Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:
1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.
Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one’s clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained
We have previously held that if a defendant’s leave application presents his claims in such a way that “eliminate[s] issues as to which review had been expressly requested,” Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant’s leave application “clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief,” the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but “expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant’s [attached] brief.'” Morgan, 204 F.3d at 370-71 (citing defendant’s letter application).In this case, Harris’s leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that “this Court consider and review all issues outlined in appellant’s [Appellate Division] brief.” (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press “all” of the issues he had presented to the Fourth Department, including his affirmative defense claim.
