petition should be dismissed because it
contained a mixture of exhausted and unexhausted claims. In
particular, respondent contended that grounds one and three,
voluntariness of the guilty plea and ineffective assistance of
appellate counsel, respectively, had not been exhausted.
Respondent conceded that petitioner's claim of ineffective
assistance of trial counsel had been exhausted.
The Magistrate agreed that petitioner's claim of ineffective
assistance of appellate counsel was not exhausted because he had
not filed a petition for a writ of error coram nobis as
required by Bachert. Therefore, she recommended that the
petition be dismissed pursuant to Rose v. Lundy, 455 U.S. 509,
102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it contained a
mixture of exhausted and unexhausted claims. See Report at 5-6.
After the Magistrate issued her report, she received
petitioner's Reply, which states that he had filed a petition for
a writ of error coram nobis. In addition, Assistant District
Attorney Terence J. Sweeney wrote to inform the Court that
petitioner had in fact filed a writ of error coram nobis with
respect to that claim. See Letter from Terence J. Sweeney to
Hon. John E. Sprizzo (May 12, 1989) ("Sweeney letter"). Thus,
respondent now concedes that this claim has been properly
There is some dispute, however, about whether the petitioner's
first claim, that his guilty plea was unknowingly and
involuntarily made, was exhausted. The Magistrate made a finding
that this claim had been exhausted. See Report at 5 n. 2. In
his letter, ADA Sweeney objected to this finding. See Sweeney
letter, supra. Petitioner has filed a response to these
objections. See Letter from Vernon Snype to Hon. John E.
Sprizzo (May 19, 1989); see also Reply. Therefore, the Court
will, as it must, review Respondent's objections de novo. See
28 U.S.C. § 636(b) (1982).
It is well settled that a state prisoner seeking federal habeas
corpus review of his conviction must first exhaust his available
state remedies. 28 U.S.C. § 2254(b)-(c) (1982); see Rose v.
Lundy, supra, 455 U.S. at 515-19, 102 S.Ct. at 1201-04; Daye v.
Attorney General, 696 F.2d 186, 190-92 (2d Cir. 1982) (en banc),
cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184
(1984). This doctrine has two prongs. First, it requires that a
habeas petitioner give the state courts "a fair opportunity to
pass upon his federal claim," Daye, 696 F.2d at 191, by
informing the state court of both the factual and legal basis for
his federal claim. Picard v. Connor, 404 U.S. 270, 275-77, 92
S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971); Daye, supra, 696 F.2d
at 191. Second, "the petitioner must have utilized all available
mechanisms to secure review" in the state courts of his federal
claims. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981);*fn3
see 28 U.S.C. § 2254(c). The Court concludes that the
Magistrate was correct in finding that petitioner has properly
exhausted his claim that his guilty plea was involuntarily and
unknowingly obtained because he was not properly informed of the
potential sentence that he might face if he were convicted after
Petitioner clearly raised this claim as a federal one in his
motion pursuant to N.Y. Crim.Proc.Law § 440.10 on January 24,
1986. He stated that his plea was obtained in violation of his
constitutional right to due process of law, see Affidavit in
Support of Motion to Vacate Judgment ¶ 1 (annexed to Response at
Ex. 2), and he cited cases employing federal constitutional
analysis. Id. at ¶¶ 4, 6; see Daye, 696 F.2d at 192-93. This
motion was denied by Justice Salman in March of 1986 and leave to
appeal to the Appellate Division was denied on June 24, 1986.
Respondent argues that this claim is not exhausted because
petitioner did not seek leave to appeal the Appellate Division's
to the New York Court of Appeals. See Sweeney letter, supra.
However, petitioner need not have sought leave to appeal to the
Court of Appeals because no appeal lies to the Court of Appeals
from an order of the Appellate Division denying leave to appeal.
Klein v. Harris, supra, 667 F.2d at 283-84 & n. 6 (citing
People v. Williams, 342 N.Y.S.2d 75, 76 (App. Div. 2d Dep't
1973)); see also Bellacosa, Practice Commentary to
N YCrim.Proc.Law § 450.15 (McKinney 1983). As the Second Circuit
stated in Klein, "once the Appellate Division denied
[petitioner] leave to appeal the denial of his section 440.10
motion, he had reached `the end of the road within the state
system.'" 667 F.2d at 284 (citations omitted).
In any event, the Court finds that this claim was properly
exhausted because petitioner fairly presented it to the New York
courts on his direct appeal in accordance with the standards for
fair presentation of a constitutional claim set forth in Daye v.
Attorney General, supra, 696 F.2d at 194.*fn4 Petitioner's
brief to the Appellate Division stated that the basis for his
claim that he should have been allowed to withdraw his guilty
plea and his claim of ineffective assistance of counsel was his
contention that he was misled about the severity of the sentence
he might have faced had he gone to trial. See Snype's Brief at
This clearly was sufficient to alert the state court to the
nature of plaintiff's federal constitutional claim. See Report
at 5 n. 2.*fn5 Indeed, a claim that a defendant who has pleaded
guilty was denied due process because he was not adequately
informed of the potential sentence that he faced is a common due
process claim, see, e.g., Hunter v. Fogg, 616 F.2d 55, 57 (2d
Cir. 1980); Williams v. Smith, 591 F.2d 169, 170 (2d Cir.),
cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289
(1979); Caputo v. Henderson, 541 F.2d 979 (2d Cir. 1976), and
is certainly "well within the mainstream of due process
adjudication." Daye, supra, 696 F.2d at 193 (quoting Johnson
v. Metz, 609 F.2d 1052, 1057 (2d Cir. 1979) (Newman, J.,
Respondent also argues, relying upon Teague v. Lane, ___ U.S.
___, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989), that even if
petitioner has exhausted his claims, the Court should find that
he is barred by procedural default. However, petitioner is not
barred by procedural default in this case because, unlike the
petitioner in Teague, he has clearly presented his claim to the
Appellate Division on direct appeal. The Court, therefore,
rejects this argument.*fn7
The Court finds that petitioner has exhausted all three claims
alleged in his petition for a writ of Habeas Corpus. In addition,
the Court finds that review of the merits of petitioner's claim
that his guilty plea was involutary and unknowing is not barred
by procedural default. Respondent is directed to respond to the
merits of the petition within thirty days of the date of this
opinion, at which time the petition will be referred once again
to Magistrate Roberts for a Report and Recommendation with
respect to the merits of petitioner's claims.
It is SO ORDERED.