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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46919 Judge Block PETITIONER SOUGHT a writ of habeas corpus pursuant to 28 USC �2254. The court had to determine whether it is precluded from considering petitioner’s constitutional claims because they were procedurally defaulted due to his assigned counsel’s failure to timely perfect his appeal as of right to the state’s highest court. The court certified a question to the U.S. Court of Appeals for the Second Circuit, noting that the Supreme Court’s holdings in Evitts v. Lucey and Pennsylvania v. Finley clearly limit a defendant’s right to counsel for discretionary appeals following his first appeal at the state level. The failure to file papers occurred during the defendant’s second appeal to the Court of Appeals but the instant court, interested in the Batson claim presented by defendant, questioned whether a defendant’s need for effective counsel is heightened once leave has been granted for a discretionary appeal.

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