Portalatin v. Graham, No. 07-1599 (2d Cir. 2010)
Annotate this Case
Download PDF
07-1599-pr, 06-3550-pr, 07-3588-pr Portalatin v. Graham 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (En Banc Rehearing: July 9, 2010 Decided: October 18, 2010) Docket Nos. 07-1599-pr, 06-3550-pr, 07-3588-pr (consolidated for disposition) CARLOS PORTALATIN, Petitioner-Appellee, v. No. 07-1599-pr HAROLD GRAHAM, Superintendent, Auburn Correctional Facility, Respondent-Appellant. WILLIAM PHILLIPS, Petitioner-Appellant, v. No. 06-3550-pr DALE ARTUS, Superintendent, Clinton Correctional Facility, ANDREW M. CUOMO, New York State Attorney General, Respondents-Appellees. Page 1 of 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 VANCE MORRIS, Petitioner-Appellant, v. No. 07-3588-pr DALE ARTUS, Superintendent, Clinton Correctional Facility, ANDREW M. CUOMO, New York State Attorney General, Respondents-Appellees.* Before: JACOBS, Chief Judge, WINTER,** CABRANES, POOLER, SACK,*** KATZMANN, RAGGI, WESLEY, HALL, LIVINGSTON, LYNCH, CHIN, Circuit Judges. WESLEY, J., filed the majority opinion in which JACOBS, C.J., CABRANES, KATZMANN, RAGGI, HALL, LIVINGSTON, LYNCH, and CHIN, JJ., joined. WINTER, J., filed a dissenting opinion in which POOLER and SACK, JJ., joined. Habeas petitioners challenge the constitutionality of sentences imposed pursuant to New York s persistent felony offender statute. See N.Y. Penal Law § 70.10. A previously constituted panel of this Court held that the state courts unreasonably applied the Supreme Court s construction of the Sixth Amendment in Blakely v. Washington, 542 U.S. 296 (2004), in affirming the petitioners sentences, but remanded to the district court for harmless error analysis. * The Clerk of the Court is directed to amend the official caption in this action to conform with that of this opinion. ** Senior Circuit Judge Winter was a member of the initial three-judge panel that heard this appeal, and is therefore eligible to participate in en banc rehearing. See 28 U.S.C. § 46(c)(1). *** Senior Circuit Judge Sack was a member of the initial three-judge panel that heard this appeal, and is therefore eligible to participate in en banc rehearing. See 28 U.S.C. § 46(c)(1). Page 2 of 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010). Following this rehearing en banc, and for the reasons discussed herein, the Court rejects that conclusion. Petitions denied. The grant of Portalatin s petition is REVERSED, and the denials of Phillips s and Morris s petitions are AFFIRMED. LEONARD JOBLOVE, Ann Bordley, Assistant District Attorneys, of counsel, Kings County, Brooklyn, NY, for Respondent-Appellant Harold Graham ANDREW C. FINE, The Legal Aid Society, Criminal Appeals Bureau, New York, NY, for PetitionerAppellant Vance Morris MARTIN M. LUCENTE (Andrew C. Fine, on the brief), The Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant William Phillips BARBARA D. UNDERWOOD (Andrew M. Cuomo, Attorney General of the State of New York, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, Alyson J. Gill, Assistant Attorney General, of Counsel, on the brief), Solicitor General, for Respondent-Appellees Andrew M. Cuomo and Dale Artus JOSHUA MICHAEL LEVINE (Lynn W.L. Fahey, on the brief), Appellate Advocates, New York, NY, for Petitioner-Appellee Carlos Portalatin Page 3 of 62 1 WESLEY, Circuit Judge: 2 Petitioners Carlos Portalatin, William Phillips, and 3 Vance Morris were separately convicted in state court and 4 received sentences pursuant to New York s persistent felony 5 offender statute, N.Y. Penal Law § 70.10. 6 for a writ of habeas corpus on the ground that the New York 7 courts engaged in an unreasonable application of clearly 8 established federal law in affirming their sentences. 9 Specifically, they argue that the Sixth Amendment guarantee Each petitioned 10 of the right to an impartial jury, as construed by the 11 Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) 12 and its progeny, proscribes the long-used sentencing 13 procedure in New York that results in judicially enhanced 14 sentences for certain recidivist offenders. 15 In the case of petitioner Portalatin, the United States 16 District Court for the Eastern District of New York agreed, 17 issuing a writ of habeas corpus from which the State now 18 appeals. 19 (E.D.N.Y. 2007) (Gleeson, J.). 20 Phillips and Morris, the United States District Court for 21 the Southern District of New York separately declined to 22 issue such writs. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 In the cases of petitioners See Phillips v. Artus, No. 05 Civ. 7974, Page 4 of 62 1 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, 2 J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at 3 *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). 4 appealed. Petitioners 5 In a consolidated appeal, a panel of this Court 6 concluded that New York s persistent felony offender 7 sentencing scheme violates the Sixth Amendment, and that the 8 New York courts unreasonably applied clearly established 9 Supreme Court precedent in holding otherwise, but remanded 10 the matters to the district court for consideration of 11 whether those errors were harmless. 12 601 F.3d 163, 189 (2d Cir. 2010). 13 See Besser v. Walsh, A majority of judges in active service then called for 14 this rehearing en banc. The Court now holds that the state 15 courts did not engage in an unreasonable application of 16 clearly established Supreme Court precedent in affirming the 17 convictions. 18 Portalatin is reversed, and the denials of the writ to 19 Phillips and Morris are affirmed. Accordingly, the grant of the writ to 20 21 22 Page 5 of 62 Background 1 2 3 A. New York s Recidivist Sentencing Scheme At issue in this case is the constitutionality of New 4 York s persistent felony offender ( PFO ) sentencing 5 statute, which authorizes lengthy terms of imprisonment for 6 certain recidivist offenders in New York. 7 New York was the first state in the Union to enact a 8 recidivist sentencing law; that is, one that punishes repeat 9 offenders more harshly than first-time offenders. See 10 generally Susan Buckley, Note, Don t Steal a Turkey in 11 Arkansas the Second Felony Offender in New York, 45 12 Fordham L. Rev. 76 (1976). 13 enhancement of sentences for second-time offenders beginning 14 in 1796. 15 669 (1887 ed.). 16 sentence for fourth-time offenders, Act of July 19, 1907, 17 ch. 645, 1907 N.Y. Laws 1494-95, which was later reduced to 18 an indeterminate term of between fifteen years and life, 19 Act of April 4, 1932, ch. 617, 1932 N.Y. Laws 1312. 