The opinion of the court was delivered by: PECK
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN E. SPRIZZO, United States District Judge:
Petitioner Frank Gibriano seeks a writ of habeas corpus, alleging that: (1) his conviction was obtained by the failure of the prosecution to disclose exculpatory evidence and/or Rosario material, (2) the grand and petit jury were unconstitutionally selected or impaneled, and (3) he received ineffective assistance of counsel by reason of his counsel's failure to interview certain witnesses. (Petition, dated 1/12/95, at 5-6.) Petitioner Gibriano also has requested leave to amend his Petition to include a fourth ground, alleging denial of his right to a speedy trial. I grant Gibriano's request and deem his Petition to be so amended. However, for the reasons set forth below, I recommend that his habeas petition be denied for failure to exhaust his state court remedies.
On January 28, 1992, petitioner Frank Gibriano was convicted for criminal sale of a controlled substance in the third degree (Penal Law § 220.39(1)) and sentenced to 4 1/2 to 9 years imprisonment. (Petition at 1; Government Brief at 1.)
Gibriano appealed to the Appellate Division, First Department, alleging that he was illegally convicted in violation of his right to a speedy trial under N.Y. CPL § 30.30. (Petition at 3, P 9; Government Brief at 3; Olson Aff. Ex. B.) By Order dated June 24, 1994, the Appellate Division affirmed Gibriano's conviction without opinion. People v. Gibriano, 205 A.D.2d 1038, 614 N.Y.S.2d 96 (1st Dep't 1994). On November 22, 1994, the Court of Appeals denied his application for leave to appeal. People v. Gibriano, 84 N.Y.2d 935, 621 N.Y.S.2d 532, 645 N.E.2d 1232 (1994).
Gibriano claims that on May 2, 1992, he made a motion in the Supreme Court, New York County, pursuant to N.Y. CPL § 440.10,
to set aside his conviction on the grounds of violations of due process and ineffective assistance of counsel. (Petition at 3, P 11.) According to Gibriano, that motion was denied on January 11, 1993. (Id.) The New York County District Attorney's Office advises that they have no record of the motion being made or of its denial. (See Olson Aff. P 8.) Assuming that the motion was made and denied, however, it is undisputed that Gibriano did not seek leave to appeal the denial of his § 440.10 motion, allegedly because he thought it might delay his speedy trial direct appeal, which he felt was sound. (See Petition at 4, P 11(c)-(d).)
GIBRIANO'S HABEAS PETITION MUST BE DISMISSED BECAUSE HE HAS FAILED TO EXHAUST HIS STATE REMEDIES
Because Gibriano has failed to exhaust his state court remedies with respect to all of the grounds of his federal habeas petition, the Court must dismiss his entire Petition.
A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b).
While Section 2254 does not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of total exhaustion in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The Supreme Court held:
Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.
Id. at 510, 102 S. Ct. at 1199.
The Supreme Court explained that the complete "exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S. Ct. at 1203. "A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-19, 102 S. Ct. at 1203. The Court further noted that the total exhaustion rule will not impair the prisoner's interest in obtaining speedy ...