The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Adam Sanchez seeks a writ of habeas corpus from his 1999 conviction in Supreme Court, New York County, for three counts of third degree criminal sale of a controlled substance and sentence to concurrent terms of five to ten years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4; Dkt. No. 4: State Br. at 1.) Sanchez's habeas petition claims that the trial court gave an erroneous presumption of innocence jury charge and a prejudicial illustration of his right to remain silent, depriving Sanchez of a fair trial. (Pet. ¶ 12(A).) Sanchez's reply to the State's opposition to his petition further claims that he was denied effective assistance because his trial counsel failed to preserve the jury charge claim for appeal and because his appellate counsel failed to argue that Sanchez's trial counsel was ineffective on those grounds. (Dkt. No. 11: Sanchez Reply Br. at 1-3.)
For the reasons set forth below, Sanchez's petition should be dismissed without prejudice for failure to exhaust state remedies with respect to his ineffective assistance claims.
Trial, Verdict, and Sentence
On August 20, 1999, Adam Sanchez was arrested after detectives observed him transacting three heroin sales. (E.g., Dkt. No. 6: Trial Transcript ["Tr."] 151-65; see generally Dkt. No. 3: Bernstein Aff. Ex. A: Sanchez 1st Dep't Br. at 3-6.) At trial, Sanchez's counsel did not object to the trial judge's preliminary instructions to the jury during voir dire and at the start of trial, nor to the final jury charge at the conclusion of trial. (See Tr. 18-20, 68-69, 127-30, 358-79.) Indeed, after the final jury charge, the judge asked the prosecutor and defense counsel if either had any "[r]equests, [or] exceptions," and both responded "[n]o." (Tr. 379.)
The jury found Sanchez guilty of all three counts of third degree criminal sale of a controlled substance. (Tr. 392-95.) At sentencing on December 20, 1999, Sanchez was adjudicated a predicate felon, based on a May 27, 1999 conviction of third degree criminal sale of a controlled substance (Sentencing Transcript ["S."] 2-4), and sentenced to concurrent terms of five to ten years imprisonment (S. 8).
Sanchez's Direct State Appeal
Represented by new counsel, Sanchez argued on appeal to the First Department that: "The cumulative effect of the court's erroneous presumption of innocence charge and prejudicial illustration of appellant's right to remain silent deprived appellant of a fair trial." (Dkt. No. 3: Bernstein Aff. Ex. A: Sanchez 1st Dep't Br. at 10; see also id. at 10-16.)*fn1 Sanchez's brief conceded that the jury instruction issue was unpreserved: "Even though trial counsel was remiss in not objecting to and thereby preserving the erroneous instructions and comments, the magnitude of the errors collectively, warrants reversal pursuant to this court's interest of justice jurisdiction." (Id. at 15-16.)
On November 1, 2001, the First Department affirmed Sanchez's conviction:
Defendant's challenges to the court's preliminary and
final instructions as to the presumption of innocence
and defendant's right to refrain from testifying are
unpreserved and we decline to review them in the
interest of justice. Were we to review these claims,
we would find that the court's instructions clearly
conveyed the appropriate legal principles. We note
specifically that language to the effect that
defendant was presumed innocent "until," or "unless
and until" the People had proved his guilt beyond a
reasonable doubt could not, in context, have been
interpreted by the jury as expressing the court's
expectation of a guilty verdict.
We perceive no basis for reduction of sentence.
People v. Sanchez, 288 A.D.2d 16, 16, 732 N.Y.S.2d 163, 163 (1st Dep't 2001) (citations omitted). On February 1, 2002, the Court of Appeals denied leave to appeal. People v. Sanchez, 97 N.Y.2d 733, 740 N.Y.S.2d 706 (2002).
Sanchez's Federal Habeas Petition
Sanchez's timely-filed federal habeas corpus petition raised a single claim, identical to the first argument in his brief to the First Department: that "[t]he cumulative effect of the trial court's erroneous presumption of innocence charge and prejudicial illustration of petitioner's right to remain silent deprived appellant of a fair trial." (Dkt. No. 1: Pet. ¶ 12(A).) In addition, Sanchez's reply to the State's opposition asserted that he was denied the effective assistance of trial counsel because his counsel failed to object to the jury instructions and thereby failed to preserve Sanchez's jury instruction claim for appeal. (Dkt. No. 11: Sanchez Reply Br. at 3.)*fn2 Sanchez's ...