20 Ultimately, in revising the Penal Law in 1965, New York 21 began to move away from that rigid mandatory framework 22 with respect to non-violent offenders to permit judges New York provided for the Act of March 26, 1796, ch. 30, 1789-1796 N.Y. Laws It subsequently added a mandatory life Page 6 of 62 1 more flexibility in selecting a sentence that is not unduly 2 harsh in any given case: The primary objection to the existing New York provisions is the mandatory feature which requires the court to blind itself to all relevant sentencing criteria, such as the circumstances surrounding the crime for which sentence is to be imposed, the nature and circumstances of the previous crimes, and the history, character and condition of the offender. 3 4 5 6 7 8 9 10 11 12 13 Comm. Staff Notes, reprinted in proposed New York Penal Law 14 (Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376), § 15 30.10 [now § 70.10], at 284. 16 Accordingly, Article 70 of New York s penal law now 17 sets forth two categories of recidivists, or persistent 18 offenders. 19 as a person who stands convicted of a violent felony (as 20 defined in N.Y. Penal Law § 70.02) and has previously been 21 convicted of two or more violent felonies (as defined in 22 N.Y. Penal Law § 70.04(1)(b)). 23 subject to an enhanced sentencing range, with a maximum term 24 of life in prison, and a minimum term fixed, based on the 25 category of the offense, anywhere from twelve to twenty-five 26 years. 27 have discretion to depart from that enhanced range: [w]hen A persistent violent felony offender is defined Such an individual is N.Y. Penal Law § 70.08(2), (3). Page 7 of 62 A judge does not 1 the court has found . . . that a person is a persistent 2 felony offender the court must impose an indeterminate 3 sentence of imprisonment [as provided herein]. 4 70.08(2) (emphasis added). 5 Id. § By contrast, subject to certain exceptions, a 6 persistent felony offender is defined as a person, other 7 than a persistent violent felony offender . . . who stands 8 convicted of a felony after having previously been convicted 9 of two or more felonies. Id. § 70.10(1)(a).1 Once a 10 defendant is determined to be a PFO, he may receive an 11 indeterminate sentence corresponding to that of a class A-I 12 felony, which ranges from a minimum of fifteen to twenty- 13 five years, and a maximum of life in prison. 14 70.10(2); 70.00(3)(a)(i). 15 persistent violent felony offender statute, the PFO statute 16 does not require the judge to impose a sentence within that 17 elevated range. 18 class A-I sentence is within the judge s discretion. 19 70.10(2). 20 21 Id. §§ However, unlike New York s Instead, the decision whether to impose a Id. § The PFO statute is therefore commonly referred to as the discretionary persistent felony offender statute. 1 It The full text of the PFO statute is set forth in Appendix A, infra. Page 8 of 62 1 permits, but does not require, a class A-I sentence for 2 certain recidivist felons. 3 determines whether to impose a PFO sentence in a particular 4 case is set forth in New York Criminal Procedure Law § 5 400.20. 6 first prove beyond a reasonable doubt that the defendant is 7 a PFO that is, that he has previously been convicted of 8 two or more qualifying felonies before an enhanced 9 sentence is authorized. The procedure by which a judge Pursuant to that provision, the prosecution must See N.Y. Crim. Proc. Law § 10 400.20(1), (5). 11 a second inquiry, and to assess whether a PFO sentence is 12 warranted before imposing such a sentence, taking into 13 consideration the history and character of the defendant 14 and the nature and circumstances of his criminal conduct. 15 Id. 16 But the court is also directed to engage in If, in the court s view, the undisputed allegations 17 regarding the defendant s background and the nature of his 18 criminal conduct justify the imposition of the enhanced 19 sentence, and the court is satisfied that the defendant 20 either has no relevant evidence to the contrary or such 21 evidence would not affect the court s decision, then the 22 court may impose a class A-I sentence (without a further Page 9 of 62 1 hearing) pursuant to § 70.10(2). 2 Otherwise, the court may schedule a hearing at which the 3 prosecution and defendant are given an opportunity to 4 present evidence as to whether the A-I sentence is 5 warranted. 6 hearing, Id. § 400.20(9). See id. § 400.20(8). And, at the conclusion of that [i]f the court both finds that the defendant is a persistent felony offender and is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant in accordance with the provisions of [Section 70.10(2)]. 7 8 9 10 11 12 13 14 Id. 15 burden of proof. 16 imposes a class A-I sentence, the reasons for the court s 17 opinion shall be set forth in the record. 18 70.10(2). 19 Throughout the proceeding the prosecution bears the Id. § 400.20(5). If the sentencing court N.Y. Penal Law § To illustrate: A defendant who stands convicted as a 20 first-time offender of a class D felony is subject to an 21 indeterminate sentence, with a minimum term of no less than 22 one year and no more than two and one third years, and a 23 maximum term of between three years and seven years. 24 id. § 70.00(2)(d), (3)(b). 25 conviction of a class D felony, he faces an indeterminate See Following the defendant s second Page 10 of 62 1 sentence with a minimum term of between two years and three 2 and one half years, and a maximum term of between four years 3 and seven years. 4 subsequent conviction of a class D felony triggers the PFO 5 statute. 6 defendant s two prior convictions beyond a reasonable doubt, 7 the defendant is subject to a class A-I sentence, in the 8 discretion of the court and pursuant to the procedure 9 described above, with a minimum term of between fifteen and See id. § 70.06(3)(d), (4)(b). A Once the prosecution proves the fact of 10 twenty-five years, and a maximum term of life in prison. 11 See id. §§ 70.00(2)(a), (3)(a)(i), 70.10(2).2 12 13 B. Facts and Procedural History 14 1. Carlos Portalatin 15 On July 12, 2002, Portalatin accosted a man at gunpoint 16 and forced him to drive to an empty street in Brooklyn. 17 Following a struggle, the victim managed to escape, and 2 The New York State Department of Correctional Services currently has custody of approximately 2,450 persistent felons who received sentences pursuant to either Section 70.08 or 70.10, which accounts for 4.2% of the total inmate population. State of New York Department of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2010, available at http://www.docs.state.ny.us/research/reports/ 2010/undercustody_report.pdf; see also Joel Stashenko, Penalties for Persistent Felons Violate the Constitution, Circuit Says, N.Y.L.J., Apr. 1, 2010, p.6, col. 1. The Department does not distinguish between persistent felony offenders, and persistent violent felony offenders, for statistical purposes. Page 11 of 62 1 Portalatin drove away in the car. 2 robbery in the first degree and kidnaping in the second 3 degree, both class B violent felonies. 4 70.02(1). 