The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION and ORDER
Petitioner brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction, rendered in the Oneida County Court on January 13, 2000, convicting him of Sexual Abuse, First Degree and Endangering the Welfare of a child. Petitioner was sentenced as a second felony offender to a term of seven years imprisonment, with a five year term of post-release supervision on the Sexual Abuse charge and a concurrent term of one year imprisonment for the Endangering charge. The Appellate Division, Fourth Department affirmed petitioner's conviction on March 21, 2003, and the New York Court of Appeals denied leave to appeal on October 8, 2003. People v. Van Gorden, 303 A.D.2d 1060, 755 N.Y.S.2d 689 (4th Dep't), lv. denied, 100 N.Y.2d 646, 769 N.Y.S. 2d 212, 801 N.E.2d 433 (2003).
Although the petition lists three grounds upon which he bases this application, it appears that petitioner is actually making four different arguments. The three claims that petitioner lists are as follows:
1. Petitioner was denied the effective assistance of appellate counsel.
2. The conviction was obtained by use of evidence acquired pursuant to an unlawful arrest.
3. Petitioner's sentence is illegal.
Although the second ground of the petition states that petitioner's conviction was obtained by use of evidence obtained pursuant to an unlawful arrest, the "supporting" facts listed under "Ground two" of the petition shows that petitioner also alleges that "[e]vidence was withheld during trial that would have caused another outcome with regard to the conviction that was rendered." Petition at p.5(B)(Dkt. No. 1). The "supporting facts" of "Ground two" appear to raise a claim that favorable evidence was withheld from petitioner that would have changed the outcome of the trial. This type of claim is generally brought under Brady v. Maryland, 373 U.S. 83 (1963).
Because the petitioner is pro se, the court considers all possible grounds for relief that petitioner could be raising. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)(pro se papers are interpreted liberally to raise the strongest arguments suggested therein); Stewart v. Ercole, 06- CV-1574, 2007 U.S. Dist. LEXIS 10282, *11 n.2 (E.D.N.Y. Feb. 15, 2007)(citing Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). In so doing, however, the court will not prejudice the petitioner by interpreting the petition as raising a claim that would, in itself, require dismissal of the petition on procedural grounds.
Respondent has filed a "declaration" in opposition to the petition and a memorandum of law, together with the pertinent state court records.*fn1 (Dkt. Nos. 8, 9). Magistrate Judge Di Bianco granted respondent's motion to seal these documents in order to protect the privacy of the victim. (Dkt. No. 9). Respondent argues for denial of the petition,*fn2 claiming that petitioner's first two grounds for relief are unexhausted, and petitioner's third ground does not raise a federal constitutional question. Respondent also argues that petitioner's first ground, although unexhausted, should be denied on the merits pursuant to 28 U.S.C. § 2254(b)(2), and petitioner's second ground, although unexhausted, is also procedurally barred and not cognizable in a federal habeas corpus application. For the following reasons, this court agrees with the respondent and will deny and dismiss the petition.
1. Facts and Procedural History
Because petitioner's case involved sexual abuse and endangerment of a small child, this court will only review the facts generally and as relevant to this decision. Petitioner's conviction resulted from the sexual assault of his girlfriend's five-year old daughter. In February 1999, petitioner was charged by an Oneida County grand jury with Sexual Abuse, First Degree*fn3 and Endangering the Welfare of a Child.*fn4 In August of 1999, petitioner was charged with two counts of Rape, First Degree*fn5 and one count each of Sexual Abuse, First Degree, and Endangering the Welfare of a Child for other incidents that had occurred at other times. The indictments were consolidated, and petitioner was tried in Oneida County Court by a jury, before the Honorable Barry M. Donalty.
Petitioner was convicted only of Sexual Abuse, First Degree and Endangering the Welfare of a child in connection with a January 14, 1999 incident. He was acquitted of all other charges. Petitioner was sentenced on January 13, 2000. At the sentencing, the judge adjudicated petitioner a second felony offender because he had previously been convicted of rape. Sentencing Transcript (ST) at 2-3. Petitioner did not contest that finding, nor did he contest the constitutionality of the prior conviction, when given the opportunity to do so by Judge Donalty. (ST at 3). The judge then sentenced petitioner to a determinate sentence of seven years incarceration on the Sexual Abuse charge, with five years of post-release supervision. (ST at 14-15). The petitioner was also sentenced to one year of imprisonment on the Endangerment charge, to be served concurrent with the seven year term. (ST at 15).
Petitioner filed an appeal with the Appellate Division, Fourth Department. Appellate counsel raised only the claim that petitioner's sentence of seven years with five years post-release supervision was unduly harsh and excessive and should be modified in the interests of justice. Respondent's Ex. A (Petitioner's Appellate Brief). The prosecutor filed a brief in opposition, responding to petitioner's sole claim. The Appellate Division, Fourth Department affirmed without opinion on March 21, 2003. People v. Van Gorden, 303 A.D.2d 1060, 755 N.Y.S.2d 689 (4th Dep't 2003)(Respondent's Ex. C). On August 18, 2003, petitioner's new counsel filed a request for leave to appeal to the New York Court of Appeals, stating that although the Court of Appeals did not have jurisdiction to review the petitioner's sentence as unduly harsh, the Court of Appeals should instead review the constitutionality of petitioner's sentence. Respondent's Ex. D. The New York Court of Appeals denied leave to appeal. People v. Van Gorden, 100 N.Y.2d 646, 769 N.Y.S. 2d 212, 801 N.E.2d 433 (2003). Petitioner does not allege that there were any further state court proceedings.
2. Exhaustion and Procedural Default
Prior to seeking relief in federal court, it is well-settled that a habeas petitioner must exhaust available state remedies or show that there is either an absence of available state remedies or that the remedies are ineffective to protect petitioner's rights. 28 U.S.C. § 2254(b)(1); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 515 U.S. 1118 (1995). Additionally, the petitioner's claims must be fairly presented so that the state court has the opportunity to decide any federal constitutional issues. Id.
The petitioner must have presented the substance of his federal claims to the highest available court of the state. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995)(citation omitted). The petitioner must assert the same legal theory, premising it on essentially the same body of facts. Matthews v. Keane, 94 Civ. 2815,1995 U.S. Dist. LEXIS 11120 *26 (S.D.N.Y. Jan. 13, 1995)(citations omitted). Finally, the petitioner must have utilized the proper procedural vehicle so that the state court may pass on the merits of petitioner's claims. Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985).
After the court determines whether a claim is unexhausted, the court must also determine whether petitioner has any "available procedures" to raise the issue in state court. If petitioner has not exhausted his state court remedies, but no longer has remedies available in state court with regard to these claims they are "deemed" exhausted but are also procedurally defaulted. St. Helen v. Senkowski, 374 F.3d 181, ...