Appeals did not identify the claims for which he sought review.
See N.Y. Court Rules § 500.10(a) (requiring counsel to
"identify the issues on which the application is based").
Instead, his attorney merely made reference to the fact that he
had enclosed the Appellate Division briefs and stated that a
further letter would follow. See Letter App., Exhibit 5 to
The mere inclusion of appellate briefs in an application for
leave to appeal to the Court of Appeals, without more, does not
"fairly present" a petitioner's constitutional claims to that
court for purposes of the exhaustion requirement. As noted, the
Court of Appeals rules specifically require that a party
"identify the issues" sought to be raised. N.Y. Court Rules §
500.10(a) Counsel's letter in this case identified no such
issues. While counsel enclosed a copy of the Appellate Division
briefs, this action could not have alerted the Court of Appeals
that counsel was proposing to raise the issues contained therein
for two reasons. First, the Court of Appeals requires that all
applications seeking leave to appeal include a copy of the
briefs filed in the Appellate Division. See N.Y. Court Rules §
500.10(a). Thus, the act of enclosing briefs is not an unusual
event that might put the Court of Appeals on notice that the act
had any significance with respect to the issues sought to be
raised. Second, counsel's letter had specifically stated that a
further letter would follow in support of the application for
leave to appeal. See Letter App., Exhibit 5 to Respondent Aff.
Because of this statement, the Court had no reason to believe
the application was complete and thus presented even the issues
contained in the briefs.
Second Circuit case law provides guidance in this regard. In
Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), the petitioner had
identified one claim in his leave to appeal letter to the New
York Court of Appeals and also attached his Appellate Division
briefs, which raised three issues including the one specified in
the letter. 933 F.2d at 120. The Second Circuit held that the
claims raised in the briefs were not exhausted, except for the
one claim raised in the appeal letter. Id. at 120. The Second
Circuit reasoned that the New York Court of Appeals was not
alerted that all the claims in the briefs were being raised and
refused to require the Court to "look for a needle in a paper
haystack." Id. at 120 (quoting Mele v. Fitchburg Dist. Ct.,
850 F.2d 817, 822 (1st Cir. 1988)); accord Jordan v. Lefevre,
206 F.3d 196, 198-99 (2d Cir. 2000) ("Counsel may not transfer
to the state courts the duty to comb through an applicant's
appellate brief to seek and find arguments not expressly pointed
out in the application for leave.").
Following this ruling, one court has held in a situation
virtually identical to Alston's that there can be no exhaustion
of any issue where the "letter requesting leave to appeal to the
New York Court of Appeals did not identify any issues, and
stated only that the appellate brief was attached." Black v.
McGinnis, 2001 WL 209916, at *3 (S.D.N.Y. March 1, 2001). More
recently, in Ramirez v. Attorney General, 280 F.3d 87 (2d Cir.
2001), the Second Circuit stated: "[r]eferences to attached
briefs without more will preserve issues only if the Court of
Appeals is clearly informed that the reference is asserting
issues in those briefs as bases for granting leave to appeal."
280 F.3d at 96 (emphasis added). Had appellate counsel actually
asked the Court to review the claims contained in the briefs,
that certainly would have satisfied the exhaustion requirement.
See Morgan v. Bennett, 204 F.3d 360, 369-70, 371 (2d Cir.),
cert. denied, 531 U.S. 819, 121 S.Ct. 59, 148 L.Ed.2d 26
(2000). Here, however, the New York Court of Appeals was never
informed that the issues contained in
Alston's briefs were being asserted as bases for granting leave
As discussed in detail in Bossett v. Walker, 41 F.3d 825,
829 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct.
1436, 131 L.Ed.2d 316 (1995), Alston is now barred from making
any additional leave application because Alston's application
for leave to appeal has already been denied by the New York
Court of Appeals. See New York Court Rules § 500.10(a) (only
one application available for leave to appeal to Court of
Appeals). He also is foreclosed from bringing these claims in
the state courts as a collateral attack on his conviction
because the claims could have been raised (and indeed were
raised) on direct appeal. See New York Criminal Procedure Law
When petitioners fail to "fairly present" their claims to each
level of the state courts to which they are entitled to seek
relief, but are thereupon foreclosed from doing so by a state
procedural rule, the petitioners' claims are deemed exhausted
for purposes of federal habeas review. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 731-32, 735 n. 1, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.
1997); Bossett v. Walker, 41 F.3d at 828-29; Grey v. Hoke,
933 F.2d at 120-21. However, "[t]he procedural bar that gives
rise to exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and thus
prevents federal habeas corpus review of the defaulted claim."
Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135
L.Ed.2d 457 (1996). The petitioner cannot obtain federal habeas
review of the merits of the claim "unless the habeas petitioner
can show cause for the default and prejudice attributable
thereto, or demonstrate that failure to consider the federal
claim will result in a fundamental miscarriage of justice."
Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d
308 (1989) (citations and internal quotation marks omitted);
accord Murray v. Carrier, 477 U.S. 478, 497-98, 106 S.Ct.
2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72,
72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Bossett v. Walker,
41 F.3d at 829; Washington v. James, 996 F.2d 1442, 1447 (2d
The only cause offered by Alston for his failure to exhaust is
one: that his appellate counsel failed to make a proper
application for leave to appeal to the Court of Appeals. Alston
thus blames his failure to exhaust remedies on the "unreasonable
and prejudicial practice of the . . . state appointed attorneys
who prepare and file leave to appeal applications." He alleges
that these "attorneys  do not adhere to the rules and
procedures mandated by the [New York Court of Appeals]" and that
"[Alston's] counsel [also] circumvent[ed] court rules and
procedures" by failing to submit a follow-up letter. See
Memorandum of Law in Support of Petitioner's Application for a
Writ of Habeas Corpus, dated January 4, 2002, at 5, 7, 8.
While the attorney's conduct in this matter certainly
constitutes an explanation for Alston's failure to exhaust his
State remedies, that does not mean that it constitutes "cause"
for purposes of habeas corpus jurisprudence. This is because
Alston had no federal constitutional right to counsel for his
discretionary appeal to the Court of Appeals (even though a
proper motion for leave to appeal is a prerequisite for the
exhaustion of State remedies). The argument that an attorney's
misconduct in pursuing a nondiscretionary appeal may constitute
"cause" excusing a procedural default has been foreclosed by the
Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
In Coleman, the defendant had been convicted of rape and
murder and was sentenced to death. Id. at 727, 111 S.Ct. 2546.
Following the affirmance of his conviction on direct appeal, he
filed a State habeas corpus petition raising various new federal
constitutional claims, which was denied on the merits. Id. The
defendant then filed a notice of appeal with the intermediate
State appellate court that was 3 days late and the state habeas
appeal was therefore dismissed. Id. In his federal habeas
petition, the defendant attempted to excuse the failure to
exhaust his State remedies on the ground that there was "cause"
for his default: specifically that the late filing of the notice
of appeal was the result of attorney error. Id. at 752, 111
S.Ct. 2546. Recognizing that the late filing "was no doubt an
inadvertent error" and that the defendant did not
"`understandingly and knowingly' forgo the privilege of state
collateral appeal," id. at 749, Coleman nonetheless found
that the defendant had not provided "cause" to excuse the
failure to exhaust. Coleman squarely held that "counsel's
ineffectiveness will constitute cause only if it is an
independent constitutional violation." Id. at 755, 111 S.Ct.
2546. Because there is "no constitutional right to an attorney
in state post-conviction proceedings," Coleman held that the
defendant's attorney could not be "constitutionally"
ineffective. Id. at 752, 111 S.Ct. 2546. As a result, the
claims in the State habeas petition were procedurally barred.
Id. at 757, 111 S.Ct. 2546.
Here, Alston may well be able to show that his attorney's
performance was ineffective. The problem is that, just as in
Coleman, there is no constitutional right to the effective
assistance of counsel with respect to the act that Alston's
attorney was called upon to perform: the filing of a
discretionary appeal. See Ross v. Moffitt, 417 U.S. 600,
610-11, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); accord
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987). This case is thus materially
indistinguishable from Coleman and this Court is constrained
to hold that Alston's claims are procedurally barred. The only
decision addressing this question of which this Court is aware
has come to the same conclusion. See Veras v. Strack,
58 F. Supp.2d 201, 206-210 (S.D.N.Y. 1999).
In sum, because Alston has not established a permissible
"cause" for the failure to exhaust his state court remedies and
because nothing in his papers shows a fundamental miscarriage of
justice (i.e., actual innocence), his petition is barred from
Alston's petition should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties have ten (10) days
from service of this Report to file any written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
extra copies delivered to the chambers of the Honorable Sidney
H. Stein, 500 Pearl Street, New York, New York 10007, and to the
chambers of the undersigned at 40 Centre Street, New York, New
York 10007. Any requests for an extension of time to file
objections must be directed to Judge Stein. The failure to file
timely objections will result in a waiver of those objections
for purposes of appeal. See Thomas v. Am, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985).
May 21, 2002.