5 He was convicted of See N.Y. Penal Law § The prosecution asked the court to sentence Portalatin 6 as a persistent felony offender. A sentencing hearing was 7 held on April 28, 2003, at which the prosecution proved that 8 Portalatin had been previously convicted of the following: 9 (1) attempted burglary in the second degree in 1995; and (2) 10 attempted criminal sale of a controlled substance in the 11 fifth degree in 1998. 12 existence of those convictions. 13 Portalatin appear[ed] to be eligible for discretionary 14 persistent felony offender adjudication based on those 15 predicate offenses. 16 Portalatin did not contest the The court concluded that Next, at step two, the court conducted an assessment to 17 determine whether a class A-I sentence was warranted. 18 court considered the circumstances of the crimes for which 19 he was convicted, and also examined the history and 20 character of the defendant: 21 22 23 24 [L]ooking back on the history of this defendant, and having read these reports . . . [H]e began his criminal career in 1989, and we have beginning from that point on, the failure to take Page 12 of 62 The 1 2 3 4 5 6 7 8 advantage of opportunities that might have provided drug treatment, that might have in some way assisted him. We have bench warrants repeatedly. We have parole revocations, and repeated parole revocations to the extent that it s only when these sentences maxed out that he finally is released, and no sooner is he released than there is a new crime. 9 . . . . He as of to certainly has earned a persistent adjudication I look at this Rap sheet and the circumstances this offense and other offenses, and I m going adjudicate him a persistent felony offender. 10 11 12 13 14 15 The court imposed two indeterminate sentences of eighteen 16 years to life imprisonment, to run concurrently. 17 court elected not to sentence Portalatin as a PFO, he would 18 have faced a determinate sentence of between ten and twenty- 19 five years on each count. Had the See N.Y. Penal Law § 70.04(3)(a). 20 Portalatin appealed his conviction, contending that his 21 sentence was imposed in violation of the Sixth Amendment, as 22 construed by the Supreme Court in Apprendi. 23 2005, the Appellate Division affirmed the judgment, 24 v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334, 335 (2d 25 Dep t 2005), and the New York Court of Appeals subsequently 26 denied him leave to appeal, People v. Portalatin, 5 N.Y.3d 27 793, 793 (2005). 28 corpus in the United States District Court for the Eastern On May 16, People Portalatin then sought a writ of habeas Page 13 of 62 1 District of New York, which was granted. 2 Supp. 2d at 407. Portalatin, 478 F. The State took this appeal. 3 4 2. William Phillips 5 On March 13, 1999, Phillips and another man robbed a 6 magazine store in midtown Manhattan. The evidence at trial 7 established that Phillips entered the store with his 8 accomplice, pulled a knife, and demanded money from the 9 store manager. He was convicted following a jury trial of 10 one count of second-degree robbery (at the time a class C 11 violent felony). 12 Following his conviction, the prosecution moved to have 13 Phillips sentenced as a persistent felony offender pursuant 14 to § 70.10. 15 (1) in 1986, he was convicted of second-degree attempted 16 robbery relating to an incident in which he and an 17 accomplice grabbed a man on a Bronx Street and forcibly 18 stole his property ; (2) in 1987, he was convicted of third- 19 degree burglary while awaiting sentencing on the 1986 Bronx 20 conviction; (3) also in 1987, he was convicted of fourth- 21 degree grand larceny arising from his theft of a wallet from 22 an undercover police officer; (4) once again in 1987, he was Phillips s predicate felony offenses included: Page 14 of 62 1 convicted of third-degree burglary arising from his theft of 2 merchandise from a card store; (5) in 1990, following the 3 completion of his sentences for the above charges, he was 4 convicted of third-degree attempted robbery; and (6) in 5 1994, he was convicted of attempted criminal sale of a 6 controlled substance in the third degree. 7 multiple misdemeanor offenses. A sentencing hearing was held on January 4, 2000, at 8 9 Phillips also had which the court heard arguments on the prosecution s § 70.10 10 motion. Phillips did not dispute the existence of his six 11 prior felony convictions. 12 found by the jury in his case, maintained his innocence of 13 the March 13, 1999, robbery, and attempted to persuade the 14 court to exercise its discretion not to sentence him as a 15 PFO. Instead, he challenged the facts 16 On January 13, 2000, the court issued its ruling. 17 First, the court made the threshold determination that 18 defendant has been convicted of two or more previous 19 felonies and is a persistent felony offender within the 20 meaning of [§ 70.10]. 21 generalized assessment, and concluded that a class A-I 22 sentence was warranted: The court then conducted a Page 15 of 62 1 2 3 4 5 6 7 8 9 Defendant has demonstrated time and again, throughout his entire adult life, that he cannot be trusted to function normally in society and that he is unwilling and unable to rehabilitate himself. The history and character of defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest. 10 (citing N.Y. Crim. Proc. Law § 400.20(1); N.Y. Penal Law § 11 70.10). 12 sixteen years to life in prison. 13 as a PFO, he would have faced a determinate sentence of 14 between seven and fifteen years. 15 70.02(1); 70.04(1), (3)(b). 16 Phillips received an indeterminate sentence of Had he not been sentenced See N.Y. Penal Law §§ Following his sentence, Phillips exhausted his appeals 17 in state court, see People v. Phillips, 2 A.D.3d 278, 279, 18 768 N.Y.S.2d 812, 812 (1st Dep t 2003) (rejecting 19 defendant s Apprendi challenge); People v. Phillips, 3 20 N.Y.3d 645, 645 (June 24, 2004), on reconsideration, 3 21 N.Y.3d 710, 710 (Sep. 30, 2004) (denying leave to appeal), 22 and then brought the instant petition for a writ of habeas 23 corpus in the United States District Court for the Southern 24 District of New York on the grounds that his sentence was 25 imposed in violation of the principle announced in Apprendi 26 v. New Jersey, 530 U.S. 466 (2000). Page 16 of 62 On June 30, 2006, the 1 district court rejected his Apprendi challenge and declined 2 to issue a certificate of appealability. 3 1867386, at *5-7. 4 appealability in this Court, which was granted. Phillips, 2006 WL Phillips then moved for a certificate of 5 6 3. Vance Morris 7 Morris was convicted following a jury trial of sixteen 8 counts of criminal contempt in the first degree, a class E 9 felony. See N.Y. Penal Law § 215.51(b). Four final orders 10 of protection had previously been issued against Morris when 11 the police were called to his ex-girlfriend s apartment on 12 July 18, 2001. 13 had come to her residence in violation of the orders of 14 protection, repeatedly banged on her door, and threatened 15 her. 16 called the apartment and left messages, each time 17 threatening to kill the woman. 