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July 29, 1987

Charles Patterson, Petitioner
Howard Beyer, et al., Respondents

Robert E. Cowen, District Judge.

The opinion of the court was delivered by: COWEN

Charles Patterson, currently incarcerated at Trenton State Prison, petitions this court for a writ of habeas corpus. The petition was referred to a United States Magistrate for a Report and Recommendation. The Magistrate recommended that the court find that petitioner had exhausted his state remedies and deny the petition on the merits. Petitioner has submitted objections to the Magistrate's Report and Recommendation. For the reasons that follow, the petition is dismissed for failure to exhaust state remedies.

 On September 1, 1983, petitioner was convicted of various crimes, including armed robbery. Before this court, he makes three arguments. First, he contends that Count 3 of the indictment failed to charge an offense under New Jersey law, and thus he stands convicted of a "non-offense" in violation of the due process clause of the Fourteenth Amendment. Second, he contends that Count 3 of the indictment omitted essential elements of the offense of robbery, making it possible that the grand jury failed to consider each element of the offense, and thus he was deprived of the protections of the grand jury in violation of the Fifth and Fourteenth Amendments. Third, he contends that Count 3 of the indictment was so deficient as to deprive him of his right under the Sixth Amendment to be apprised of the charges against him.

 The essence of all three claims is that the Count 3 of the indictment alleged that petitioner committed "an act of robbery upon The Merit Gas Station," rather than an act of robbery upon a person.

 28 U.S.C. 2254 (d) requires that a petitioner for a writ of habeas corpus exhaust his state remedies. In order to meet this requirement, a petitioner must fairly present the substance of his federal claim to the state court. "It is not enough that all facts necessary to support the federal claim were before the state court or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (per curiam) (citation omitted).

 In this case, it is clear that petitioner did not explicitly raise any federal claims in state court. Instead he made two primary arguments on appeal: First, he argued that Count 3 failed to state an offense under New Jersey law. Second, he argued that his sentence was excessive. *fn1"

 No provision of the Federal Constitution was cited by petitioner nor was a single federal case cited. A reading of petitioner's briefs in state court demonstrates that his argument was based solely on state law.

 If this court were writing on a clean slate, it would agree with Judge Graafeiland that, at a minimum, it must be clear that the petitioner raised a federal claim in state court. Daye v. Attorney General of New York, 696 F.2d 186, 199 (2d Cir. 1982) (Graafeiland, J., dissenting); see also Thomas v. Wyrick, 622 F.2d 411 (8th Cir. 1980). A petitioner should not be considered to have exhausted his state remedies unless he has in some way called the attention of the state court to a federal claim.

 There are at least three important reasons for this. First, it is ordinarily poor jurisprudence for a court to rule on a claim not made. *fn2" The rules of exhaustion should not be framed so as to make it necessary for state courts to violate this principle of jurisprudence. If we are serious about federalism, state courts should be allowed to rely on their own laws, including their constitutions, without a federal court insisting that they also decide federal issues which the parties have not raised.

 Second, there may be strategic reasons why a criminal defendant may choose to rely on state law rather than federal law, such as insulating the case from review by the United States Supreme Court. See Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). If the defendant raises only state law claims and the state court decides only the claims raised, the United States Supreme Court cannot review the decision. It would be incongruous to allow a criminal defendant to insulate favorable decisions from federal review but nevertheless afford him a forum in federal district court -- based on an omitted federal claim -- should his gamble in the state court not pay off.

 Third, the rules governing exhaustion must be fashioned not only for the many non-meritorious petitions, but also for the few meritorious petitions. As Judge Graafeiland has explained:

A district judge who is forced to assume that State court judges have considered a [federal] constitutional claim, must also assume that the State court judges have silently rejected it. Should the district judge grant a writ under such circumstances, he will be telling the State court judges in substance that he assumes they were smart enough to spot a [federal] constitutional question but not smart enough to answer it correctly. This, I suggest, is not comity.

 Daye, 696 F.2d at 199 (Graafeiland, J., dissenting).

 The Third Circuit Court of Appeals, however, has held that a failure "to invoke a specific constitutional provision in [petitioner's] state court briefs . . . will not preclude a finding of exhaustion where 'the substance of the . . . state claim is virtually indistinguishable from the [constitutional] allegation' raised in federal court." Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982) (quoting Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 66 L. Ed. 2d 504, 101 S. Ct. 622 (1980)). It appears that all that is required in this circuit is that the claims presented to the state court be the "substantial equivalent" of those ...

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