MEMORANDUM AND ORDER

JOHN GLEESON, United States District Judge

Gregory Harvey has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

BACKGROUND The Facts

During the early morning hours of March 5, 1990, petitioner intentionally set fire to his mother-in-law's home in Queens County, New York, where he had been living with his pregnant wife, Theresa Harvey, and their two-year-old son, Julian. Theresa and Julian, who were asleep in the house, were both killed in the fire.

Petitioner fled the burning building and called a friend, Wilbert Gray, telling Gray that he had set the fire in order to commit suicide, but that he had changed his mind and escaped. Petitioner asked Gray to take him to the hospital, where Detective Erroll Garner arrested him that evening. Petitioner waived his constitutional rights and told Garner that he had set the fire in an effort to commit suicide, but had decided instead to escape from a window. Petitioner then invoked his right to counsel, and Garner stopped questioning him. A few minutes later petitioner told Garner that he was willing to speak without an attorney. Petitioner then said nothing, but upon Garner's saying "okay," petitioner was removed from his cell and gave a detailed statement. Again he admitted that he had set the fire in order to commit suicide (because of various marital and family problems with his wife and mother-in-law), but he had decided to escape. He added that he did not know that his wife and baby were in the house. The confession was reduced to writing, which petitioner signed and dated.

The Procedural History

Petitioner was subsequently charged with six counts of Murder in the Second Degree (two counts each of intentional murder, depraved indifference murder, and felony murder), one count of Arson in the First Degree, one count of Arson in the Third Degree, and one count of Reckless Endangerment in the First Degree (Queens County Indictment Number 1370/90).

Petitioner was initially found unfit to proceed to trial, but upon a second examination he was found competent to stand trial. He then moved to suppress his statements to the police on the ground that he was mentally incapable of making them knowingly and voluntarily. After a hearing, the New York State Supreme Court, Queens County (Berkowitz, J.), denied his motion, holding that petitioner had knowingly and voluntarily waived his constitutional rights.

Petitioner waived his right to a jury trial and proceeded to a bench trial before Justice Thomas A. Demakos of the New York State Supreme Court, Queens County. He did not deny setting the fire, but instead asserted an insanity defense. In a written verdict dated August 12, 1993, the court found that petitioner had failed to meet his burden of proving his insanity defense by a preponderance of the evidence, and found him guilty of two counts of second-degree felony murder, one count of first-degree arson, and one count of third-degree arson. The court acquitted petitioner of the intentional and depraved indifference murder counts, and of the reckless endangerment count.

On November 9, 1993, the court sentenced petitioner to concurrent prison terms of twenty-five years to life on each of the murder counts and arson in the first degree, and five to fifteen years on the third-degree arson count. In June of 1995, petitioner perfected his direct appeal to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"). He contended that the statements he made after invoking his right to counsel were erroneously admitted at trial under New York's "indelible right to counsel" because his waiver of counsel was made in the absence of counsel, see People v. Cunningham, 49 N.Y.2d 203 (1980), and because Garner "encouraged" petitioner to make his statement by saying "okay" after petitioner, without prompting, said that he was willing to speak without an attorney.

