In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he had raised in his Appellate Division briefs simply by asking the New York Court of Appeals for leave to appeal and then sending his Appellate Division briefs to that Court. His lawyer accomplished this by sending two cryptic letters to New York’s highest court. The lawyer’s first letter noted that he was enclosing a copy of the Appellate Division decision affirming Galdamez’s conviction and stated that "appellant hereby requests leave to appeal to this Court." The second letter merely stated that he was enclosing "the briefs submitted to the Appellate Division together with the decision affirming the conviction."
Pursuant to its usual practice, the Court of Appeals assigned Galdamez’s application to a particular judge and sent Galdamez’s lawyer a letter identifying the judge (who would decide whether to grant leave to appeal) and telling the lawyer that he had three weeks to write the judge about the case. The Court specified that in his letter to the judge, the lawyer should give particular attention "to identifying reviewability and preservation issues."
The lawyer did not submit anything to the judge. Consequently, he did nothing to assist the Court of Appeals judge in assessing whether an issue worthy of leave was presented by the case, and only the barest minimum in advocating for leave to appeal on behalf of his client. The New York Court of Appeals issued a certificate denying Galdamez leave to appeal. On Galdamez’s subsequent § 2254 petition, the Second Circuit concluded his lawyer had exhausted all of the claims set forth in the Appellate Division briefs.
The Circuit discussed its line of exhaustion cases involving New York prisoners whose lawyers -- unlike Galdamez’s -- actually took the trouble of preparing and submitting a letter to the individual judge assigned to review the leave application to argue why certain claims particularly merited the court’s review. In many of those cases, however, the Circuit construed the lawyers’ additional submissions to the individual judge as abandoning claims presented in the Appellate Division briefs. Under Circuit law, if a letter is written to the individual judge, only those claims raised in that letter are deemed exhausted, even though the Appellate Division briefs had also been submitted to the court. The assumption is that a New York Court of Appeals judge -- on receiving the lawyer’s additional submission -- would not thereafter bother to review the Appellate Division briefs. Under the Circuit’s view, the lawyer must incorporate by reference those claims in the Appellate Division briefs that were not specifically discussed in the letter to the individual judge. But the Circuit has not construed attorneys’ efforts at incorporating by reference broadly. Compare Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (incorporation by reference sufficient) with Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000) (incorporation by reference not sufficient). Thus, under the Circuit’s jurisprudence, the leave application has become a trap for the lawyer who does more than just the bare minimum of presenting to the New York Court of Appeals the lower court decision and the briefs and asking for leave to appeal.
A footnote in the Circuit’s opinion, however, provides hope that the Circuit is beginning to appreciate the potential unreality of its jurisprudence in this area, a jurisprudence in which the more conscientious lawyer who makes the extra effort of advocating for leave to appeal to the individual judge can be less effective -- for the purpose habeas corpus law -- than a lawyer who does not bother to make any arguments whatsoever to the judge. The footnote notes that the Circuit’s jurisprudence rests on "surmises" about the behavior of Court of Appeals judges in reviewing leave applications. The Circuit also appeared to recognize that, at some level, its exhaustion jurisprudence has negative implications about how conscientiously New York Court of Appeals judges review leave applications: "As we strive for comity, however, we should be vigilant against overreaching, lest we imply a lack of conscientiousness on the part of the highly competent Court of Appeals." The Circuit noted that, "[i]n the proper circumstances, we would consider certifying this important question to the Court of Appeals itself." It declined to do so here, however, because the exhaustion question was not determinative.
