The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Thomas McFadden ("McFadden") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Monroe County Court on charges of first degree robbery (N.Y. Penal Law § 160.15(2)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
McFadden and a co-defendant, Frederick Gaston ("Gaston"), were arrested and charged with the robbery of a Wilson Farms convenience store in the City of Rochester. After a joint trial held on in Monroe County Court (Maloy, J.), both defendants were convicted of first degree robbery as charged in the indictment. McFadden was adjudicated as a second felony offender and was sentenced to an indeterminate sentence of ten to twenty years. On appeal, the judgments of conviction were reversed upon the ground that the trial court erred in denying defendants' challenge for cause with regard to a prospective juror. People v. McFadden, 244 A.D.2d 887, 665 N.Y.S.2d 985 (App. Div. 4th Dept. 1997). The appellate court affirmed the trial court's denial of defendants' suppression motions, however. Id.
At the retrial, conducted in Monroe County Court (Attilo, J.), defendants again were convicted of first degree robbery as charged in the indictment. This time, the prosecution sought to have McFadden declared a persistent felony offender using a prior felony conviction in addition to those taken into account when McFadden had been adjudicated a second felony offender after the first trial. McFadden did not controvert any of the felony convictions, and the trial court granted the prosecution's request. McFadden accordingly was sentenced as a persistent felony offender to fifteen years to life in prison.
On direct appeal, McFadden's conviction was unanimously affirmed by the Appellate Division, Fourth Department, of New York State Supreme Court. People v. McFadden, 289 A.D.2d 1030, 735 N.Y.S.2d 280 (App. Div. 4th Dept. 2001). The New York Court of Appeals denied leave to appeal. People v. McFadden, 97 N.Y.2d 757, 769 N.E.2d 364, 742 N.Y.S.2d 618 (N.Y. 2002).
McFadden collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, challenging the legality of the search of his home and the seizure of various items by police on the night of the robbery and alleging that the identification procedure employed during the show-up was unduly suggestive. County Court (Geraci, J.). denied the motion because all of the issues raised were apparent on the record and thus could have been raised on direct appeal. See March 9, 2001 County Court Order at 2-3) (citing N.Y. Crim. Proc. Law § 440.10(2)(b), attached to Respondent's Appendix of Exhibits as Ex. K).
On April 15, 2002, McFadden brought another C.P.L. § 440.10 motion, this time alleging that trial counsel was ineffective because he "provid[ed] the defendant with misstatements of the highest possible sentence he could receive after retrial." McFadden argued that counsel's gave him "mistaken information" regarding his possible sentence exposure "upon which to base his appeal following the first trial." According to McFadden, "counsel[']s act clearly prejudice [sic] the defendant by imposing a greater sentence upon the defendant[.]" McFadden also claimed that counsel was deficient in failing to move to suppress the bullets that were seized at McFadden's apartment as being outside the scope of the search warrant. In a written decision and order, Judge Geraci denied the motion on the merits. See June 7, 2002 County Court Order, attached to Respondent's Appendix of Exhibits as Ex. N.
This habeas petition followed in which McFadden raises the following grounds for relief:
(1) ineffective assistance of trial counsel; and (2) denial of his Fourth Amendment rights. Respondent argues that the ineffective assistance of counsel claim is unexhausted because McFadden did not appeal the denial of the motion to the Appellate Division and therefore failed to complete one full round of state court review. The Court agrees with respondent that the claim is unexhausted. Pursuant to 28 U.S.C. § 2254(b)(2), the Court has the discretion to deny a mixed petition containing both exhausted and unexhausted claims.
The Second Circuit has not yet articulated a standard for determining when unexhausted claims should be denied on the merits, but the majority of district court decisions in this Circuit have embraced a "patently frivolous" test for dismissing unexhausted claims. Naranjo v. Filion, 2003 WL 1900867, at *8 (footnote omitted) (citing Hammock v. Walker, 2002 WL 31190945, at *2 (W.D.N.Y. Sept.17, 2002); Cruz v. Artuz, 2002 WL 1359386, at *8 (E.D.N.Y. June 24, 2002); Pacheco v. Artuz, 193 F. Supp.2d 756, 761 (S.D.N.Y. 2002); Rowe v. New York, 2002 WL 100633, at *5 (S.D.N.Y. Jan. 25, 2002); Love v. Kuhlman, 2001 WL 1606759, at *5 (S.D.N.Y. Dec. 12, 2001); Shaw v. Miller, 2001 WL 739241, at *2 n. 2 (E.D.N.Y. June 26, 2001); Santana v. Artuz, 2001 WL 474207, at *3-4 (S.D.N.Y. May 1, 2001)). A minority of courts in this Circuit have expressed the test as whether "'it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,' in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof)." Id. (quoting Hernandez v. Lord, 2000 WL 1010975, at *4-5 & n. 8 (S.D.N.Y. July 21, 2000)) (internal quotations omitted) (analyzing the diverging views without deciding which standard is appropriate); see also Padilla v. Keane, 2000 WL 1774717, at *3 (S.D.N.Y. Dec. 4, 2000); Orraca v. Walker, 53 F. Supp.2d 605, 611 (S.D.N.Y. 1999); Basnight v. Keane, 2001 WL 901139, at *5 n. 1 (E.D.N.Y. July 31, 2001) (articulating "non-meritorious" standard rather than "patently frivolous," although claims failed either standard). The ...