The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Lateik Mitchell ("Mitchell" or "Petitioner") has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mitchell is incarcerated at Attica Correctional Facility as the result of a judgment of conviction entered on January 14, 2005, in Monroe County Court of New York State following a jury verdict convicting him of four counts of Criminal Possession of a Weapon in the Second Degree (New York Penal Law ("P.L.") § 265.03(2)), four counts of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(4)), six counts of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1)), one count of Reckless Endangerment in the First Degree (P.L. § 120.25), and one count of Unlawful Wearing of a Body Vest (P.L. § 270.20(1)).
II. Factual Background and Procedural History
Shortly before 1:00 a.m. on October 26, 2003, Patricia Frasier and her ten-year-old granddaughter were asleep in the second-floor bedroom of their house at 26-28 Shelter Street in Rochester, New York. Petitioner and his five accomplices*fn1 drove up in a van and opened fire at the house with a variety of firearms. Police, who had been staking out the area, pulled over the van and arrested the occupants. Petitioner, who had been driving the van, was found to be wearing a bullet-proof vest. The police recovered six firearms from the van, including a Norinco "MAK 90" assault rifle, which was later determined to have been used in the shooting.
Following a jury trial, Petitioner was convicted of all sixteen counts in the indictment. On January 14, 2005, Petitioner was sentenced, as a second felony offender, to consecutive determinate sentences of fifteen years imprisonment on each of the second degree weapon possession convictions (P.L. § 265.03(2), relating to the Rossi .38 caliber, the AMT .380 caliber, the Ruger 9 millimeter, and the Norinco assault rifle); concurrent determinate seven year terms on four of the third-degree weapon possession convictions (P.L. § 265.02(4), relating to the same four weapons as in the second degree convictions, for possessing the weapons outside his home or place of business); consecutive three and one-half to seven years terms on two of the third-degree weapon possession convictions (P.L. § 265.02(4), relating to the Smith & Wesson .38 caliber and the Taurus .357 Magnum); concurrent three and one-half to seven year terms on the four remaining third-degree weapon possession convictions (P.L. § 265.02(1), relating to the four weapons charged in the second-degree possession counts, but for possessing a firearm and having previously been convicted of a crime); a consecutive three and one-half to seven year term on the Reckless Endangerment conviction; a consecutive two to four year term on the body vest conviction; and five years of post-release supervision on each of the determinate sentences.
On appeal, the Appellate Division, Fourth Department, of New York State Supreme Court found that the trial court erred in imposing consecutive, rather than concurrent, sentences for the various weapons-possession convictions and the body-vest conviction because "[t]he evidence at trial established only that [Petitioner] constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus." People v. Mitchell, 77 A.D.3d 1376, 1377-78 (4th Dept. 2010). Furthermore, Fourth Department, found the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest." Id. at 1378 (citation omitted). Those sentences accordingly were modified to run concurrently. Id. As modified, the judgment was affirmed. Id. The New York Court of Appeals denied leave to appeal. People v. Mitchell, 15 N.Y.3d 954 (2010).
This timely habeas petition followed in which Petitioner asserts the following claims: (1) no stenographic record was made of the prosecutor's peremptory challenges at voir dire or of a Batson claim raised by the defense; (2) the trial court improperly denied Petitioner's request to charge the lesser included offense of fourth degree criminal possession of a weapon with respect to the four counts of second degree criminal possession of a weapon; (3) the trial court improperly "pyramided" two permissive presumptions; (4) the police violated Petitioner's Fourth Amendment rights by stopping the van; (5) the police lacked probable cause to search the van; and (6) the Appellate Division improperly failed to modify the sentence for the reckless endangerment conviction to run concurrently rather than consecutively.
For the reasons that follow, the request for a writ of habeas corpus is denied, and the petition is dismissed.
A. Exhaustion (Grounds One, Two, and Six)
A habeas court may not consider the merits of a claim unless it was fairly presented in federal constitutional terms to the "highest state court from which a decision can be had." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc). A petitioner may apprise the state courts of the constitutional nature of his claims by explicitly arguing that a federal constitutional right was violated, either by citing to the Constitution, or by relying on pertinent federal cases employing a constitutional analysis, relying on state cases employing a constitutional analysis in like fact situations, asserting the claim in terms that call to mind a specific right protected by the Constitution, and alleging a fact-pattern well within the mainstream of constitutional litigation. Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005) (citing Daye, 696 F.2d at 194).
Respondent concedes that Mitchell has exhausted his claim regarding the permissive presumptions charged to the jury (Ground Three) and his Fourth Amendment claims (Grounds Four and Five). Respondent argues that the remaining claims (failure to make a complete record of voir dire (Ground One), failure to charge fourth degree criminal possession of a weapon as a lesser included offense (Ground Two), and erroneous imposition of consecutive sentences (Ground Six)) are unexhausted but should be deemed exhausted and procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 732 (1991) (A federal claim is procedurally defaulted when a prisoner has "failed to meet the State's procedural requirements" for presenting it and has therefore "deprived the state courts of an opportunity to address [the claim] in the first instance.").
First, Respondent argues, although appellate counsel presented these three claims in her brief to the Fourth Department, she couched them solely in state law terms. With regard to the voir dire claim, the Court disagrees. Appellate counsel cited People v. Harrison, 85 N.Y.2d 794 (1995), which involved a claim that the defendant's federal due process right to a fair appeal and his federal right to effective assistance of counsel on appeal were violated by the court's refusal to record the voir dire proceedings, including the lawyers' objections and the court's rulings on these objections. Id. at 795 (citations omitted). Although this is a state case, it referenced federal constitutional law in the same fact situation as presented by Mitchell's case.
However, the Court agrees with Respondent that the voir dire claim nevertheless is unexhausted because appellate counsel failed to specifically address that claim in her leave application. Appellate counsel stated that leave should be granted "primarily for two reasons: the coupling of two legal presumptions . . . violates due process, and the remaining consecutive aspect of the new sentence is contrary to law . . . ." Leave Application, Resp't Ex. F (Dkt. #6-1). Appellate counsel also requested that Petitioner's pro se appellate brief raising the Fourth Amendment issues be examined as part of the leave application. Id. Appellate counsel did not address any of the other issues raised in her brief to the Fourth Department, merely stating that the briefs and record before that court were enclosed. Id. Under Second Circuit law, Respondent is correct that the remaining claims not mentioned by appellate counsel were not fairly presented to the New York Court of Appeals. See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000) ("[A]rguing one claim in his letter while attaching an appellate brief without explicitly alerting the [New York Court of Appeals] to each claim raised does not fairly present such claims," even though petitioner sought leave "for all these reasons and [those] set forth in his Appellate Division briefs.").
With regard to the consecutive sentencing claim and lesser-included-offense claim, the Court agrees with Respondent they are unexhausted because they were solely presented in state law terms to the Fourth Department. See Baldwin v. Reese, 541 U.S. 27, 30-33 (2004) (finding ineffective appellate counsel claim to be ...