The opinion of the court was delivered by: Hon. Hugh B. Scott
The petitioner, Jon DuQuin ("DuQuin"), has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254.
On November 7, 2003, DuQuin was charged in a two-count indictment with burglary in the second degree and grand larceny in the fourth degree. The charges were based upon allegations that, on May 3, 2003, DuQuin burglarized his brother's residence in Cheektowaga, New York and stole his credit card. On January 26, 2004, DuQuin pled guilty to one count of attempted burglary in the second degree. He was sentenced as a second felony offender to five years incarceration and five years post release supervision.
The record reflects that DuQuin is hearing impaired. The petitioner's application for habeas corpus relief is based upon his assertion that he was not provided a sign language interpreter on the following occasions
1. At the time of his arrest on September 20, 2003, he was denied a sign language interpreter and a phone call using a TTD phone machine (Ground One);
2. That he was denied a sign language interpreter when he was arraigned before the Cheektowaga Town Court Judge (Ground Two);
3. He was denied a sign language interpreter when meeting with his attorney on January 25, 2004 to discuss the plea offer (Ground Three); and
4. He was denied a sign language interpreter when meeting with his attorney on May 19, 2004 to discuss the his sentencing (Ground Four). (Docket No. 1 at pages 5-6).
In the interests of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts.*fn1 See Ayala v. Speckard, 89 F. 3d 91 (2d Cir. 1996), citing Picard v Connor, 404 U.S. 27, 275, 92 S.Ct 509, 512, 30 L.Ed 2d 438 (1971); Daye v Attorney General of New York, 696 F. 2d 186, 191 (2d Cir. 1982) (en banc), cert denied, 464 U.S. 1048 (1984).
A state prisoner seeking federal habeas corpus review of his conviction must first exhaust his available state court remedies with respect to issues raised in the federal habeas petition. Rose v Lundy, 455 U.S. 509 (1982) To meet this requirement, the petitioner must have raised the question in a state court challenge to his conviction and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Ferve, 846 F. 2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F. 2d 684, 688-89 (2d Cir. 1984).
Respondent asserts that the petitioner has failed to exhaust his state court remedies with respect to at least two of the claims asserted in the petition. Regardless, this Court may consider the merits of the Petition notwithstanding the failure of the petitioner to exhaust. 28 U.S.C. § 2254(b).
State court findings of "historical facts," and inferences drawn from those facts, are entitled to a presumption of correctness. Matusiak v. Kelly, 786 F. 2d 536, 543 (2d Cir.), cert. denied, 479 U.S. 805 (1986). (See also 28 U.S.C. § 2254(e)(1) which states that, "a determination of a factual issue made by a State court shall be presumed to be correct.") Where the State court has reviewed an issue on the merits, in order for a petitioner to prevail in a federal habeas corpus claim he must show that there was a violation of 28 U.S.C., § 2254(d). As amended by the Antiterrorism and Effective Death Penalty Act of 1996*fn2 ("AEDPA"), § 2254(d) provides that ...