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August 11, 1997

CORINNE JOHNSON, Petitioner, against STATE OF NEW YORK, Respondent.

The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Pro se Petitioner, Corinne Johnson, brings the above captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent opposes the petition. For the reasons set forth below, the petition is dismissed with prejudice.


 Petitioner was convicted, after a jury trial, in Supreme Court, Suffolk County, of criminal possession of stolen property in the third degree, on July 21, 1993, and sentenced to five years probation. The Appellate Division, Second Department, affirmed the conviction by a decision and order dated November 27, 1995. The New York Court of Appeals denied leave to appeal by order dated December 14, 1995. Prior to jury selection in the state court, Petitioner brought a motion to have a hearing as to the fairness of the jury panel. The trial judge, J. Vaughn, denied the motion in a decision dated January 8, 1990. After her conviction, Petitioner raised two claims on appeal to the Appellate Division, namely that the trial judge erred in issuing an Allen charge, see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), and that the State failed to prove Petitioner's guilt beyond a reasonable doubt. The Appellate Division, Second Department, held that the verdict was not against the weight of the evidence and that Petitioner's challenge to the courts use of the Allen charge was unpreserved for appellate review, thus the Appellate Division declined to review the challenge.

 Petitioner subsequently filed the present habeas corpus petition on four grounds, first, that the panel of jurors represented one ethnic group, second, that a conflict of interest existed between a juror and the prosecution, third, that the prosecution committed misconduct, and lastly, that the judge coerced the jury to come to a guilty verdict.


 A. The "In Custody" Requirement

 In addition to addressing the individual claims by Petitioner, the state contends that Petitioner is not entitled to relief under 28 U.S.C. § 2254 because she is on probation and not in custody. It is axiomatic that a District Court can entertain an application for a writ of habeas corpus only on the ground that Petitioner is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). Petitioner was sentenced to five years probation. The State contends that since the Petitioner is not incarcerated, she is not sufficiently "in custody" to be eligible for relief under § 2254.

 The Supreme Court of the United States, in Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963), held that a Petitioner for a writ of habeas corpus currently on parole met the "in custody" requirement of the habeas corpus statute. The Court held, "what matters is that [parole] significantly restrain[s] Petitioner's liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ." Id. at 243. Probation, like parole, subjects the person to certain restrictions that limits their freedom, which other citizens are not subject to. Also, both parole and probation put the person at risk of future incarceration. In fact, the only reported Second Circuit case to address the issue found no distinction between parole and probation for purposes of the "in custody" requirement. United States v. Shelly, 430 F.2d 215, 216 n.3 (1970). Hence, this Court finds that there is "no material difference between probation and parole in applying the 'in custody' requirement of § 2254." Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988).

 Furthermore, all of the other circuits that have addressed this issue have held that a probationary sentence does satisfy the "in custody" requirement of § 2254. See Krantz v. Briggs, 983 F.2d 961 (9th Cir. 1993); Olson v. Hart, 965 F.2d 940 (10th Cir. 1992); Barry v. Brower, 864 F.2d 294 (3d Cir. 1988); Birdsell v. Alabama, 834 F.2d 920 (11th Cir. 1987); Tiitsman v. Black, 536 F.2d 678 (6th Cir. 1976). Although the Shelly case involved a case under 28 U.S.C. § 2241, this court holds that a probationary sentence satisfies the "in custody" prerequisite of § 2254, due to the restrictions a probationary sentence puts on a person's freedoms and the risk of future incarceration imposed onto the person.

 B. The "Exhaustion of Remedies" Requirement

 A Petitioner for a writ of habeas corpus must have "exhausted the remedies available in the courts of the state, or [shown] that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner," 28 U.S.C. § 2254, before a federal court can grant habeas corpus relief. See Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 190-191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Moreover, the exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the highest state court. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam); Daye, 696 F.2d at 191. To have fairly presented a federal claim to the state courts, the Petitioner must have informed the state court of both the factual and legal premises of the claim asserted in the federal court. See Picard, 404 U.S. at 276-277; Daye, 696 F.2d at 191-94.

 "However, if the Petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted." Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436, 131 L. Ed. 2d 316 (1995) (citations omitted). Furthermore, "for exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989)). "In such a case, Petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)," Grey, 933 F.2d at 120 (citations omitted), and the claims are considered exhausted. See Bossett, 41 F.3d at 828. ...

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