The opinion of the court was delivered by: John Gleeson, United States District Judge
Haashiem C. Andrews, a prisoner incarcerated in the Fishkill Correctional Facility pursuant to a judgment of the New York Supreme Court, Kings County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Andrews challenges his conviction and sentence following his plea of guilty in 2009 to a violation of his probation. Appearing pro se, Andrews seeks habeas relief on the grounds discussed below. Oral argument was held on October 23, 2009, at which Andrews appeared by teleconference from the facility in which he is serving his sentence. For the reasons set forth below, I dismiss Andrews's petition without prejudice as premature.
On February 11, 1993, Andrews plead guilty to robbery in the third degree, a class D felony, in Kings County Supreme Court. He was sentenced to a six-month term of imprisonment and a five-year term of probation as a youthful offender. On June 4, 1994, following several probation violations, the Kings County Supreme Court issued a declaration of delinquency as to Andrews. Subsequently, a violation of probation warrant was issued. Andrews could not be found by the New York authorities for approximately 14 years, during which he was incarcerated for some time in Pennsylvania.
Specifically, Andrews was incarcerated on and off throughout 1994 in Pennsylvania. Thereafter, Andrews was incarcerated in Pennsylvania from September 23, 1996 until August 13, 2008. On November 9, 2008, Andrews was arrested in Poughkeepsie, New York and returned to Kings County on the outstanding violation of probation warrant on November 10, 2008. On February 25, 2009, Andrews plead guilty to violating the terms of his probation in exchange for a sentence of one to three years.
B. The Procedural History
Andrews did not appeal his sentence to the New York State Appellate Division or the Court of Appeals. Instead, he filed the instant petition in this court on April 13, 2009.
A. The Standard of Review
1. Exhaustion and Procedural Default
28 U.S.C. § 2254(b) prevents a federal court from granting a petition for a writ of habeas corpus unless the petitioner has first exhausted all available state judicial remedies. In order to have exhausted those remedies, a petitioner must have "fairly presented" his federal constitutional claims to the highest state court by apprising it of "both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
The statute prohibits the grant of a petition on a ground that has not been exhausted. See 28 U.S.C. § 2254(b)(1)(A). Such claims may be denied on the merits, see 28 U.S.C. § 2254(b)(2), or dismissed. A third option, the so-called "stay and abeyance" procedure created by Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir. 2001), and endorsed (with some modifications) by Rhines v. Weber, 544 U.S. 269, 277-78 (2005), is available in circumstances not present here.*fn1
An unexhausted claim that can no longer be exhausted is deemed procedurally defaulted. See Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2000) ("[W]hen 'the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must ...