The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
This is a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 brought by Gregory Kellam, who is currently incarcerated at Gouverneur Correctional Facility in Gouverneur, New York. On May 13, 2003 the petitioner pleaded guilty in New York State Supreme Court, New York County, to one count of criminal possession of a dangerous weapon in the third degree in violation of New York Penal Law § 265.02(1) and one count of attempted grand larceny in the fourth degree in violation of New York Penal Law §§ 110.00, 155.30(5).
On May 27, 2003 the petitioner was sentenced, as a second felony offender, to an indeterminate prison sentence of two to four years on the weapon charge. The petitioner appealed to the New York State Supreme Court, Appellate Division, First Department, which on January 25, 2005 unanimously affirmed the petitioner's judgment of conviction. The petitioner's application for leave to appeal to the New York Court of Appeals was denied on July 05, 2005. In his current petition, the petitioner challenges his conviction on three grounds. First, the petitioner alleges that the trial court added an offense not charged by the indictment. Second, the petitioner alleges that a police officer gave false testimony before the Grand Jury. Third, the petitioner alleges that the evidence before the Grand Jury was insufficient. For the reasons that follow, the petition for a writ of habeas corpus is denied.
By New York County Indictment No. 7255/02, a Grand Jury charged the petitioner with four violations of the New York Penal Law. (See Indictment, attached as Ex. A to Decl. of Thomas B. Litsky in Opp'n to the Pet. for a Writ of Habeas Corpus, Dec. 12, 2006 ("Litsky Decl.").) Count One charged the petitioner with attempt to commit the crime of robbery in the first degree for forcibly attempting to steal property from Larry Steele using a dangerous instrument in violation of New York Penal Law §§ 110.00, 160.15(3). Count Two charged the petitioner with attempt to commit the crime of robbery in the second degree for forcibly attempting to steal property from Larry Steele while aided by another person actually present in violation of New York Penal Law §§ 110.00, 160.10(1). Count Three charged the petitioner with the crime of criminal possession of a weapon in the third degree for possessing a razor blade after having been convicted of a prior crime in violation of New York Penal Law § 265.02(1). Count Four charged the petitioner with attempt to commit the crime of grand larceny in the fourth degree for attempting to steal property from Larry Steele in violation of New York Penal Law §§ 110.00, 155.30(5).
In response to the petitioner's motion, the trial court dismissed the attempted robbery counts because the evidence was legally insufficient to establish the element of force. (See Decision and Order of Justice White, March 6, 2003, attached as Ex. E to Litsky Decl.) The only remaining charges against the petitioner were one count of criminal possession of a weapon in the third degree and one count of attempted grand larceny in the fourth degree. (See id.)
On May 13, 2003, the petitioner pleaded guilty to both remaining counts in satisfaction of his indictment, with the understanding that he would be sentenced to two to four years, the minimum the law provides on the third count, to which the fourth count would be merged by operation of law. (See Plea Allocution Tr. 9-10, 12-13, May 13, 2006.) During the plea allocution, Justice Allen reviewed the charges against the petitioner and confirmed that the petitioner had sufficient time to discuss his decision to plead guilty with his attorney, that he understood that he was giving up his right to trial by jury and other trial rights, and that no threats or promises other than the agreed-upon sentence had been made to him. (See id. at 10-13.) Before accepting the petitioner's guilty plea, Justice Allen confirmed by the petitioner's own testimony that the petitioner had in fact possessed a razor blade at the time he was arrested, and "was going to remove an object from someone's pocket that [he] found sleeping on the train." (Id. at 12.)