On February 26, 1996, the Appellate Division affirmed the conviction, concluding that petitioner's right to counsel had been violated, but the error was harmless. The court held that the statements petitioner made after invoking his right to counsel should have been suppressed because they were not "spontaneous" under New York law. See People v. Harvey, 224 A.D.2d 713 (2d Dept. 1996) (citing, inter alia, People v. Lucas, 53 N.Y.2d 678 (1981)). The court held the error to be harmless beyond a reasonable doubt, however, because of the other evidence proving petitioner's guilt and disproving his insanity. See id. at 713-14. It noted that it was undisputed, "especially through the defendant's oral admission made before he requested counsel," that petitioner had deliberately set the fire. See id. at 713-14. The evidence also showed that petitioner was aware that people were present in the house when he set the fire because he had jumped from a window on the second floor, where Theresa and Julian Harvey were sleeping and were later found dead in their beds. In addition, petitioner had admitted to one of his psychiatrists that he ran through all the floors of the house after he set the fire. See id. Even though the trial court had partially relied on the written statement to reject petitioner's insanity defense, the Appellate Division found that the testimony of an examining psychiatrist (that petitioner did not lack substantial capacity to know that (a) he was setting a fire; (b) the fire could injure anyone in the building; and (c) that conduct was wrong) established that petitioner was not insane when he set the fire. The court also noted the trial court's reliance on petitioner's failure to mention his alleged hallucinations and delusions to his friend Wilbert Gray, whom he had called immediately after the fire, to the doctors at the hospitals where he was treated after the fire, or to Garner in any of his statements. Rather, petitioner first claimed that he had hallucinations and delusions more than a year and a half after the fire, when he was preparing for trial. The court concluded that, "even without resort to the statements which he made subsequent to requesting counsel, the defendant failed to prove by a preponderance of the evidence that he lacked criminal responsibility for his acts by reason of mental disease or defect." Id. at 714 (citations omitted).

In letters dated March 12, 1996, and April 8, 1996, petitioner applied for leave to appeal to the New York State Court of Appeals, arguing that harmless error analysis should not be applied when evidence is erroneously admitted at a bench trial and the trial court relies on that evidence in its written verdict. On May 13, 1996, Judge Richard D. Simons denied petitioner's application for leave to appeal. See People v. Harvey, 88 N.Y.2d 879 (1996). Petitioner sought a writ of certiorari from the United States Supreme Court. On March 17, 1997, the Supreme Court denied the petition. See Harvey v. New York, 520 U.S. 1121 (1997).

In October of 1997, petitioner filed a motion for a writ of errorcoram nobis in the Appellate Division, claiming that he had received ineffective assistance of appellate counsel because there were a number of issues that appellate counsel had failed to address on petitioner's direct appeal. First, petitioner claimed that counsel should have raised a federal constitutional claim with respect to petitioner's written confession, and the failure to do so resulted in (a) the Appellate Division's determination that any error was harmless; (b) the New York Court of Appeals' decision to deny leave to appeal; and (c) the United States Supreme Court's decision to deny certiorari. Second, petitioner alleged that appellate counsel erred in not challenging the admission of uncharged crimes evidence at trial without the benefit of a hearing under People v. Ventimiglia, 52 N.Y.2d 350 (1981). Third, he claimed that appellate counsel unreasonably failed to challenge the admissibility of opinion testimony of the People's expert psychiatric witness, Dr. Lawrence Siegel. Fourth, petitioner argued that appellate counsel should have challenged the admission of Dr. Siegel's testimony on hearsay grounds.

In a decision and order dated February 2, 1998, the Appellate Division denied petitioner's application for coram nobis relief. See People v. Harvey, 247 A.D.2d 407 (2d Dept. 1998). Citing Jones v. Barnes, 463 U.S. 745 (1983), the court held that petitioner had failed to establish that he was denied the effective assistance of appellate counsel.

Next, petitioner filed a motion to vacate his judgment of conviction pursuant to § 440.10, which was dated March 17, 1998. In his N.Y. CPL motion, he claimed that he received ineffective assistance of counsel at trial. In support of his claim, petitioner argued that trial counsel did not (a) request a Ventimiglia hearing with respect to evidence of certain uncharged crimes or bad acts (specifically, that petitioner had broken his wife's jaw and had threatened to burn down the house) introduced on the People's direct case; (b) object to Dr. Siegel's rebuttal testimony that petitioner gave unreliable and inconsistent accounts of the events surrounding the fire; (c) object to Dr. Siegel's reliance on hearsay in forming his expert opinions; and (d) present a claim to the trial court that petitioner's confession was inadmissible because it had been obtained after petitioner invoked his right to counsel.

