The opinion of the court was delivered by: David G. Larimer, United States District Judge
Petitioner Eugene S. Hutchings ("Hutchings") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction based on a guilty plea in Monroe County Court on one count of Assault in the First Degree.
On the night of December 29, 1997, while visiting complainant Joseph Baker ("Baker") in his home, Hutchings stabbed Baker in the neck and face several times, nearly severing his carotid artery. Hutchings was indicted in Monroe County Court (Bristol, J.) on February 17, 1998, and charged with one count of Intentional Assault in the First Degree (Penal Law § 120.01(1)) and one count of Reckless Assault in the Second Degree (Penal Law § 120.05(4)).
A jury trial commenced a few months later on May 4, 1998, but it ended in a mistrial, on defendant's motion, due to an incident that occurred during voir dire. The next day, however, Hutchings appeared before Monroe County Court Judge William Bristol and pleaded guilty to assault in the first degree in satisfaction of the indictment. As part of the plea agreement, Judge Bristol agreed to sentence Hutchings to a term of ten years imprisonment. When Hutchings appeared for sentencing on May 22, 1998, he attempted to withdraw his guilty plea. Sent. Tr. at 2-3. Judge Bristol denied the motion and proceeded to conduct a sentencing hearing. That hearing was later adjourned for several weeks to June 2, 1998 for a predicate felony hearing since Hutchings had refused to admit his 1998 felony conviction of burglary in the first degree. At the hearing, Hutchings apparently had a change of heart and did admit that he had been previously convicted of a felony. Predicate Felony Hrg. Tr. at 4-5. At that time, Hutchings admitted to Judge Bristol his guilt on the first degree assault charge, and Judge Bristol sentenced Hutchings to the agreed-upon ten year sentence.
Hutchings appealed his conviction to the Appellate Division, Fourth Department on June 3, 1998, raising the same four issues that he now raises in this habeas petition: (1) his trial counsel was ineffective because he failed to make a timely motion pursuant to New York Criminal Procedure Law ("CPL") § 210.35 to have the indictment dismissed ("Claim One"); (2) the indictment was defective because Hutchings was denied his right to testify before the Grand Jury ("Claim Two"); (3) the trial court erroneously ruled on his Sandoval*fn1 motion ("Claim Three"); and (4) the trial court abused its discretion in declining to allow him to withdraw his guilty plea ("Claim Four").
The Appellate Division, Fourth Department unanimously affirmed his conviction, People v. Hutchings, 263 A.D.2d 965 (4th Dept. 1999), and the Court of Appeals denied leave to appeal, People v. Hutchings, 93 N.Y.2d 1044 (1999).
Hutchings filed a CPL § 440.10 motion to vacate his conviction on September 21, 2000. The sole ground alleged was that his trial counsel was ineffective for failing to move pursuant to CPL § 220.60(3) to withdraw Hutchings' guilty plea. The County Court denied the motion without opinion on October 26, 2000, and the Fourth Department denied permission to appeal on April 10, 2001. This habeas petition followed. For the reasons set forth below, Hutchings' § 2254 petition is dismissed.
Before seeking a writ of habeas corpus in federal court, Hutchings must have exhausted all available state remedies either on direct appeal or through a collateral attack of his conviction. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 115 S.Ct. 1436 (1995). The exhaustion of state remedies requirement means that Hutchings must have presented his constitutional claim to the highest state court from which a decision can be obtained. See, Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). To properly exhaust a claim, Hutchings must have fairly apprized the state court of the claims's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
Although respondent does not raise the failure to exhaust with regard to any of petitioner's claims, I believe that there is an exhaustion issue concerning Claim Three, that the trial court erred in ruling on Hutchings' Sandoval motion. I agree that there is no exhaustion issue as to the other claims, but there has been no exhaustion as to Claim Three.
Although Hutchings' appellate counsel raised the Sandoval argument in his brief to the Appellate Division, neither appellate counsel nor Hutchings raised this claim when seeking leave to appeal to the New York Court of Appeals. In appellate counsel's July 15, 1999 letter to the Court of Appeals, he states what "[t]he legal questions needing resolution are" and briefly addresses the bases for Claims One, Two and Four only. App. Counsel 7/15/99 Ltr. Req. for Lv. to Appeal, Resp't App. I at 86-87. Counsel closes the letter by stating: "For the reasons stated in the appellant's brief, appellant urges that leave to appeal be granted. Appellant specifically requests that every issue of law presented by the record in this case be considered." Id. Hutchings' follow-up pro se request, submitted August 9, 1999, discusses in detail his legal arguments corresponding to claims One, Two and Four and raises an additional ground for his ineffective assistance of counsel claim. However, Hutchings' pro se request makes no mention of the Sandoval claim. Pet'r. Pro Se Supp. Req. for Lv. to Appeal, Resp't App. K.
The Second Circuit's decision in Grey v. Hoke, 933 F.2d 117, is the starting point for the analysis of this issue. In Grey, the petitioner identified one claim in his leave-to-appeal letter and also attached his Appellate Division briefs, which raised three issues including the one specified in the letter. Id. at 120. The Second Circuit held that only the one claim which was expressly raised was properly exhausted, noting that "[t]he only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprize the court of the two claims." Id. The Second Circuit declined to impose upon the New York Court of Appeals "a duty to look for a needle in a paper haystack." Id. (citations omitted).
The Second Circuit revisited Grey in Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000). As in Grey, the petitioner in Jordan argued one of his claims in the application for leave to appeal, and "asked that he be given permission to appeal `for all these reasons and the reasons set forth in his Appellate Division briefs.'" Id. The court held that "arguing a single claim at length and making only passing reference to possible other ...