The opinion of the court was delivered by: LARIMER
Petitioner, Ivan Jordan ("Jordan"), who is currently in custody at Ogdensburg Correctional Facility, filed a pro se petition for a writ of habeas corpus, pursuant to 28 U. S. C. § 2254. Jordan claims that his convictions for reckless endangerment and criminal possession of a weapon were obtained in violation of his constitutional rights. For the reasons that follow, Jordan's petition is dismissed.
Jordan pleaded guilty to reckless endangerment in the first degree and criminal possession of a weapon in the fourth degree. These charges stemmed from a January 1, 1994 incident in which Jordan fired shots from a rifle at a house located in the City of Rochester. On March 2, 1995, Jordan received concurrent sentences of two to four years on the endangerment charge and one year on the weapon charge.
Jordan claims that he mailed a notice of appeal from the Monroe County Jail to the Appellate Division, Fourth Department in March 1995. The Fourth Department had no record of receiving Jordan's notice of appeal. Further, and more importantly, Jordan did not timely file a notice of appeal with the Monroe County Clerk's Office and then serve it on the District Attorney, as required by Criminal Procedure Law ("CPL") § 460.10.
On April 28, 1995, Jordan filed a motion, pursuant to CPL § 460.30, for an extension of time in which to file an appeal. While this motion was pending, Jordan also filed a motion to vacate judgment, pursuant to CPL § 440.10, alleging: (1) illegal detention; (2) ineffective assistance of counsel; (3) lack of probable cause; (4) illegal search and seizure; and (5) false imprisonment. The Monroe County Court denied this motion on June 2, 1995, pursuant to CPL § 440.10(2)(b), on the ground that the issues raised were matters of record that may be raised on appeal if Jordan's motion for an extension of time was granted.
On June 9, 1995, the Appellate Division, Fourth Department, denied Jordan's motion for an extension of time in which to file an appeal.
Jordan applied to the New York Court of Appeals for a certificate to appeal, pursuant to CPL § 450.90. However, because the Fourth Department's order was not appealable, his application was dismissed on August 10, 1995.
On October 27, 1995, Jordan filed another motion to vacate, pursuant to CPL § 440.10, alleging that his conviction was obtained: (1) by the Monroe County Grand Jury based on perjured testimony; (2) by the prosecutor's knowing use of false and/or perjured testimony; (3) by improper and prejudicial conduct not appearing on the record, which was considered by the Monroe County Grand Jury and the Monroe County Court; and (4) by violating plaintiff's constitutional and statutory rights. The Monroe County Court denied the motion on November 20, 1995, pursuant to CPL § 440.10(2)(c), on the ground that Jordan failed to raise an issue that could not have been raised on timely appeal.
Jordan did not seek leave to appeal the denial of either of his § 440.10 motions nor did he move for an extension of time in which to take an appeal.
Jordan filed the instant habeas corpus petition on December 18, 1995, alleging: (1) unlawful arrest without probable cause; (2) impermissibly suggestive police line-up; (3) illegal search and seizure of his car without a search warrant; (4) impermissible police interrogation in violation of his Fifth and Sixth Amendment right to counsel; (5) denial of his right to cross-examine witnesses; (6) prosecutor's knowing use of false and/or perjured testimony; and (7) ineffective assistance of counsel.
A federal court may not review an application for a writ of habeas corpus unless the petitioner has exhausted his state remedies. 28 U. S. C. § 2254(b)(1)(A). Essentially, 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). This requirement is premised upon principles of federalism and comity and affords state courts an initial opportunity to resolve alleged violations of their inmates' federal rights. Nichols v. Kelly, 923 F. Supp. 420, 423 (W.D.N.Y. 1996).
"Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Finally, a fundamental miscarriage of justice is established by showing that a constitutional violation "has probably ...