The opinion of the court was delivered by: GRUBIN
REPORT AND RECOMMENDATION TO THE HONORABLE JOHN G. KOELTL
SHARON E. GRUBIN, United States Magistrate Judge:
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment rendered on September 4, 1984 in the New York State Supreme Court, New York County, convicting him after a jury trial of one count each of criminal possession of a controlled substance in the first degree and criminally using drug paraphernalia in the second degree. See N.Y. Penal Law §§ 220.21, 220.50(2). As discussed below, because the petition presents both exhausted and unexhausted claims, it should be dismissed at this time without prejudice to its being refiled.
Viewing the facts as we must in a light favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986), the evidence at trial established that on September 8, 1983, shortly after 6:00 p.m., two police officers, responding to a report that someone in Room 307 at the West Park Hotel at 308 West 58th Street in Manhattan was breaking things in that room, knocked on the door and identified themselves several times as officers. Petitioner, wearing only a towel and clutching a shoulder bag by the strap, opened the door. The officers saw that the furniture, appliances and fixtures in the room had been smashed and strewn around the room. Entering the room, they asked petitioner to calm down and to put the bag down. Petitioner refused, screamed that they would have to shoot him to get the bag, challenged them to take it from him, and then began to swing it violently at them. After a struggle, the officers wrestled Petitioner to the floor, handcuffed his hands behind his back, and took the bag from him. This shoulder bag, weighing between ten and fifteen pounds, contained, among other things, over 1 1/2 pounds of 76 percent pure cocaine contained in two plastic bags and a metal can, a roll of plastic sandwich bags, a balance scale capable of weighing quantities up to two grams, a jar of non-narcotic powder and a plastic strainer. A police expert in the field of narcotics investigation testified that the amount and purity of the cocaine found in the bag was inconsistent with only personal use and that the purpose of the equipment found in the bag was to mix and distribute the cocaine.
Petitioner appealed his conviction through counsel to the New York State Supreme Court, Appellate Division, First Department, on the grounds that (1) the summary denial of his omnibus motion to suppress physical evidence violated his rights under the Fourteenth Amendment and (2) he was denied a fair trial by (a) the admission of the expert testimony and (b) prosecutor's comments on summation concerning the resale value of the cocaine seized. In a supplemental brief submitted pro se, petitioner also argued that he was denied a fair trial by the trial court's failure to give the jury a charge on intoxication. The Appellate Division affirmed the conviction without opinion on June 18, 1987, People v. Garcia, 131 A.D.2d 981, 516 N.Y.S.2d 567 (1st Dep't), and the New York State Court of Appeals denied leave to appeal on October 2, 1987, People v. Garcia, 70 N.Y.2d 799, 522 N.Y.S.2d 117.
On October 6, 1989 petitioner pro se applied to the Appellate Division for a writ of error coram nobis on the ground that he was denied effective assistance of appellate counsel by appellate counsel's failure to raise the following claims, which "founded on the face of the trial record... should have [been] briefed and presented. . .before this Court on direct appeal" (p. 3): (1) ineffective assistance of trial counsel based on trial counsel's failure to raise, or to secure evidence that would have enabled him to raise, the defense of lack of criminal responsibility by reason of mental disease or defect: (2) prosecutorial misconduct based on the prosecution's alleged failure to provide the defense with exculpatory evidence which would have shown he was not criminally responsible: report(s) that petitioner contends would have been prepared by medical personnel at Bellevue Hospital, where he was taken for a physical examination shortly after his arrest, and the names of potential witnesses at Bellevue; and (3) denial of a fair trial based on the trial court's failure to order discovery of these presumed report(s) and its admission of a police officer's testimony that petitioner appeared to be "high." In its brief in response to the application, the state argued that an application for a writ of error coram nobis was not an appropriate procedure by which to raise, for the first time, a claim of ineffective assistance of trial counsel which petitioner should have raised by means of a motion to vacate his judgment pursuant to N.Y. Crim. Proc. Law § 440.10 and that insofar as some of petitioner's claims of ineffective assistance of trial counsel rested on factual assertions outside the trial record, appellate counsel could not be faulted for not raising them on appeal. The state further argued that, in any event, petitioner's arguments concerning claims that should have been raised by trial and appellate counsel were meritless. In an unreported order on January 23, 1990, the Appellate Division simply denied his application "without prejudice to the filing of a motion pursuant to CPL 440.10 in the trial court."
On March 16, 1990 petitioner pro se moved the trial court to vacate his judgment. Petitioner's affidavit in support of his motion largely tracked his affidavit in support of his application for a writ of error coram nobis. Thus, the framework for his argument in support of his § 440.10 motion generally remained a claim of ineffective assistance of appellate counsel, although his papers do seem also to have been claiming ineffective assistance of trial counsel directly. Petitioner argued, as he had in his coram nobis application, that "the following points are founded on the face of the trial records so that appellate counsel ... should have briefed and represented the points before the Court on direct appeal" (p. 5) and, for the most part, enumerated the same alleged instances of ineffectiveness as set forth in the coram nobis application. By Decision and Order of April 12, 1991, Justice Rose L. Rubin denied petitioner's motion, which she construed to allege "that both counsel at trial and counsel on appeal provided ineffective assistance." With respect to the claim of ineffective assistance of trial counsel, she found that it was procedurally barred because "all of the issues recited by defendant are matters of record which were raised or should have been raised on appeal." With respect to petitioner's "additional claim of ineffective assistance of appellate counsel," citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987), she ruled that "this court lacks jurisdiction to review [it]." On October 3, 1991 the Appellate Division denied leave to appeal this ruling. People v. Garcia, 1991 N.Y. App. Div. LEXIS 12945 (1st Dep't).
This petition, liberally construed, presents seven grounds for relief:
(1) prosecutorial misconduct: the prosecution failed to disclose the alleged exculpatory evidence from Bellevue Hospital;
(3) denial of effective assistance of appellate counsel: appellate counsel (a) failed to present "colorable issues" he brought to her attention (ineffective assistance of trial counsel and prosecutorial misconduct in failing to produce the alleged reports), and instead made "spurious" Fourth Amendment arguments;
(4) denial of a fair trial by the court: the trial court refused requested discovery of medical reports, but then allowed testimony and a comment by the ...