18 The woman informed the officers that Morris While the officers were still present, Morris twice Following Morris s conviction, the State moved to 19 sentence him as a persistent felony offender. 20 hearings held in April and July of 2002, Morris conceded 21 various prior felony convictions, including: (1) a 1989 22 conviction for attempted robbery in the third degree; (2) a Page 17 of 62 At sentencing 1 1992 conviction for grand larceny in the fourth degree; (3) 2 a 1992 conviction for attempted criminal possession of a 3 controlled substance in the fifth degree; and (4) a 1994 4 conviction for robbery in the third degree. 5 therefore concluded that Morris qualified as a persistent 6 felony offender under Section 70.10. 7 The court Next, at step two, the court evaluated whether or not 8 Morris should be sentenced as a PFO. 9 described the defendant s long history of terrorizing his 10 ex-girlfriend, as well as several of her neighbors, who on 11 several occasions felt it necessary to call the police for 12 fear that he s going to kill us all. 13 Morris was incarcerated at Riker s Island during the 14 pendency of the case, he called his ex-girlfriend on thirty- 15 two separate occasions in violation of the orders of 16 protection. 17 criminal history of violence toward women, which include 18 numerous incidents in the subway, inter alia: 19 20 21 22 23 24 25 26 The sentencing judge In addition, while The court considered the defendant s other firing a projectile in the face of a female passenger in 1986, twice snatching pairs of earrings from the ears of female passengers, slapping a [visibly] pregnant female in the face and snatching necklaces from her neck, twice engaging in public masturbation in the subway station in front of female witnesses and grabbing the buttocks of a female rider while threatening Page 18 of 62 1 2 3 a sexual assault on her. The court concluded that Morris s criminal record, 4 which spans nearly two decades, establishes his propensity 5 to prey upon helpless women generally, and upon [the ex- 6 girlfriend] in particular. 7 his utter lack of self control and inability to be 8 rehabilitated. 9 indeterminate terms of fifteen years to life in prison, to It also serves to demonstrate Morris was sentenced to sixteen 10 be served concurrently. 11 a PFO, he would have faced a determinate sentence of between 12 one and one half years and four years on each of the sixteen 13 counts. 14 If Morris had not been sentenced as See N.Y. Penal Law § 70.06(3)-(4). On direct appeal, Morris asserted an Apprendi challenge 15 to his sentence. The Appellate Division rejected that 16 argument as unpreserved, as well as on its merits. 17 People v. Morris, 21 A.D.3d 251, 251, 800 N.Y.S.2d 6, 7 (1st 18 Dep t 2005). 19 appeal on September 27, 2005, People v. Morris, 5 N.Y.3d 20 831, 831 (2005), and Morris submitted a petition for a writ 21 of habeas corpus in federal court. 22 United States District Court for the Southern District of 23 New York denied that petition. See The New York Court of Appeals denied leave to On July 30, 2007, the Morris, 2007 WL 2200699, at Page 19 of 62 1 *1. Morris brought this appeal. 2 3 4. The Consolidated Appeal and Panel Opinion 4 Because the legal question presented by the three 5 petitioners is identical specifically, whether New York s 6 recidivist sentencing scheme runs afoul of the Supreme 7 Court s holding in Blakely v. Washington, 542 U.S. 296 8 (2004) 9 The case was argued in front of a three-judge panel on April their appeals were consolidated by our Court.3 10 16, 2008, and on March 31, 2010, the panel answered that 11 question in the negative. 12 169 (2d Cir. 2010). 13 Amendment principle announced in Blakely prohibits the type 14 of judicial fact-finding resulting in enhanced sentences 15 under New York s PFO statute. Besser v. Walsh, 601 F.3d 163, According to the panel, the Sixth Id. 3 We ordered this This consolidated appeal originally included five petitioners, two of whom have been severed from this en banc rehearing (Besser v. Walsh, No. 054375-pr, and Washington v. Poole, No. 07-3949-pr). Besser s conviction became final in state court well before the Supreme Court s decision in Blakely. His appeal therefore does not present a unique legal question of exceptional importance for the Court, Fed. R. App. P. 35(a)(2), and is effectively disposed of by our existing precedent, see Brown v. Miller ( Brown II ), 451 F.3d 54, 55 (2d Cir. 2006); Brown v. Greiner ( Brown I ), 409 F.3d 523, 534-35 (2d Cir. 2005). As a result, our decision in Besser v. Walsh, 601 F.3d 163, 169 (2d Cir. 2010), insomuch as it affirmed the judgment of the district court denying Besser s petition, remains final with respect to his appeal. In addition, because Washington predeceased the resolution of his appeal, we vacated the district court s judgment and remanded that case with instructions to dismiss his petition as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); Mfrs. Hanover Trust Co. v. Yanakas, 11 F.3d 381, 383 (2d Cir. 1993). Page 20 of 62 1 rehearing en banc and, for the reasons stated below, we 2 conclude that the state courts did not engage in an 3 unreasonable application of clearly established Supreme 4 Court precedent to conclude otherwise. 5 petitions is therefore denied. Each of the 6 Discussion 7 8 9 A. Standard of Review We review de novo a district court s decision to grant 10 or deny a habeas corpus petition. See, e.g., Overton v. 11 Newton, 295 F.3d 270, 275 (2d Cir. 2002). 12 enactment of the Antiterrorism and Effective Death Penalty 13 Act of 1996 ( AEDPA ), Pub. L. No. 104-132, 110 Stat. 1214, 14 federal habeas review of state court convictions has been 15 narrowly circumscribed, see Felker v. Turpin, 518 U.S. 651, 16 654 (1996) (acknowledging that AEDPA work[ed] substantial 17 changes to the ability of a federal tribunal to entertain a 18 habeas petition). 19 court decision was adjudicated on the merits,4 the writ may Since the Where, as here, the challenged state 4 Although the claims asserted by Portalatin and Morris were not preserved on direct appeal, thus independently barred as a matter of state procedural law, the Appellate Division in each case cited to the New York Court of Appeals decision in People v. Rosen, 96 N.Y.2d 329 (2001), to support its conclusion that those claims were defaulted. See Morris, 21 A.D.3d at 251, 800 N.Y.S.2d at 7; Portalatin, 18 A.D.3d at 674, 795 N.Y.S.2d at 335. As our Court has previously observed, the procedural analysis in Rosen was Page 21 of 62 1 2 3 4 5 6 7 8 9 10 11 12 not issue unless the state court proceeding: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). 13 To qualify as clearly established for the purposes of 14 federal habeas review, a rule of law must be embodied in the 15 holdings, as opposed to the dicta, of Supreme Court 16 precedent. 