The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the court is a petition for habeas corpus relief filed by James Lynch ("Lynch") pursuant to 28 U.S.C. § 2254. Lynch challenges his state court conviction on two grounds: (1) the failure to grant severance; and (2) the failure to suppress evidence.*fn1
On February 8, 2003, Lynch sexually assaulted "LJ,"*fn2 a woman with whom Lynch had a previous relationship. (Respondent's Memorandum in Opposition to Habeas Petition, at 2-3).
Between February 9, 2003, and February 25, 2003, Lynch left LJ 29 "harassing" voice messages on her cell phone and home answering machine. (Petitioner's Memorandum for Habeas Petition, at 2; see also Brief for Appellant submitted to Appellate Division, Fourth Department at pages 8-14).
On March 8, 2003, Officers Jay Denosky and Brian Ameele arrived at Lynch's home, requesting that Lynch accompany them to the police station for questioning about his relationship with LJ. Prior to agreeing to leave with the officers, Lynch asked the officers if he needed an attorney. At a Huntley*fn3 hearing, Officer Denosky testified that he advised Lynch that "it wasn't my decision as to whether or not he needed an attorney; and if he felt he needed one, for some reason, then he should contact one." (Brief for Appellant submitted to Appellate Division, Fourth Department at page 18). It appears undisputed that Lynch then looked up an attorneys number in the phone book, placed a call, and left a voice message. Id. Lynch then agreed to accompany the officers to the police station. Officer Denosky testified that he read Lynch his Miranda*fn4 rights. (Docket No. 7, Memorandum of Law at page 3). According to Officer Denosky, after being informed of his rights, Lynch waived his right to counsel and answered Officer Denosky's questions regarding LJ and the sexual assault. During that discussion, Lynch admitted to slapping LJ and to having sex with her during the time in question. (Docket No. 7, Lynch's Statement attached as Exhibit A to Declaration of Chelsea Chaffee, Esq.).*fn5
Lynch was subsequently indicted on the following charges: rape in the first degree, sodomy in the first degree, assault in the second degree, assault in the third degree, unlawful imprisonment in the second degree and 31 counts of aggravated harassment in the second degree. Prior to trial, Lynch filed a motion seeking to sever the harassment counts from the other counts and to suppress statements he made to Officer Denosky. The trial judge denied Lynch's motion to sever the counts, and, after holding a Huntley Hearing, denied Lynch's motion to suppress.
On August 22, 2003, Lynch pled guilty to one count of sodomy in the first degree in satisfaction of the indictment. (Docket No. 7, Exhibit E, Appellate Division, Fourth Department, Memorandum Decision dated December 30, 2004 at page 1). On appeal, the petitioner challenged his conviction on the grounds that the trial judge denied his motion to suppress evidence and further denied Lynch's motion to sever the trial relating to the harassment counts from the other the charges. The Appellate Division, Fourth Department held:
By pleading guilty, defendant forfeited his present contention that County Court erred in denying his motion ... to sever the aggravated harassment counts from the remaining counts. ... In any event, we conclude that defendant's contention lacks merit. The proof underlying the aggravated harassment counts was "material and admissible as evidence in chief upon a trial" with respect to the remaining counts because of its bearing on the issues of defendant's intent and whether the sexual acts were consensual ... and thus the motion was properly denied.
Also contrary to the contention of defendant, the court properly denied his suppression motion. Although defendant asked the police whether he needed an attorney, that question does not constitute an unequivocal request for counsel.... In any event, the record establishes that defendant voluntarily accompanied the police to the police station and waived his right to the presence of counsel. (Docket No. 7, Exhibit E, Appellate Division, Fourth Department, Memorandum Decision dated December 30, 2004 at pages 1-2).
Federal courts may only grant a writ of habeas corpus upon a constitutional challenge that has first been "fairly presented" to the state courts. 28 U.S.C. § 2254(b)(1)(A); See Willette v. Fischer, 508 F.3d 117, 121 (2d Cir. 2007) (citing Picard v Connor, 404 U.S. 270, 275 (1971) ("We emphasize that the federal claim must be fairly presented to the state courts.")). A state prisoner must exhaust state remedies for every claim in a federal habeas petition to receive consideration. Rose v. Lundy, 455 U.S. 509 (1982). Exhaustion requires the prisoner to present the challenge to ...