The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Jason Cato ("Cato"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is challenging two convictions involving drug crimes in Ontario County Court, one following a jury trial on August 31, 2001, and one entered pursuant to a guilty plea on October 9, 2001. 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
The convictions here at issue stem from Cato's alleged involvement in a series of drug sales which occurred between July 24, 2000, and February 21, 2001, in the City of Geneva. On May 18, 2001, Cato was arraigned on indictment number 01-04-057 which charged him with six counts of criminal sale of a controlled substance in the third degree ("CSCS3"), one count of criminal possession of a controlled substance in the third degree ("CPCS3"), and seven counts of criminal possession of a controlled substance in the seventh degree ("CPCS7").*fn1 This thirteen-count indictment covered transactions alleged to have occurred on July 24, 2000; January 18, 2001; January 22, 2001; February 8, 2001; February 15, 2001; and February 21, 2001. Ontario County Court dismissed the three counts pertaining to the February 8, 2001 transaction.*fn2 Cato went to trial on the remaining ten counts and, on August 31, 2001, the jury returned a verdict convicting him of eight of those counts. (He was acquitted of the two charges pertaining to the July 24, 2000 transaction.)
The prosecutor re-presented the charges stemming from the February 8th transaction which had been dismissed by the trial court and, on September 20, 2001, the grand jury handed down indictment number 01-07-117, charging Cato with one count of CSCS3, one count of CPCS3, and one count of CPCS7. Cato was arraigned on October 9, 2001, while he was awaiting sentencing on his convictions entered after the jury trial. The judge advised Cato that if he pled guilty to the charges in indictment number 01-07-117, the possible sentence would be capped at ten to twenty years and would run concurrently to the sentences Cato would receive on his other convictions. R.0034.*fn3 After conferring with Cato, defense counsel reiterated the trial court's sentence promise for the record and indicated that Cato would plead guilty. R.0035-36. Cato then allocuted to the charges contained in indictment number 01-07-117. R.0045-46. At that time, Cato was sentenced on his trial convictions to concurrent terms of eight and one-half to seventeen years on each felony conviction. R.1139-1141.
On October 19, 2001, Cato appeared for sentencing on his convictions that had been entered pursuant to a guilty plea on October 9th. At this time, Cato (acting pro se) moved to withdraw his plea, claiming that he had been promised, off the record, a sentence of seven to fourteen years. R.0053-56. The trial court denied his motion and sentenced him to a term of eight and one-half to seventeen years, to run concurrently with the sentences he had received on his trial convictions. R.0061-62.
Cato appealed both sets of convictions to the Appellate Division, Fourth Department, of New York State Supreme Court, which unanimously upheld them. People v. Cato, 306 A.D.2d 912, 761 N.Y.S.2d 909 (App. Div. 4th Dept. 2003). Cato moved for reargument which was denied. Leave to appeal to the New York Court of Appeals was denied with respect to all of the Fourth Department's decisions.
Cato then filed a motion for vacatur pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. R.1162-74. Ontario County Court denied the motion. R.1206-08. Leave to appeal to the Appellate Division was denied. R.1217. This timely habeas petition followed in which Cato asserts the following grounds for relief: (1) the trial court committed reversible error "by failing to preempt for cause prosecution oriented unfair potential jurors"; (2) the trial court committed reversible error by failing to give a "missing witness" charge to the jury; (3) the trial court abused its discretion in its Sandoval ruling;*fn4 and (4) "involuntary guilty plea, unkept plea agreement and failure of lower court fo fulfill sentence as promised." Petition, ¶¶12(a) - (d) (Docket No. 1). Respondent answered the petition and interposed the defenses of non-exhaustion and procedural default with respect to grounds two and three. See Respondent's Memorandum of Law ("Resp't Mem.") at 4-5 (Docket No. 11).
For the reasons set forth below, the petition is dismissed.
Exhaustion and Procedural Default
As respondent correctly notes, it is well-settled that in order to obtain a writ of habeas corpus, a petitioner must have exhausted his available state court remedies with respect to his constitutional claims. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Grey v. Hoke, 933 F.2d 117, 119-21 (2d Cir. 1991). The exhaustion requirement extends to every federal claim asserted by a petitioner. Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). However, federal courts now have the discretion to deny on the merits a petitioner's unexhausted claims. See 28 U.S.C. § 2254(b).
In particular, the exhaustion doctrine "requires . . . that state prisoners give state courts a fair opportunity to act on their claims." O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 526 U.S. at 844 (citing 28 U.S.C. § 2254(c)) (additional citations omitted). Thus, a petitioner is not deemed to have exhausted the available state remedies if he or she has the right under state law to raise, by any procedure, the federal question presented in his or her habeas petition. 28 U.S.C. § 2254(c). The Supreme Court has interpreted this as requiring petitioners to invoke of "one complete round of the State's established appellate review process," including an application to "a state court of last resort when that court has discretionary control over its docket." O'Sullivan, 526 U.S. at 843, 845.
Thus, the exhaustion requirement is not satisfied until the petitioner has "fairly presented" the federal claim to the highest court of the state. See Picard, 404 U.S. at 275 ("We emphasize that [for purposes of exhaustion] the federal claim must be fairly presented to the state courts."). A claim may be "fairly presented" to the state courts if "the legal basis of the claim made in state court was the 'substantial equivalent' of that of the habeas claim." Daye Attorney General of New York, 696 F.2d 186, 192 (2d Cir. 1982) (quoting Picard, 404 U.S. at 278) (additional citations omitted). "This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. Additionally, a habeas petitioner may "fairly present" his or her federal claims "even without citing chapter and verse of the Constitution," by the following four methods, first summarized by the Second Circuit in Daye v. Attorney General of New York: (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye, 696 F.2d at 194.
Respondent argues that Cato failed to exhaust his claim regarding the failure to issue a missing witness charge because, although petitioner argued in his Appellate Division brief that the trial court erroneously failed to deliver a missing witness charge, the claim was not presented to the state courts in "federal constitutional terms." Respondent's argument has some force; however, in the interest of judicial economy, the Court will consider Cato's claim on the merits. As discussed more fully infra, the claim does not provide a basis for habeas relief.
Respondent also raises the defense of non-exhaustion with regard to Cato's claim that the trial court erred in its Sandoval ruling, arguing that the claim was not presented in federal constitutional terms when it was raised on direct appeal. Resp't Mem. at 6 (Docket No. 11). Respondent further notes that, in any event, a Sandoval claim is an evidentiary issue and, as such, is purely a matter of state law. Id. The Court need not decide whether Cato's Sandoval claim has been properly exhausted because, as respondent argues later in its memorandum of law, it is not cognizable on federal habeas review due to Cato's failure to testify at trial. See Grace v. Artuz, 258 F. Supp.2d 162, 171-72 (E.D.N.Y. 2003) (in absence of petitioner taking the stand to testify at trial, "petitioner's claim as to the impropriety of the Sandoval ruling [did] not raise a constitutional issue cognizable on habeas review") (citing Carroll v. Hoke, 695 F. Supp. 1435, 1440 (E.D.N.Y. 1988) aff'd, 880 F.2d 1318 (2d Cir. 1989) (citing Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (holding that in order "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify")); accord Brathwaite v. Duncan, 271 F. Supp.2d 400, 401 (E.D.N.Y. 2003) (holding that Sandoval claim not cognizable on federal habeas review where petitioner did not testify at trial).
To prevail under 28 U.S.C. § 2254, as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his Federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of ...