17 And, for a state court decision to be contrary to, or an 18 unreasonable application of, that Supreme Court precedent, 19 the decision must: (1) arrive[] at a conclusion opposite to 20 that reached by [the Supreme Court] on a question of law ; 21 (2) decide[] a case differently than [the Supreme Court] on 22 a set of materially indistinguishable facts ; or (3) 23 identif[y] the correct governing legal principle . . . but 24 unreasonably appl[y] that principle to the facts of the Williams v. Taylor, 529 U.S. 362, 412 (2000). necessarily interwoven with substantive federal law, and therefore a citation to Rosen for the proposition that a claim is procedurally barred does not present an independent and adequate procedural ground foreclosing review of the merits in a subsequent habeas proceeding. See Brown II, 451 F.3d at 5657. Page 22 of 62 1 prisoner s case. See id. at 412-13. If none of these 2 conditions is met, even if the federal court would have 3 reached a different conclusion on direct review, the 4 petition must be denied. 5 AEDPA] standard, we decide not whether the state court 6 correctly interpreted the doctrine of federal law on which 7 the claim is predicated, but rather whether the state 8 court s interpretation was unreasonable in light of the 9 holdings of the United States Supreme Court at the time. As we have interpreted [the 10 Policano v. Herbert, 507 F.3d 111, 115 (2d Cir. 2007) 11 (internal quotation marks omitted). 12 of reasonable judgment can depend in part on the nature of 13 the relevant rule. 14 may be narrow . . . As a result, evaluating whether a rule 15 application was unreasonable requires considering the rule s 16 specificity. 17 (2004). To that end, the range If a legal rule is specific, the range Yarborough v. Alvarado, 541 U.S. 652, 664 18 19 20 21 22 B. Clearly Established Law: Apprendi, Ring, Blakely, and Cunningham 23 Supreme Court applied the Sixth Amendment s guarantee to a 24 trial by an impartial jury to a state law triggering In the seminal case of Apprendi v. New Jersey, the Page 23 of 62 1 enhanced sentencing ranges based on judicial factfinding. 2 530 U.S. at 490. 3 permitted the trial judge to impose an extended term of 4 imprisonment if the judge found, by a preponderance of the 5 evidence, that the defendant committed the crime with a 6 purpose to intimidate an individual or group based on 7 certain enumerated characteristics. 8 Supreme Court struck down the statute as a violation of the 9 Sixth Amendment. There, a New Jersey hate-crime statute Id. at 497. Id. at 468-69. The Because the hate-crime 10 statute permitted a sentencing judge to enhance a 11 defendant s term of incarceration beyond the maximum 12 otherwise authorized for the underlying offense, based on 13 facts found by the judge by a preponderance of the evidence, 14 the defendant was effectively being charged, convicted, and 15 sentenced to a more serious crime without the protections of 16 a jury trial.5 17 forth the rule and its exception, both now well settled: 18 Other than the fact of a prior conviction, any fact that 19 increases the penalty for a crime beyond the prescribed 20 statutory maximum must be submitted to a jury, and proved See id. at 483. The Court in Apprendi set 5 Apprendi was convicted of the crime of possession of a firearm for an unlawful purpose, punishable under New Jersey law by a term of imprisonment of five to ten years; following the hate-crime enhancement imposed by the sentencing judge, a term of ten to twenty years was authorized. Page 24 of 62 1 beyond a reasonable doubt. Id. at 490 (emphasis added). 2 The exception for prior convictions preserved the 3 Court s earlier holding in Almendarez-Torres v. United 4 States, which affirmed the constitutionality of the use of 5 recidivism as a judicially determined sentencing factor 6 authorizing an enhanced sentence. 7 (1998). 8 U.S.C. § 1326(b)(2) violated a defendant s right to a jury 9 trial because it authorized an enhanced penalty for any See 523 U.S. 224, 247 There, the Court rejected the argument that 8 10 alien caught reentering the United States after being 11 deported, if the initial deportation was subsequent to a 12 conviction for commission of an aggravated felony. 13 U.S.C. § 1326(b)(2); see id. at 226-28. 14 Court, the sentencing factor at issue here recidivism 15 is a traditional, if not the most traditional, basis for a 16 sentencing court s increasing an offender s sentence. 17 Almendarez-Torres, 523 U.S. at 243 (emphasis added). 8 According to the 18 In reaffirming the constitutionality of the use of 19 recidivism as a judicially-found sentencing factor, the 20 Supreme Court has since emphasized that the existence of 21 procedural safeguards embedded in prior criminal 22 proceedings, as well as the lack of dispute or uncertainty Page 25 of 62 1 as to the fact of a prior conviction, mitigate[] the due 2 process and Sixth Amendment concerns otherwise implicated in 3 allowing a judge to determine a fact increasing the 4 punishment beyond the maximum of a statutory range. 5 Apprendi, 530 U.S. at 488. 6 repeated emphasis on the distinctive significance of 7 recidivism leaves no question that the Court regarded that 8 fact as potentially distinguishable for constitutional 9 purposes from other facts that might extend the range of To be sure, [t]he Court s 10 possible sentencing. Jones v. United States, 526 U.S. 227, 11 249 (1999); see also Parke v. Raley, 506 U.S. 20, 26 (1992) 12 (acknowledging that recidivism has formed the basis for 13 sentencing enhancements dat[ing] back to colonial times, 14 and that recidivist sentencing laws were currently . . . in 15 effect in all 50 states ). 16 The rule of Apprendi was later reinforced in Ring v. 17 Arizona, in which the Supreme Court struck down a capital 18 sentencing scheme that vested the trial judge with the 19 discretion to determine the presence or absence of 20 statutorily enumerated aggravating factors required for the 21 imposition of a death sentence. 22 Under the Arizona law, a defendant could not be sentenced to 536 U.S. 584, 588 (2002). Page 26 of 62 1 death unless the judge found at least one aggravating 2 circumstance. 3 the defendant faced a maximum sentence of life in prison. 4 Id. at 597. 5 [b]ecause Arizona s enumerated aggravating factors operate 6 as the functional equivalent of an element of a greater 7 offense, the Sixth Amendment requires that they be found by 8 a jury. 9 n.19). Id. at 592-93. Absent that factual finding, The result was therefore presaged by Apprendi: Id. at 609 (quoting Apprendi, 530 U.S. at 494 That Arizona dubbed those findings aggravating 10 factors altered the analysis no more than New Jersey s use 11 of the term sentencing enhancement, because [t]he 12 dispositive question . . . is one not of form, but effect. 13 Ring, 536 U.S. at 602 (internal quotation marks omitted). 