In a memorandum decision dated May 28, 1998, Justice Demakos denied the motion. The court found that petitioner's claims were procedurally barred from review as a result of petitioner's failure to raise them on direct appeal, and that they were without merit. Petitioner sought leave to appeal to the Appellate Division, which was denied on September 9, 1998.

The Instant Petition

In the instant petition, Harvey raises the following four claims: (a) that his conviction was obtained by the use of his involuntary confession; (b) that the use of those statements cannot be deemed harmless error in a bench trial in which the trial judge's written decision identified these statements as the best evidence for the verdict; (c) that he was denied the effective assistance of appellate counsel; and (d) that he was denied the effective assistance of trial counsel.

DISCUSSION The Standard of Review

When a habeas court is considering a claim that was decided on the merits in a state court proceeding, it may grant relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The two clauses of this provision have independent meaning. Williams, 529 U.S. at 404-05. Under the first clause, a state court decision will be considered "contrary to" federal law if it either "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 405-06.

Under the second clause, a habeas petitioner may win relief if the state court decision "identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. The habeas court's determination that the state court wrongly decided the case is a necessary, but not a sufficient, condition to relief under this provision. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also id. at 412 (explaining that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law"); id. at 409 (holding that the standard is one of "objective" reasonableness). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence."Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted.). This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. See Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001).

B. Petitioner's Confession

Petitioner argues (1) that the admission of his written statement at trial violated his Fifth and Fourteenth Amendment right not to be convicted based on a coerced confession, and (2) that the trial court's error was not a harmless one. I will address each in turn.

1. The Exhaustion Requirement

Petitioner's federal constitutional claim — that the admission of his statement violated his right against self-incrimination — is procedurally barred because it has not been exhausted in state court. Before a federal court can grant a petition for a writ of habeas corpus, the petitioner must exhaust all available state judicial remedies. See 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.") (citing Ex parte Royall, 117 U.S. 241 (1886)). In order to exhaust state remedies, a petitioner must fairly present his federal constitutional claims to the highest state court. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999). This exhaustion requirement ensures, as matter of comity, that state courts have an opportunity to correct any violations of the federal constitutional rights of prisoners within their jurisdiction before the claims are reviewed by federal courts. See id. at 844; Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

To exhaust federal constitutional claims, a prisoner must fairly present to the state court the same federal constitutional claims, legally and factually, as he raises in his petition to the federal court. See O'Sullivan, 526 U.S. at 845-47; Daye, 696 F.2d at 191. Even if a petitioner raises precisely the same legal claim in state and federal proceedings, reliance in the two proceedings upon different factual grounds that "fundamentally alter the legal claim already considered by the state courts" will foreclose a conclusion that the claim is exhausted. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

The exhaustion doctrine "requires only that a petitioner present his claim once on direct or collateral review." Sanford v. Senkowski, 791 F. Supp. 66, 69 (E.D.N.Y. 1992); See also Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir. 1977). Therefore, even if a claim is not raised at trial or on direct appeal, a claim pursued throughout a full round of state post-conviction proceedings is exhausted. See 2 J. Liebman R. Hertz, Federal Habeas Corpus Practice and Procedure § 23.3b, at 671 (1994) (citing Castille v. Peoples, 489 U.S. 346, 350-51 (1989)).

Here, neither petitioner's Appellate Division brief nor his application for leave to appeal to the New York Court of Appeals raised his claim of a coerced confession. In both courts, petitioner alleged only that the admission of his statements violated the state law. Similarly, in hiscoram nobis petition and his § 440 motion, petitioner failed to raise this federal constitutional claim. Indeed, in his coram nobis petition, he argued that appellate counsel was ineffective for failing to raise the claim on direct appeal, essentially conceding that the claim was unexhausted at that time. Likewise, in his § 440 motion, petitioner contended that trial counsel was ineffective for failing to preserve the claim at the suppression hearing. Under the standard set forth in Daye, petitioner did not present his Fifth Amendment claim to the state courts, and therefore he has failed to exhaust his claims.