On May 27, 2003, while appearing for sentencing before Justice Allen, the petitioner submitted a pro se motion to withdraw his guilty plea pursuant to New York Criminal Procedure Law § 220.60(3). (See Aff. of Gregory Kellam in Supp. of Mot. for Withdraw of Plea ("Kellam Aff."), May 21, 2003, attached as Ex. G to Litsky Decl.; Sentence Tr. 2, May 27, 2003.) In his motion the petitioner alleged, among other things, that he was not guilty, that he had been coerced into pleading guilty by the court, the prosecutor, and his defense attorney (Kellam Aff. ¶¶ 4, 9) and that charges had been added to his indictment (see Aff. of Service, May 21, 2003, attached as Ex. G to Litsky Decl.). Justice Allen denied the petitioner's motion (Sentence Tr. 12) noting that the petitioner could raise these issues on appeal (id. at 13). After an extended speech, the defendant said that he did not want to say anything else and said "Get me out of here." (Id. at 16.) The petitioner was then sentenced in absentia to the agreed-upon sentence of two to four years on the weapon charge. (See id. at 15; Plea Tr. 7-8).*fn1
In November 2004, new counsel appointed for the petitioner's state appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and People v. Saunders, 384 N.Y.S.2d 161 (App. Div. 1976), advising the Appellate Division, First Department that there were no non-frivolous issues to be raised on appeal, and requesting permission to withdraw as counsel for the petitioner. (See Br. for Def.-Appellant to App. Div., Nov. 2004, at 10, attached as Ex. H to Litsky Decl.) In an opinion dated January 25, 2005, the Appellate Division unanimously affirmed the petitioner's conviction and sentence, and granted the application to withdraw as counsel, agreeing with the petitioner's assigned counsel "that there are no non-frivolous points which could be raised on this appeal." People v. Kellam, 787 N.Y.S.2d 876, 876 (App. Div. 2005). In February 2005 the petitioner filed a timely pro se application for leave to appeal to the New York Court of Appeals, raising, among other issues, the claims that are addressed in the petitioner's current habeas corpus petition. (See Letter to Hon. Stuart M. Cohen, received Feb. 28, 2005, attached as Ex. K to Litsky Decl.) The Court of Appeals denied leave to appeal on July 5, 2005. People v. Kellam, 835 N.E.2d 671 (N.Y. 2005) (table).
The petitioner originally filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, dated February 4, 2005. The petitioner filed an amended petition on March 30, 2005. By order dated January 4, 2006, the court directed the petitioner to file a second amended petition to demonstrate that he had fully exhausted his state court remedies and complied with Rule 2 of the Rules Governing Habeas Corpus Proceedings. (See Order of Judge McAvoy at 2, Jan. 4, 2006.) Thereafter, the petitioner filed his current petition, dated January 6, 2006 (Second Am. Pet. for Writ of Habeas Corpus, attached as Ex. M to Litsky Decl.) and the petition was transferred to this Court.
The petitioner's claims are unexhausted and procedurally barred because the petitioner failed to raise any of his three claims before the Appellate Division on direct appeal. A petitioner in a habeas corpus proceeding must exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254(b),(c); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). The exhaustion requirement requires the petitioner to have fairly presented in state court the claims which are raised in the habeas petition. See Picard v. O'Connor, 404 U.S. 270, 275-76 (1971); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). The petitioner must present to the state court both the factual and legal premises of the claims. See Daye, 696 F.2d at 191. The Supreme Court has held that [b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To do this, "the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations omitted). While the petitioner raised the claims contained in his habeas petition in his letter to the New York Court of Appeals requesting leave to appeal, that effort was insufficient to exhaust these claims. See Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000) ("Presenting a claim for the first time to a state court of discretionary review is insufficient to exhaust the claim unless the court considers it." (citing Castille v. Peoples, 489 U.S. 346, 351 (1989))); Lewis v. Dufrain, 392 F. Supp. 2d 498, 502 (W.D.N.Y. 2005) (holding that a claim remained unexhausted where it had been raised for the first time to the New York Court of Appeals, but had not been presented to the Appellate Division (citing Lurie, 228 F.3d at 224)). Therefore the petitioner's claims remain unexhausted because he has not presented his claims in each appropriate state court to complete a full round of appellate review.
Moreover, the petitioner's claims could not now be raised in the state court because they could have been, but were not, raised on direct appeal in state court. See N.Y. Crim. Proc. L. § 440.10(2)(c); see also Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001); Glover v. Portuondo, No. 96 Civ. 7616, 1999 WL 349936, at *6 (S.D.N.Y. May 28, 1999). The petitioner is procedurally barred from raising any of the claims addressed in his § 2254 habeas petition because they were not raised on direct appeal to the Appellate Division. In her Anders brief to the Appellate ...