14 In Blakely v. Washington, the Supreme Court expanded6 on 6 We agree with the panel opinion insofar as it acknowledged that the principle announced in Blakely was not clearly established prior to its disposition. See Besser, 601 F.3d at 181-83; see also Brown II, 451 F.3d at 57 n.1; Brown I, 409 F.3d at 533-34. Because Blakely extended the rule of Apprendi, instead of merely applying it to a new set of facts, its holding was not dictated by prior Supreme Court precedent, and it therefore does not apply retroactively on collateral review under the Teague doctrine or AEDPA. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion); Mungo v. Duncan, 393 F.3d 327, 333-34 (2d Cir. 2004). But the Supreme Court has not definitively stated when the snapshot is taken to determine the universe of clearly established Supreme Court precedent for purposes of AEDPA. Compare Williams, 529 U.S. at 390 (referring to point at which the state-court conviction became final ) (Stevens, J., for the Court), with id. at 412 (focusing on the time of the relevant state-court decision ) (O Connor, J., for the Court). This poses a question of federal law unique to one of the petitioners. Because Blakely was issued after the Appellate Division adjudicated Phillips s appeal on the merits, but before the New York Court of Appeals denied him leave to appeal, the time of that snapshot is relevant. Yet we need not resolve that question today. Even assuming the operative date to be the latter, for the reasons discussed infra, Phillips s reliance on Page 27 of 62 1 the principle announced in Apprendi when it was presented 2 with a challenge to a sentence imposed pursuant to 3 Washington s Sentencing Reform Act. 4 Blakely was convicted of second-degree kidnaping involving 5 domestic violence and use of a firearm, which carried a 6 statutory maximum sentence of ten years. 7 (citing Wash. Rev. Code §§ 9A.40.030(1), 10.99.020(3)(p), 8 9.94A.125). 9 provisions, a sentencing judge was required to impose a 542 U.S. at 313-14. Id. at 298-99 However, pursuant to other statutory 10 standard sentence of between forty-nine and fifty-three 11 months unless the judge found substantial and compelling 12 reasons justifying an exceptional sentence. 13 (quoting Wash. Rev. Code § 9.94A.120(2)). 14 list of aggravating factors was set forth in the Act, and 15 the sentencing judge was required to set forth findings of 16 fact and conclusions of law supporting a so-called 17 exceptional sentence. 18 decided to give Blakely an exceptional sentence of ninety 19 months, based on the fact that he had acted with deliberate 20 cruelty, one of the enumerated grounds for departure. 21 at 300. Id. at 299. An illustrative The trial judge Blakely does not alter the resolution of his petition. Page 28 of 62 Id. at 299 Id. 1 The Supreme Court reversed the sentence. The Court 2 first restated the familiar rule (and exception) of 3 Apprendi: Other than the fact of a prior conviction, any 4 fact that increases the penalty for a crime beyond the 5 prescribed statutory maximum must be submitted to a jury, 6 and proved beyond a reasonable doubt. 7 added). 8 that the relevant statutory maximum may not necessarily 9 coincide with the maximum penalty prescribed by the penal Id. at 301 (emphasis But the Blakely court went further, and clarified 10 code. Instead, the statutory maximum for Apprendi 11 purposes is the maximum sentence a judge may impose solely 12 on the basis of the facts reflected in the jury verdict or 13 admitted by the defendant. 14 original). 15 fifty-three months: Because the judge was powerless to 16 sentence Blakely to anything more than fifty-three months 17 based solely on his conviction and the facts admitted 18 pursuant to his guilty plea, the statutory maximum was no 19 more 10 years . . . than it was 20 years in Apprendi 20 (because that is what the judge could have imposed upon 21 finding a hate crime) or death in Ring (because that is what 22 the judge could have imposed upon finding an aggravator). Id. at 303 (emphasis in For Blakely, the relevant Apprendi maximum was Page 29 of 62 1 2 Id. at 304. Moreover, Blakely clarified that a sentencing scheme 3 can violate the Sixth Amendment even if those facts that a 4 sentencing judge is required to find are not specifically 5 enumerated by statute. 6 aggravating circumstances in the Washington statute was 7 illustrative rather than exhaustive did not elide the 8 constitutional flaw: Whether the judge s authority to 9 impose an enhanced sentence depends on finding a specified Id. at 305. That the list of 10 fact (as in Apprendi), one of several specified facts (as in 11 Ring), or any aggravating fact (as [in Blakely]), id., the 12 authority is derivative of an unconstitutional source. 13 Because Blakely s ninety-month sentence could not have been 14 imposed but for the judge s finding of deliberate cruelty, 15 it was imposed in violation of the Sixth Amendment. 16 Thus, Blakely settled that the Apprendi maximum is the 17 sentence that is authorized based solely on those factual 18 predicates that are found within the constraints of the 19 Sixth Amendment. 20 to a jury beyond a reasonable doubt; (2) admitted by the 21 defendant; or (3) findings of recidivism. 22 Id. That is, those facts that are: (1) proven Lastly, in Cunningham v. California, the Supreme Court Page 30 of 62 1 addressed the validity of California s determinate 2 sentencing law ( DSL ) in light of Apprendi, Ring and 3 Blakely. Cunningham v. California, 549 U.S. 270, 274 4 (2007). Under the DSL, most substantive offenses were 5 assigned three tiers of determinate sentences: a lower-, a 6 middle-, and an upper-term sentence. 7 discretion of the trial judge to select either the upper- 8 term or lower-term sentence was circumscribed: the statute 9 provided that the court shall order imposition of the Id. at 277. But the 10 middle term, unless there are circumstances in aggravation 11 or mitigation of the crime. 12 1170(b)) (emphasis added). 13 were defined as facts which justify the imposition of the 14 upper prison term, which were to be established by a 15 preponderance of the evidence and stated orally on the 16 record. 17 4.405(d), 4.420(b), 4.420(e)) (emphasis in original). 18 Hence, the middle term was the default sentence absent 19 further factual findings. Id. (quoting Cal. Penal Code § Circumstances in aggravation Id. at 278 (quoting Cal. Jud. Council Rules 20 Cunningham was convicted of continuous sexual abuse of 21 a child under the age of fourteen, for which the prescribed 22 terms were six, twelve, and sixteen years, respectively. Page 31 of 62 1 Id. at 275. 2 found by a preponderance of the evidence six aggravating 3 circumstances including, inter alia, the particular 4 vulnerability of his victim. 5 to the upper term of sixteen years. 6 At a post-trial sentencing hearing, the judge Id. Cunningham was sentenced Id. at 276. The Supreme Court held that the DSL violated the Sixth 7 Amendment. In rejecting the State s argument that the 8 Apprendi maximum was the upper-term sentence for 9 Cunningham, sixteen years the Court reaffirmed the 10 principle announced in Blakely that a sentence must be fully 11 authorized by factual predicates obtained in compliance with 12 the Constitution: If the jury s verdict alone does not 13 authorize the sentence, if, instead, the judge must find an 14 additional fact to impose the longer term, the Sixth 15 Amendment requirement is not satisfied. 