There are currently no means by which petitioner can present this unexhausted claim to the state's highest court because (1) "sufficient facts appear on the record of the proceedings underlying the judgment" to have permitted petitioner to raise these claims on direct appeal, N.Y. CPL § 440.10(2)(c); and (2) petitioner has "already made the one request for leave to appeal to which he is entitled." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing N.Y. Court Rules § 500.10(a)). Since the New York courts would find these unexhausted claims procedurally barred from review, they are deemed exhausted here. See id. (citing Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989) ("[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state would hold the claim procedurally barred.")).

Under these circumstances, a federal court may review the procedurally defaulted claims on their merits only if the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that the court's refusal to consider the claims would result in a miscarriage of justice. See Coleman, 501 U.S. at 750; Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). The petitioner can prove "cause" by demonstrating that "some objective factors external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Coleman, 501 U.S. at 752-53. A showing that "the factual or legal basis for a claim was not reasonably available to counsel," for example, or that "some interference by state officials made compliance impracticable," may demonstrate cause. Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Murray, 477 U.S. at 488), cert. denied, 514 U.S. 1954 (1995). To meet the prejudice requirement, the petitioner "must show `not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (alteration in original) (quoting United States v. Frady, 456 U.S. 152, 166 (1982)).

Petitioner has not alleged the existence of factors that constitute cause. Moreover, the reason this coerced confession claim was never raised in state court is obvious from the petitioner's own statements. He never asserted facts that could amount to coercion. As he put it in his letter to counsel dated April 12, 1995 (attached as Exhibit A to the 63-page memorandum submitted in support of the petition),

My statement to police should have been suppressed at the Huntley hearing because I requested an attorney — thus invoking my Right to Counsel — before the statement was made. While I was locked in the cell — handcuffed and barefoot on the cold floor — the police were typing up their reports formally charging me with Murder 2x et al. They were engaged in a conversation on these charges, which they wanted me to hear. It was these conversations which led me to believe that they were not going to "scrupulously honor" my request for an attorney. After 20 minutes of hearing this conversation — and seeing that no attempt was being made to contact an attorney for me — I called out and said, "I'll tell you what you want to hear'. I was suffering from Major Depression at the time; and since the police did not scrupulously honor my request for an attorney — my statement was neither voluntary nor spontaneous, and therefore should have been suppressed (See: People v. Cunningham, 424 N.Y.S.2d 421; People v. Grant, 408 N.Y.S.2d 429; People v. Ringer, 1988, 528 N.Y.S.2d 674).

Because I was in the least (sic) suffering from "extreme emotional disturbance" at the time of making the inculpatory statement, I am not sure how much of the statement is truth and how much of it is assumption, conjecture and indoctrination based on the conversations of the police which I had overhead. Still to this day, I am not 100% sure if my accounts of what happened are what really happened if they are the accounts of other people's assumptions and interpretations which have related to me and I accepted this as truth and related them as such.

As pointed out by appellate counsel's letter to petitioner dated July 2, 1996, which is attached as Exhibit B to the same memorandum, no federal claim was made because the facts would not support one. The mere fact that petitioner had not seen a lawyer for 20 minutes after invoking his Miranda rights does not mean that he was coerced when he "called out and said, `I'll tell you what you want to hear.'" Rather than pursue a baseless federal claim of a coerced confession, appellate counsel pursued the New York State right to counsel claim. This was astute advocacy, as the Appellate Division found that claim to have merit, although it further found the error to be harmless.

Not only was there no cause for the default, there was no prejudice either. The federal claim had no merit; there was not even a hint of coercion in the procurement of the written confession. Even if there were, the state court's finding that the use of the confession was harmless beyond a reasonable doubt was clearly correct. Petitioner confessed to Garner even before he exercised his Miranda rights. Moreover, as the Appellate Division noted, other evidence contributed to the court's finding of petitioner's guilt and absence of insanity. See Harvey, 224 A.D.2d at 714.

The "Harmless Error" Claim

Petitioner claims in Point II of his memorandum that the improper use of involuntary statements can never be harmless error in a bench trial where the fact-finding judge explicitly relies on the challenged statements. This claim has no merit.

