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CHISHOLM v. HENDERSON

May 8, 1990

DEREK CHISHOLM, PETITIONER,
v.
ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY; ROBERT ABRAMS, ATTORNEY GENERAL, STATE OF NEW YORK; JOHN SANTUCCI, DISTRICT ATTORNEY, COUNTY OF QUEENS, RESPONDENTS.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM AND ORDER

Petitioner, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied.

FACTS

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 concurrently.

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

Petitioner now seeks a writ of habeas corpus on his first conviction, alleging: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) wrongful denial of an application for the assignment of substitute counsel; and (4) an excessive sentence. Respondents oppose the writ, arguing that petitioner has failed to exhaust state remedies on one of his claims.

DISCUSSION

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
  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 ...

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