The opinion of the court was delivered by: DAVID G. LARIMER
This is a pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner, Jerome Williams, currently incarcerated at Southport Correctional Facility, claims that his conviction for third degree and seventh degree criminal possession of a controlled substance was obtained in violation of the Constitution.
Williams was convicted after a jury trial before Judge John D. Doyle, Monroe County Court, on December 18, 1990 and was sentenced to a term of incarceration of six to twelve years imprisonment on January 15, 1991. On March 13, 1992, his conviction was affirmed by the Supreme Court of the State of New York, Appellate Division, Fourth Department.
Leave to appeal to the New York State Court of Appeals was denied on May 19, 1992. On February 23, 1993, Williams' motion pursuant to N.Y. Crim. Proc. Law § 440.10 was denied by Judge Doyle. This petition was filed on April 2, 1992. For the reasons set forth, the petition is dismissed.
Williams was arrested on September 26, 1989 by Police Officer Michael Amory for selling to him twenty grams of a substance which was later identified as cocaine. On that day, Amory was working in an undercover capacity and had been assigned to attempt to purchase cocaine from the individuals residing at 15 Phelps Avenue in Rochester, New York.
As Amory attempted to enter the residence at 15 Phelps Avenue, he was approached by an unknown man who suggested that he knew a location where Amory could get drugs of a higher quality than at Phelps Avenue. Amory followed the man to an area known as "the Hole," which was a large vacant lot behind the buildings on Lake Avenue.
Once at the Hole, the individual called to Williams, who was located at an upstairs window in one of the buildings. Williams came down and then proceeded to sell Amory twenty grams of cocaine for $ 20.00. Amory paid Williams and left with the cocaine to rendezvous with the other members of the undercover team.
Shortly thereafter, Amory returned to the Hole with Police Office Frank Alvarado. When Amory and Alvarado confronted Williams and attempted to place him under arrest, Williams fled. Amory reached for Williams but was only able to grab his coat. Williams fled without the coat but, eventually, after a prolonged chase, he was apprehended.
A search of Williams' coat revealed nineteen more bags of cocaine. Williams was charged with criminal possession of a controlled substance in the third degree in violation of N.Y. Penal Law § 220.16(1) for his sale to Amory and Criminal Possession of a Controlled Substance in the Seventh Degree in violation of N.Y. Penal Law § 220.03 for possessing the nineteen bags of cocaine.
I. Exhaustion of State Remedies
A state prisoner seeking federal habeas review of his conviction must first exhaust his state court remedies as to his federal constitutional claims. Rose v. Lundy, 455 U.S. 509, 518-19, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); McGann v. New York, 870 F.2d 908, 910 (2d Cir. 1989). A claim is deemed to be exhausted if it is fairly presented to the highest court of the state. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye v. Attorney General of N.Y., 696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984).
Williams' claim that his conviction was obtained by corrupt police officers was not raised on direct appeal. It was raised in Williams' motion to vacate his conviction made in Monroe County Court pursuant to N.Y. Crim. Proc. Law § 440.10. This motion was denied but it was never appealed. By failing to appeal the denial of his § 440.10 motion, Williams has not exhausted his state remedies ...