First, as discussed above, this case does not involve "involuntary" statements. The only right of which petitioner was deprived was the New York State "indelible" right to counsel. A claim asserting a violation of state law is not cognizable in a petition seeking federal habeas relief.

Second, even if the use of the written confession violated federal law, the state court found that the use of that evidence (which, it found, violated state law) was harmless beyond a reasonable doubt. I agree with that conclusion. At the very least, it cannot reasonably be characterized as an unreasonable application of that standard.

C. Ineffective Assistance of Appellate Counsel

Petitioner claims that his appellate counsel was ineffective because he failed (1) to challenge the admission of petitioner's confession on Fifth Amendment grounds; (2) to argue that uncharged crimes evidence was improperly admitted in the absence of a Ventimiglia hearing; (3) to argue that the People's psychiatric expert gave improper opinion testimony; and (4) to challenge the admission of the psychiatric expert's testimony, which was based in part on hearsay.

Petitioner's claim fails because the state appellate court determined that petitioner's counsel was effective, and that determination was neither contrary to nor an unreasonable application of federal law. Indeed, I agree with it entirely. See Jones v. Barnes, 463 U.S. 745 (1983). To the extent the claim is based on counsel's failure to raise the Fifth Amendment claim, it fails because, as set forth above, there was no Fifth Amendment violation. Appellate counsel's failure to seek reversal on the groung that a Ventimiglia hearing should have been held is simply absurd. Petitioner was charged with murdering his wife by burning down the house. The evidence at issue was that he had previously (1) broken his wife's jaw during an argument; and (2) threatened to burn down the house. A motion to preclude such evidence, which plainly was admissible to prove petitioner's motive and intention to commit the crime, would have been frivolous.

Finally, appellate counsel's decision not to press unfounded challenges to unobjectionable expert testimony did not deprive petitioner of his right to effective counsel.

Ineffective Assistance of Trial Counsel Claim

Following the Appellate Division's denial of petitioner's writ of errorcoram nobis, petitioner filed a motion to vacate his judgment of conviction pursuant to CPL § 440.10, asking that his judgment be set aside on account of his having been denied the effective assistance of trial counsel. Petitioner claimed that his counsel (1) had not requested a Ventimiglia hearing or objected to the admission of uncharged crimes evidence; (2) had not objected to Dr. Siegel's rebuttal testimony; and (3) had failed to raise a claim during trial that petitioner's confession was taken in violation of his right to counsel and was therefore, inadmissible. That motion was denied in a decision dated May 28, 1998. Petitioner now raises the same ineffective assistance of trial counsel claim in this habeas petition.

Petitioner is procedurally barred from raising a claim of ineffective assistance of trial counsel because he failed to pursue that claim on direct appeal. See supra (discussing petitioner's Fifth Amendment claim). As noted by the Appellate Division in its decision, petitioner's claim is based in facts that were part of the trial record, and available to him at the time of his direct appeal. See decision of the Appellate Division, dated May 28, 1998; see generally Daye, 696 F.2d at 190 n. 3 (stating that an applicant "shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section [2254(b) and (c)], if he has the right under the law of the State to raise, by any available procedure, the question presented"). Petitioner has not shown cause for his procedural default or that prejudice or a fundamental miscarriage of justice would result, and he is therefore unable overcome the procedural bar. See Murray, 477 U.S. at 492. Nor can petitioner succeed on the merits of his claim, as he has not shown that the trial counsel's conduct was ineffective. The decision not to seek a Ventimiglia hearing was sound, as stated above. The decision not to assert that the written confession was involuntary was compelled by petitioner's own version of the facts. The failure to make evidentiary challenges to the psychiatric testimony no doubt reflects trial counsel's correct judgment that those challenges would have had no merit.

CONCLUSION

For the foregoing reasons, the petition is denied. Because the petitioner fails to make a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue.

So Ordered.