The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, pro se, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons discussed below, the petition
Petitioner was convicted on May 13, 1986 of robbery in the
first degree and robbery in the second degree in the New York
Supreme Court, Queens County. Following the jury's verdict of
guilty on both charges, petitioner was sentenced to serve a
term of 8 1/3 years to 25 years on the first charge, and 5 to
15 years on the second. Both sentences were to run
On February 11, 1987, petitioner was found guilty of robbery
in the first degree in a wholly independent proceeding
involving a separate crime. Following that jury's verdict,
petitioner was sentenced to serve 8 1/3 to 25 years. This
sentence was to run consecutively to his first sentence.
Petitioner, however, has appealed the second conviction, and
that appeal is still pending in the Appellate Division.*fn1
A state prisoner's application for a writ of habeas corpus
may not be granted by a district court until "it appears that
the applicant has exhausted the remedies available in the
courts of the state." 28 U.S.C. § 2254(b).
An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,
within the meaning of this section, if he has the
right under the law of the State to raise, by any
available procedure, the question presented.
Id. at § 2254(c); see Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Boothe v.
Superintendent, 656 F.2d 27, 31 (2d Cir. 1981). Respondents
argue that the federal claim of prosecutorial misconduct has
never been presented to the state courts.
The issue of whether a federal claim was "fairly presented"
to the state courts arose in Daye v. Attorney General of New
York, 696 F.2d 186 (2d Cir. 1982), cert. denied, 464 U.S. 1048,
104 S.Ct. 723, 79 L.Ed.2d 184 (1984). Daye enumerated four
alternative ways by which a defendant may properly alert a
state court to his federal claim:
(A) reliance on pertinent federal cases employing
(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 ...