Applications for leave to appeal to the New York Court of Appeals from a decision and order of an intermediate appellate court affirming a conviction often focus on the issue or issues which are most likely to appear worthy of the attention of the Court of Appeals. As that Court’s website explains, those are significant and yet unresolved issues, such as those in  in which the law is not well settled, or involve the impact in New York of a recent decision of the United States Supreme Court (see, The New York State Court of Appeals Criminal Leave Application Practice Outline, IX(B)).
    Yet, it is possible that the briefs below also raised other meritorious issues, including federal constitutional issues, as to which the law is not as unsettled, and are thus, not as likely o be the basis for a grant of leave to appeal. In drafting applications for leave to appeal, counsel needs to be careful to also raise these federal constitutional issues in the leave application, since failure to do so will preclude a client’s right to federal habeas corpus review of these meritorious issues.
    Federal statute expressly provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State” (28 U.S.C. § 2254(b)(1)(A)).  Interpreting this provision, the Supreme Court has held that claims not submitted to the state’s court of last resort in a petition for discretionary review are deemed to be procedurally defaulted (O’Sullivan v. Boerckel, 526 U.S. 838, 843-48 (1999)). Thus, counsel should draft the leave application to clearly submit all federal claims raised below.
    A claim will be deemed exhausted when: (1) the petitioner fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (2) petitioner has presented his claim to the highest state court which can hear his claim. (Baldwin v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845-48). A claim is exhausted if it has been “fairly presented” to the state court. (Daye v. Attorney Gen of N.Y., 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
    The Court of Appeals for the Second Circuit has long recognized that state “courts may be alerted to the constitutional nature of a claim in a number of ways.” (Daye, supra, at 193. Thus, there is no requirement that in the state court proceeding the petitioner cite the provisions of the United States Constitution which were violated.  The Second Circuit had repeatedly held that a state defendant may fairly present to the state courts the constitutional nature by

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.  

(Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011); Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (finding petitioner had fairly presented his claim to the state court because “the substance of the federal habeas corpus claim [was] clearly raised and ruled on in state court” even though petitioner had failed to explicitly name it as a federal claim)).

    Compliance with these holdings can depend on how one phrases the leave application. Applying these rules, the Second Circuit has held that a petitioner had not fairly presented his claims to the Court of Appeals when the leave letter argued “a single claim at length and [made] only [a] passing reference to possible other claims to be found in the attached briefs.” (Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000)).  In Jordan, after  a thorough presentment of a Batson claim, the leave application urged the court to grant leave to appeal “[f]or all of these reasons and the reasons set forth in [petitioner’s] Appellate Division briefs.” (Id.)  The Second Circuit held that this letter did not “fairly present” other claims in the Appellate Division briefs to the Court of Appeals because the letter’s concluding language “might as easily have been a reference to additional reasons for reviewing the Batson claim as an incorporation of other, different claims asserted in the lower court.” (Ramirez v. Attorney Gen. of N.Y., 280 F.3d at 87, 97 (2d Cir.2001) (explaining Jordan’s rationale).
    Critically, and in contrast, to the holding in Jordan, the Second Circuit held in Morgan v Bennett,  204 F.3d 360, 369-70 (2d Cir. 2000), that a leave application which expressly urges that the Court “ review all issues outlined in defendant-appellant's brief and pro se supplemental brief” was “sufficiently specific to alert the Court of Appeals that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief.”
    Thus, the explanation for the difference in the holdings in Jordan and Morgan appears to be that the leave application in Morgan, while concentrating on one issue, expressly sought review of all other issues, while the leave application in Jordan, instead of expressly seeking review of the other issues, stated that Jordan was seeking review “[f]or all of these reasons and the reasons set forth in his Appellate Division briefs...” It appears that if counsel in Jordan had sought review of all of the other “issues” raised in the Appellate Division briefs,  instead of employing the more ambiguous phrase “the reasons set forth in his Appellate Division briefs” the exhaustion requirement would have been satisfied for all of the issues raised below.
    Consequently, a simple way to avoid exhaustion problems in leave applications is to include the sentence “Pursuant to O’Sullivan v Boerckel (526 U.S. 838 [1999]), it is expressly urged that leave to appeal be granted to review all issues raised in the briefs filed with the intermediate appellate court.”