16 Because the judge was required to make a factual finding in 17 order to impose the upper-term sentence, the Apprendi 18 maximum was not the upper term, but the middle term, and the 19 use of judicial factfinding to impose the upper term 20 violated the Sixth Amendment. 21 22 Id. at 290. Id. at 292-93. Because Cunningham was decided well after the conviction of each petitioner became final, it is urged by Page 32 of 62 1 the State that we cannot consider it in our analysis. To 2 the contrary, a Supreme Court holding is generally operative 3 retroactively in a collateral proceeding so long as it does 4 not announce a new rule within the meaning of Teague. 5 See, e.g., Beard v. Banks, 542 U.S. 406, 411 (2004). 6 case announces a new rule when it breaks new ground or 7 imposes a new obligation on the States or Federal 8 Government. 9 rule if the result was not dictated by precedent existing at [A] To put it differently, a case announces a new 10 the time the defendant s conviction became final. 11 489 U.S. at 301 (emphasis added, internal citations 12 omitted). 13 federal law is law that is dictated by Supreme Court 14 precedent existing at the time the defendant s conviction 15 became final. 16 2003) (internal quotations and brackets omitted). 17 the holding of a case was dictated by extant Supreme Court 18 precedent at a particular time, the constitutional rule 19 embodied in that case was necessarily clearly established 20 at that time. 21 22 Teague, Similarly, under AEDPA, clearly established McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. Thus, if In that light, we have no trouble concluding that the identification of a Sixth Amendment violation in Cunningham Page 33 of 62 1 was dictated at the time that the petitioners convictions 2 became final on direct review.7 3 in Blakely can be said to have compelled the result in 4 Cunningham, because Blakely left no doubt that the Apprendi 5 maximum is the highest sentence authorized by 6 constitutionally-obtained factual predicates alone: those 7 contained in the jury verdict, those admitted by the 8 defendant, and those respecting recidivism. 9 542 U.S. at 305. Specifically, the decision See Blakely, Thus, it should have been apparent to all 10 reasonable jurists, Lambrix v. Singletary, 520 U.S. 518, 11 527-28 (1997), that the demise of California s DSL was 12 portended by the holding of Blakely. 13 persuasive analytical distinction between the sentencing 14 schemes in Blakely and Cunningham, nor can we discern any.8 The State offers no 7 For the purposes of Teague, a state conviction becomes final when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. Caspari v. Bohlen, 510 U.S. 383, 390 (1994). The moment of finality for Teague purposes is not to be confused with the relevant time for determining what federal law is clearly established for purposes of AEDPA. The two concepts are distinct, and we express no view as to the proper time at which to fix the latter. See supra note 6. 8 The existence of dissenting opinions in Cunningham does not persuade us otherwise. See 549 U.S. at 295 (Kennedy, J., dissenting); id. at 310 (Alito, J., dissenting). The dissenters questioned whether California s DSL might be susceptible to a remedial construction akin to that afforded the federal sentencing scheme in Booker, see id. at 297-311 (Alito, J., dissenting), and expressed fundamental disagreement with Apprendi itself, positing a limiting principle to reduce its collateral effects, see id. at 295-97 (Kennedy, J., dissenting). In any event, we do not presume that a nonunanimous decision by the Supreme Court necessarily establishes a new rule of law. See, e.g., Banks, 542 U.S. at 416 n.5 ( Because the focus of the Page 34 of 62 1 See Butler v. Curry, 528 F.3d 624, 636 (9th Cir. 2008) 2 (noting that the Court in Cunningham simply applied the 3 rule of Blakely to a distinct but closely analogous 4 sentencing scheme ). 5 principle announced in Blakely, but merely applied it to a 6 new set of facts, we hold that Cunningham constitutes 7 clearly established law for the petitioners. 8 Because Cunningham did not extend the Nevertheless, for reasons discussed in the remainder of 9 this opinion, we conclude that neither Cunningham nor any 10 other clearly established Supreme Court precedent supports 11 the petitioners position. 12 13 14 15 16 17 C. Apprendi and New York s PFO Statute 1. The operative interpretation: Rosen, Rivera and Quinones The New York Court of Appeals has interpreted the PFO 18 statute on three occasions since the Supreme Court s 19 decision in Apprendi, each time affirming its 20 constitutionality in response to Sixth Amendment challenges. 21 See People v. Quinones, 12 N.Y.3d 116, 131 (2009); People v. 22 Rivera, 5 N.Y.3d 61, 71 (2005); People v. Rosen, 96 N.Y.2d inquiry is whether reasonable jurists could differ as to whether precedent compels the sought-for rule, we do not suggest that the mere existence of a dissent suffices to show that the rule is new. (emphasis in original)). Page 35 of 62 1 329, 336 (2001). 2 interpretation of federal law, but we are bound by its 3 construction of New York law in conducting our analysis. 4 examine each case in turn. 5 Of course, we do not defer to that court s We In Rosen, the New York Court of Appeals rejected for 6 the first time an Apprendi challenge to New York s PFO 7 statute. 8 familiar rule of Apprendi: Other than the fact of a prior 9 conviction, any fact that increases the penalty for a crime 10 beyond the prescribed statutory maximum must be submitted to 11 a jury, and proved beyond a reasonable doubt. 12 (quoting Apprendi, 530 U.S. at 490). 13 to hold that the only fact necessary to impose a PFO 14 sentence under § 70.10 is the fact of recidivism, placing 15 the PFO statute squarely within the exception to the rule: 16 It is clear from the . . . statutory framework that the 17 prior felony convictions are the sole determin[ant] of 18 whether a defendant is subject to enhanced sentencing as a 19 persistent felony offender. 20 Only after that finding is made will a court look to the 21 defendant s history and character, and the nature and 22 circumstances of his criminal conduct, to determine where, See 96 N.Y.2d at 335. The court acknowledged the Id. at 334 But the court went on Id. at 335 (emphasis added). Page 36 of 62 1 within this now expanded sentencing range, a sentence should 2 be imposed. 3 thus only fulfilling its traditional role giving due 4 consideration to agreed-upon factors in determining an 5 appropriate sentence within the permissible statutory 6 range. 