The opinion of the court was delivered by: Denise Cote, United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Dean Wright ("Wright") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") on February 11, 2002. By Order of March 11, 2002, the petition was referred to Magistrate Judge George A. Yanthis for a Report and Recommendation ("Report"). By his Report of December 11, 2002, Judge Yanthis recommends that Wright's petition be denied. Wright has submitted objections to the Report. For the reasons that follow, Wright's petition is denied.
Wright's petition arises from an incident that occurred while he was already incarcerated, an incident which led to his conviction as a second felony offender. In 1997, Wright was serving a sentence of twenty-five years' to life imprisonment at the Sullivan Correctional Facility, pursuant to his conviction for murder in September 1994. On June 2, 1997, Wright set off a metal detector when returning from the prison recreation yard. The subsequent strip search in a private room was videotaped. During the course of the search, but before the discovery of any contraband, one of the officers asked Wright, "Why is it that some days you clear the machine and some days you don't?" Wright replied, "It's the weather." The search revealed a razor blade concealed in Wright's buttocks.
Wright was convicted of "promoting" prison contraband in the first degree and criminal possession of a weapon in the third degree on December 16, 1997. On appeal to the Appellate Division, Third Department, this conviction was reversed due a violation of the trial court's Sandoval ruling. See People v. Wright, 690 N.Y.S.2d 286, 288 (3d Dep't 1999). At Wright's second trial, Wright moved to bar the introduction of the statement described above. The trial court viewed the videotape and ruled the statement voluntary, having not been part of any custodial interrogation and as part of the res gestae of the incident before the defendant was charged with any crime. Wright was convicted on June 23, 1999, of promoting prison contraband, and sentenced on August 25, to a term of three and one half years' to seven years' imprisonment, to run consecutively to the term of imprisonment he was serving. He was acquitted of criminal possession of a weapon in the third degree.
On appeal, the Third Department affirmed. See People v. Wright, 726 N.Y.S.2d 484 (3rd Dep't 2001). The only issue raised on appeal was the People's alleged violation of C.P.L. § 710.30, which the Appellate Division deemed was "not implicated where the defendant has actual notice of the contested statement where, as here, the evidence was introduced at a prior trial." Id. (citation omitted). Leave to appeal to the New York Court of Appeals was denied on July 26, 2001.
Wright's habeas petition raises a single ground for relief. He argues that the statement described above was uttered in the course of a custodial interrogation, and thus its introduction violated his Fifth Amendment rights. In his brief Report, Judge Yanthis did not address whether this claim was properly exhausted, but recommended its dismissal on the merits on the ground that any error in the introduction of this statement was harmless in light of the evidence against Wright. In his objections to the Report, Wright contends that the admission was not harmless since the jury may have considered it when weighing the credibility of his trial testimony that he had not set off the metal detector.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Wright's claim of a Miranda violation is unexhausted. 28 U.S.C. § 2254(b) requires that a habeas petitioner exhaust all available state remedies for the asserted violation of his federal rights. See Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). Any issue regarding the admissibility of the statement had to be raised on direct appeal. As it was not, this claim is now procedurally barred.
Wright has not shown cause for and prejudice from this failure to exhaust or the existence of a fundamental miscarriage of justice. See, e.g., Strogov v. New York, 191 F.3d 188, 193 (2d Cir. 1999). While a habeas court cannot grant relief based on unexhausted claims, it may dismiss unexhausted claims on their merits. See 28 U.S.C. § 2254(b)(2); Aparicio, 269 F.3d at 91 n. 5.
The colloquy during the strip search may constitute custodial interrogation. See Alexander v. State of Connecticut, 917 F.2d 747, 758 (2d Cir. 1990); United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987). It is unnecessary to decide whether Wright was entitled to Miranda warnings before the exchange, however, since, as the Report concludes, the admission of this statement was harmless error. "On habeas review, courts apply a test for harmless error that looks to whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Drake v. L.A. Portuondo, 321 F.3d 338, 347 (2d Cir. 2003); (citing Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).*fn1 Given the videotape evidence of Wright's concealed possession of the razor blade on his person, Wright's brief reference to the weather could not have had a "substantial [or] injurious . . . influence" on his conviction. It is noteworthy that he was acquitted of the charge of criminal possession of a weapon in the third degree.
The Recommendation of Magistrate Judge Yanthis is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.