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July 1, 1997

DAVID EDKIN, Petitioner,
BRIAN D. TRAVIS, Chairman, NYS Division of Parole, Respondent, and JAMES T. HAYDEN, Intervenor.

The opinion of the court was delivered by: LARIMER

 Petitioner, David Edkin ("Edkin"), filed a pro se petition for a writ of habeas corpus, pursuant to 28 U. S. C. § 2254. Edkin claims that his convictions for rape and endangering the welfare of a child were obtained in violation of his constitutional rights. For the reasons that follow, Edkin's petition is dismissed.


 On August 27, 1993, after a jury trial in Chemung County Court, Edkin was convicted of rape in the third degree and endangering the welfare of a child. Edkin received concurrent sentences of one to four years on the rape charge and one year on the endangerment charge.

 The Appellate Division, Third Department, affirmed the convictions on December 29, 1994. People v. Edkin, 210 A.D.2d 808, 621 N.Y.S.2d 395 (3d Dep't 1994). On April 13, 1995, the New York State Court of Appeals denied leave to appeal. People v. Edkin, 85 N.Y.2d 937, 627 N.Y.S.2d 999, 651 N.E.2d 924 (1995). Edkin filed the instant habeas corpus petition on April 26, 1996. Subsequently, Edkin was released on parole. This Court retains jurisdiction over Edkin's habeas corpus petition because he satisfied the "in custody" requirement at the time the petition was filed. Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).

 In his petition, Edkin argues that he "was denied Due Process and Equal Protection of Law when the fundamental right to a Fair Trial was abrogated as a direct result of the cumulative effect of multiple errors occurring before, at and during the trial." Habeas Corpus Petition at 5. Specifically, Edkin claims: (1) the prosecution failed to disclose certain particulars of the offense charged in the first count of the indictment, thereby denying Edkin a fair trial; (2) the prosecution withheld Brady material by not disclosing the completely contradictory versions of the alleged rape; (3) the victim's testimony at trial regarding the alleged rape constituted a complete change in the prosecution's theory of the case; (4) the victim's trial testimony was incredible as a matter of law; (5) the trial court abused its discretion when it did not allow defense counsel to recall the victim for additional cross-examination; and (6) the trial court committed reversible error in permitting several witnesses to testify about prejudicial statements Edkin made to them, which were admitted to show Edkin's state of the mind.

 Edkin also advanced these six arguments in his state court appeals. Respondent maintains, however, that Edkin failed to alert the state courts to the federal nature of his claims, and, therefore, his petition should be dismissed.


 A. Exhaustion of Remedies

 A court may not review an application for a writ of habeas corpus unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U. S. C. § 2254 (b)(1)(A). To fulfill this exhaustion requirement, the petitioner must have fairly presented the substance of all of his federal constitutional claims to the highest state court. Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995). Essentially, the state court must have been aware that the petitioner was raising federal constitutional claims and must have been apprised of both the factual and legal bases of those claims. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991).

 "The ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (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 constitutional litigation." Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982).

  In the instant case, I find that Edkin exhausted his available state court remedies only in regard to his Brady claim. Edkin's mere mention of the term Brady, in reference to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)--a pertinent federal case employing constitutional analysis--was sufficient to alert the state court to the federal constitutional nature of this claim. See Brown v. Williams, 820 F. Supp. 64, 68 (W.D.N.Y 1993).

 Edkin, however, has not exhausted his five remaining claims. Edkin never fairly presented the federal constitutional nature of these claims to the state courts. In support of his appeal, Edkin, who was represented by counsel, neither relied on nor cited any federal or state cases employing constitutional analysis, other than Brady. Further, the allegations in these remaining claims do not call to mind any specific rights protected by the Constitution, nor do they allege a fact pattern well within the mainstream of constitutional litigation. Although Edkin made reference in his appellate brief to "denial of a fair trial," such a sweeping assertion is insufficient to alert a state court that a federal constitutional claim is being raised. Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984); Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982). In short, Edkin did not identify any constitutional basis for these claims.

 Failure to exhaust even some of the claims advanced in a habeas corpus petition is generally grounds for dismissing the entire petition. *fn1" Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). This leaves the petitioner with the choice of returning to state court to exhaust his claims or amending or resubmitting his habeas petition to present only the exhausted claims. Id. When it is clear, however, that the state court ...

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