sufficient to fairly present constitutional issue to appellate court). In line with these cases, Kirsh claims that her reference to constitutional cases and to the lack of a record in this case, both at the hearing and in the papers submitted to the court, was sufficient fairly to present the issue to the Civil Court on the renewal motion and thereby to preserve the issue for appellate and federal habeas review. This argument, however, amounts to sophistry.
Courts have repeatedly stressed that a habeas petitioner must first present his constitutional claims to the state court in order "to provide an opportunity for that court to hear the claim." Daye, supra, 696 F.2d at 191; see also Picard, supra, 404 U.S. at 276-77. Kirsh cannot seriously contend that the Civil Court was given a fair opportunity to hear her constitutional claim when she told the judge at every turn that she was "withdrawing . . . the application . . . to reopen the substance of the contempt proceeding," R2.83; that she wanted the court to "reconsider the contempt sanction," Id. ; that "the only matter that is now in front of [the court is an] application for a modification of the terms of the contempt order," R2.11; and, when the due process issue was raised, that she did not "want to argue about [the lack of a record] because I'm asking your honor for mercy here." R2.24. Given all of these statements to the judge that she did not want to raise the constitutional issues at the renewal hearing, the mere fact that Kirsh mentioned the lack of a record during that hearing is insufficient fairly to present the issue to the Civil Court for determination. Since the constitutional issue was not properly presented at the renewal hearing, it was not preserved for appellate review, and the Appellate Term was correct in deciding that Kirsh procedurally defaulted on her constitutional claims.
Further reinforcing this view of the fair presentation issue is evidence that Kirsh's decision not to press the constitutional issue at the hearing was a tactical decision. In her briefs to this court, Kirsh discussed her arguments at the renewal hearing and explained:
In requesting "mercy" and in discussing other issues such as proportionality [of the punishment], we sought to indicate to the trial court that we were concerned about the result, not necessarily the reasoning to achieve that result; and we had no incentive, if the penalties were eliminated and the issue thereby mooted, to force the trial court explicitly to confront what we had learned was its manifestly momentous error of judicial conduct in failing to see to it that there was a record taken.
Petitioner's Supplemental Brief, at 16. This kind of deliberate decision not to press constitutional claims in state court for tactical reasons underlies the Supreme Court's adoption of the cause and prejudice standard. As the Court observed in McCleskey v. Zant, U.S. , 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991), "habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh." Id. at 1469. The exhaustion requirement, along with the cause and prejudice requirement for excusing procedural defaults, are designed to combat just this type of "sandbagging" by defendants. See Wainwright v. Sykes, 433 U.S. 72, 89-90, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Particularly in light of this policy concern, Kirsh cannot be considered to have "fairly presented" her due process claim to the trial court.
Since Kirsh cannot demonstrate cause for both state procedural defaults, she is barred from federal habeas review of her constitutional claim unless she can "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, supra, 111 S. Ct at 2565; see also Engle v. Isaac, 456 U.S. 107, 135, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). In order to demonstrate that a fundamental miscarriage of justice would result from failure to consider the merits of her constitutional claim, Kirsh must demonstrate her actual innocence. Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Kirsh has not attempted to meet this requirement, and the procedural bar to consideration of her habeas corpus petition therefore remains.
Since Kirsh procedurally defaulted on her constitutional claims in state court, and since she has not shown cause for that default or made any showing that failure to consider her claims would result in a fundamental miscarriage of justice, her petition for a writ of habeas corpus must be dismissed. The parties' cross motions for sanctions under Rule 11, F.R.Civ.P., are denied.
IT IS SO ORDERED.
Dated: New York, New York
March 24, 1992
Robert L. Carter