dissenting:
I respectfully dissent.
Although the majority correctly observes that “[t]he federal courts have no general power to compel action by state officials,” Davis v. Lansing, 851 F.2d 72, 74 (2d Cir.1988), they are nevertheless “persuaded” that habeas jurisdiction is proper because, under the Second Department’s Rules, “Fullan is not permitted to perfect his appeal without including the trial transcript in his record on appeal.” I am unpersuaded.
Federal courts have jurisdiction to entertain a petition for a writ of habeas corpus “only on the ground that [the prisoner] is in custody in violation of the Constitution or laws ... of the United States.” 28 U.S.C. § 2254(a) (emphasis added); see Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S.Ct. 1827, 1834 n. 7, 36 L.Ed.2d 439 (1973) (“traditional meaning and purpose of habeas corpus [is] to effect release from illegal custody”). However, Fullan’s petition challenges neither the constitutionality nor the legality of his incarceration. Instead, Fullan seeks from the federal court only what he failed to obtain from the New York state courts — a copy of his trial transcript at state expense. I cannot conclude that at this time Fullan’s “custody” is even arguably in violation of the Constitution or laws of the United States within the meaning of section 2254. Therefore, I do not believe that habeas jurisdiction is present.
Assuming that habeas jurisdiction is proper in this case, Fullan fails to meet another requirement for relief. He must exhaust available state remedies as a necessary prerequisite to applying for federal habeas corpus relief. 28 U.S.C. § 2254(b). We have adopted a two-stage inquiry for determining whether the requisite exhaustion has occurred. First, the identical federal constitutional claim urged upon the federal habeas court must have been “fairly presented” to an appropriate state court. Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir.1982) (in banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984); Klein v. Harris, 667 F.2d 274, 282 (2d Cir.1981). While somewhat regimented, this rule requires that the petitioner must have informed the state court of both the factual and legal premises of the claim he asserts in federal court. *1013Daye, 696 F.2d at 191-95; see Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). Second, upon being denied relief on his federal constitutional claim in an appropriate state court, the petitioner must have utilized all available mechanisms to secure appellate review. Klein, 667 F.2d at 282; see 28 U.S.C. § 2254(c).
Fullan satisfied the second prong of the exhaustion test when he sought leave to appeal to the New York Court of Appeals. He has not, however, “fairly presented” his federal constitutional claim to the New York state courts as required under the first prong of the test. Notwithstanding the district court’s assertion to the contrary, the papers submitted to the Appellate Division on Fullan’s behalf did not cite to the United States Constitution, any provisions thereof, or to any federal statute. Without case citation or constitutional analysis Fullan’s counsel nebulously argued to the Appellate Division only that “under the appropriate decisions of the Supreme Court of the United States and of [New York], this motion should be granted without delay.” The majority apparently construes petitioner’s bare reference to “decisions of the Supreme Court of the United States” as sufficient to fairly present all federal constitutional claims. I do not. See, e.g., Taylor v. Scully, 535 F.Supp. 272 (S.D.N.Y.1982) (holding mere reference to “principle[s] of due process” insufficient to present constitutional claim).
Furthermore, even assuming that Fullan has exhausted his state court remedies, I cannot conclude that Second Department Rule § 671.3(b)(3) transgresses either equal protection or due process guarantees. As written, section 671.3(b)(3) links an appellant’s ability to retain counsel with his ability to pay the expenses incidental to an appeal — not an unreasonable relationship. Upon the requisite proof of an appellant’s financial inability to retain counsel, the rule specifically allows either appellant’s assigned counsel or appellant, if proceeding pro se, to receive a trial transcript at state expense. Retained counsel, however, is prohibited from receiving a transcript without charge. Facially, this dichotomy does not run afoul of Fourteenth Amendment guarantees. Section 671.3(b)(3) is “free of unreasoned distinctions,” Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966) (emphasis added), and attempts to provide indigents with an “adequate opportunity to present their claims fairly within the [appellate] system,” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444-45, 41 L.Ed.2d 341 (1974). See Griffin v. Illinois, 351 U.S. 12, 16-19, 76 S.Ct. 585, 589-90, 100 L.Ed. 891 (1956) (plurality opinion).
In applying section 671.3(b)(3), the Appellate Division merely attributed to Fullan the non-contingent benefactions of others in determining whether “his financial inability to retain counsel and to pay the costs and expenses of the appeal” necessitated the provision of transcripts at state expense. Echoing the apparent sentiment of the Appellate Division, the district court concluded that “Fullan, whose family and friends have raised $10,000 for his appeal, is in no different a position than the defendant who has $10,000 of his own money to spend on appeal.” I agree. While every defendant who retains appellate counsel would undoubtedly prefer that the state foot the bill for the trial transcript, the Constitution simply does not require a state to provide a free transcript to a defendant who has access to substantial funds for purposes of appeal. Thus, while Fullan apparently is personally financially unable to retain counsel, the application of section 671.3(b)(3) to him in his circumstances cannot rationally be said to foreclose his right to appeal.
Fullan is not barred from receiving a transcript at state expense. He simply can’t get one on his own terms. Furthermore, Fullan is under no compulsion to accept private representation, but may apply for assigned counsel pursuant to N.Y. County Law § 722(4) (McKinney Supp. 1989) and N.Y.Crim.Proc.Law § 460.70 (McKinney 1983). Upon the assignment of counsel, a transcript of the lower court proceedings will be furnished without charge. Having voluntarily accepted private representation, Fullan’s contention that he was financially unable to retain *1014counsel and therefore should be provided with a transcript at state expense has a hollow ring. It is inconceivable that family and friends who have raised $10,000 for Fullan’s appeal would restrict the use of those funds to the payment of counsel fees if they knew that the appeal could not be perfected without a trial transcript. An offer of assistance subject to such a restriction would be empty and self-defeating. An interpretation of section 671.3(b)(3) that equates Fullan’s situation with that of an indigent hardly compliments the constitutional protections for indigent criminal appellants under the Fourteenth Amendment.
Finally, the rule espoused by the majority today invites widespread abuse. There is nothing to prevent supporters of criminal appellants from raising $25,000, $50,000 or $100,000 for a defense fund expressly limited to paying “attorney’s fees” only for a more expensive criminal defense lawyer. The majority’s holding will also require the Appellate Division to engage in detailed factfinding regarding the source of an appellate attorney’s fee and, potentially, the complicated financial relationships that might exist between defendants and their benefactors. This, the Constitution does not require. I would affirm the judgment of the district court.