The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Howard Wallace petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on three counts of robbery in the first degree following a jury trial in New York State Supreme Court, New York County. The Petition raises five claims, two of which are unexhausted. Mr. Wallace requests that this Court stay the instant proceeding so he may present his unexhausted claims to the New York State courts. Because I find the two unexhausted claims to be plainly without merit, the petitioner's request is denied.
In the spring of 1993, Mr. Wallace committed several robberies while armed with a knife. One of the victims died of cardiac arrest shortly after Mr. Wallace robbed him. The prosecution charged Mr. Wallace with one count of murder in the second degree and seven counts of robbery in the first degree. See N.Y. Penal Law §§ 125.25(3), 160.15(3).
In July 1994, the Honorable Howard E. Bell presided over a suppression hearing. Mr. Wallace moved to suppress (1) evidence seized from his apartment; (2) lineup identifications; and (3) statements he made to police officers and to the prosecution. The court denied the motion except with respect to statements Mr. Wallace had made to the Assistant District Attorney.
After a trial before Justice Bell and a jury in September 1994, Mr. Wallace was convicted of one count of murder in the second degree and five counts of robbery in the first degree. Over the petitioner's objection, the court then adjudicated Mr. Wallace a persistent violent felony offender pursuant to New York Criminal Procedure Law ("CPL") § 400.16, and sentenced him to 20 years to life imprisonment on the count of murder, a sentence that was to run consecutively to five consecutive terms of 12 years to life for the five counts of robbery. Mr. Wallace appealed. The Appellate Division reversed the lower court's judgment and remanded for a new trial, indicating that, although Justice Bell had properly denied Mr. Wallace's motion to suppress, it was "constrained to reverse" because the trial court had failed to obtain Mr. Wallace's written consent before replacing a juror who had been deliberating. People v. Wallace, 250 A.D.2d 398, 399, 672 N.Y.S.2d 691, 692 (1st Dep't 1998).
Mr. Wallace's second trial, before Justice John A. K. Bradley and a jury, began in September 2000. The prosecutor elicited testimony that Mr. Wallace had confessed to "fifteen or sixteen" robberies, which exceeded the number with which he had been charged. At the conclusion of the second trial, Mr. Wallace was acquitted of the murder charge and convicted of only three counts of robbery. Over Mr. Wallace's objection, Justice Bradley did not make a de novo determination that the petitioner was a persistent violent felony offender but instead adopted Justice Bell's finding on that issue. Justice Bradley then sentenced Mr. Wallace to consecutive indeterminate terms of imprisonment of 20 years to life for each of the three counts of robbery.
The petitioner appealed, but the judgment was affirmed. People v. Wallace, 298 A.D.2d 130, 747 N.Y.S.2d 759 (1st Dep't 2002). He then requested leave to appeal to the New York Court of Appeals, but his application was denied on December 11, 2002. People v. Wallace, 99 N.Y.2d 565, 754 N.Y.S.2d 218 (2002). The conviction became final on March 11, 2002.*fn1 On October 22, 2003, Mr. Wallace filed a pro se motion to vacate the judgment pursuant to CPL § 440.10. After that motion was denied, he filed a request for leave to appeal, but that application was rejected on July 15, 2004. Mr. Wallace filed his habeas corpus petition on November 2, 2004.*fn2
The Petition raises nine grounds for relief, which can fairly be distilled to five discrete claims. Petitioner argues that (1) he was deprived of a fair trial and denied due process when the trial court permitted testimony indicating that he had confessed to 15 or 16 robberies; (2) the court deprived him of due process when it failed to make a de novo determination concerning his status as a persistent violent felony offender; (3) he was further denied due process because the fact that his second sentence was longer than the first suggests that it was vindictive; (4) he received ineffective assistance of trial counsel; and (5) the trial court erred by admitting evidence obtained in violation of his Fourth Amendment rights.*fn3
A. Exhaustion of Remedies
A habeas corpus petitioner must exhaust all available state court remedies prior to seeking federal review of any issue. 28 U.S.C. § 2254(b), (c). To comply with this requirement, the petitioner must fairly apprise the state court system of the facts and legal theory upon which he bases each claim, and give the appropriate state court the opportunity to grant relief. See Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191-92 (2d Cir. 1982). For a claim to be fairly presented to the state courts, the petitioner need not cite "book and verse on the federal constitution," Picard, 404 U.S. at 278 (1971), but he must articulate the claim in federal constitutional terms sufficient to alert the court to its federal nature. Daye, 696 F.2d at 191. Cf. Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) ("[I]f a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court."). To fully exhaust a claim raised on appeal in New York State, a petitioner must present each relevant claim in his application to appeal to the New York Court of Appeals. Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 94 (2d Cir. 2001).
As the respondent concedes, the petitioner's first, third, and fourth claims were fairly presented to the state courts prior to the filing of the habeas petition. (Respondent's Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus at 20). The first and third claims were raised in constitutional terms at the trial level, on direct appeal, and in the petitioner's request for leave to appeal to the New York Court of Appeals. Mr. Wallace raised his fourth claim, alleging ineffective assistance of trial counsel, in his pro se motion to vacate the judgment.
The petitioner's second and fifth claims, however, are unexhausted. As for the second claim, the petitioner apprised the state courts of his concern that the trial court had erred in failing to conduct a de novo determination as to whether he fit the definition of a persistent violent felon, but he complained of a violation of the criminal procedure law of New York and never stated the claim in federal constitutional terms. (Brief for Defendant-Appellant ...