7 See id. To that end, the sentencing court is Id. In Rivera, the New York Court of Appeals revisited the 8 constitutionality of § 70.10 in light of Blakely and Ring, 9 and repeated its conclusion that recidivism findings are the 10 only necessary factual predicates to impose a PFO sentence. 11 Because [t]he statute authorizes indeterminate sentencing 12 once the court finds persistent felony offender status, 13 Rivera, 5 N.Y.3d at 66 (emphasis added), the court held, 14 the predicate felonies are both necessary and sufficient 15 conditions for imposition of the authorized sentence for 16 recidivism; that is why we pointedly called the predicate 17 felonies the sole determinant [in Rosen], id. at 68 18 (quoting Rosen, 96 N.Y.2d at 335). 19 The court acknowledged that the statute, as written, is 20 susceptible to a construction that would pose an Apprendi 21 problem: 22 23 We could have decided Rosen differently by reading the statutes to require judicial Page 37 of 62 1 2 3 4 5 6 7 factfinding as to the defendant s character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. 8 Id. at 67 (emphasis in original). 9 explained, the statutes raise no constitutional concern 10 11 12 13 14 15 16 But, as the court because we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Id. (emphasis in original). 17 In thus reiterating its construction of the PFO statute 18 in Rosen, the court in Rivera clearly construed state law to 19 provide for an expanded range of authorized sentences once a 20 defendant is adjudged a persistent felony offender, at which 21 point the trial judge is directed to exercise discretion in 22 determining where within that newly expanded range to impose 23 a sentence: 24 25 26 27 28 29 30 The statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a result. . . . . Page 38 of 62 1 2 3 4 5 6 7 8 9 [A] defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed, while the People retain the burden to show that the defendant deserves the higher sentence. Id. at 68. In other words, according to New York s highest 10 court, the maximum range of available sentences is 11 established once the defendant is proven to have two prior 12 qualifying felonies: The judge may impose a sentence within 13 the range permitted for an A-I felony, or may instead impose 14 a lower sentence within the range permitted for a second 15 felony offense. 16 Rivera also addressed the statute s mandatory 17 consideration and articulation of those factors that a 18 trial judge finds relevant in determining what sentence to 19 impose. 20 directive to serve two distinct functions. 21 Id. at 69. The court interpreted that legislative First, it provides a defendant with notice and an 22 opportunity to respond to those factors that the court deems 23 relevant to the exercise of its sentencing discretion within 24 the ranges authorized by the PFO statute. 25 language requiring the sentencing court to consider the 26 specified factors and to articulate the reason for the Page 39 of 62 The statutory 1 chosen sentence grants defendants a right to an airing and 2 an explanation, not a result. 3 United States, 551 U.S. 338, 356 (2007) ( Confidence in a 4 judge s use of reason underlies the public s trust in the 5 judicial institution. 6 helps provide the public with the assurance that creates 7 that trust. ). 8 9 Id. at 68; cf. Rita v. A public statement of those reasons And second, the judge s articulation of reasoning facilitates an appellate review function that is distinct 10 from the issue of whether the PFO sentence was lawfully 11 imposed. 12 vested with the capacious authority to review and modify 13 criminal sentences in the interests of justice. 14 Crim Proc. Law § 470.15(3)(c).9 15 power is unrelated to the legality of the sentence; the 16 power to reverse or modify a sentence based on a legal error 17 is addressed separately in the statute. 18 470.15(3)(a). 19 discretion of the Appellate Division to modify a sentence in 20 the interest of justice if it is deemed to be unduly harsh In New York, intermediate appellate courts are See N.Y. Notably, that oversight See id. § Even absent legal error, it rests within the 9 A reversal or a modification of a judgment, sentence or order must be based upon a determination made . . . [a]s a matter of discretion in the interest of justice. N.Y. Crim. Proc. Law § 470.15(3)(c). Page 40 of 62 1 or severe. 10 2 judge should set forth those considerations deemed relevant 3 to the imposition of a PFO sentence for the benefit of an 4 appellate court that must later determine whether the 5 sentence was too severe. In that light, Rivera notes, a sentencing Rivera explains: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [O]nce a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally. 25 5 N.Y.3d at 68-69 (emphasis added) (citing N.Y. Crim. Proc. 26 Law § 470.20(6)). 27 statute does not violate the principle announced in Blakely, 28 because it simply creates a recidivist sentencing scheme: 29 the only factual predicates necessary for a judge to impose The court s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident. In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute. A determination of that kind, however, is based not on the law but as an exercise of the Appellate Division s discretion in the interest of justice as reserved uniquely to that Court. Rivera thus concluded that the PFO 10 Upon modifying a judgment or reversing a sentence as a matter of discretion in the interest of justice upon the ground that the sentence is unduly harsh or severe, the court must itself impose some legally authorized lesser sentence. N.Y. Crim. Proc. Law § 470.20(6). Page 41 of 62 1 a class A-I sentence are those respecting the defendant s 2 criminal history, and it therefore falls within the carve- 3 out of Almendarez-Torres. Id. at 67. 4 Most recently, in Quinones, the New York Court of 5 Appeals reaffirmed the validity of the PFO statute in light 6 of the Supreme Court s decision in Cunningham, which it 7 found readily distinguishable. 8 reasoning of Rivera, concluding that 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It reiterated much of the the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant s criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York s sentencing scheme, by requiring that sentencing courts consider defendant s history and character and the nature and circumstances of defendant s conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court s most traditional and basic functions, i.e., the exercise of sentencing discretion. 12 N.Y.3d at 130. 29 30 2. Brown I and Brown II 31 Our Court has examined the PFO statute on two prior Page 42 of 62 1 occasions. 2 petition, and in both cases we denied relief. 3 Each was presented in the posture of a habeas In Brown I, we deemed it a reasonable conclusion by the 4 state court that the judicial finding of at least two 5 predicate felony convictions comported with the dictates of 6 Apprendi, and noted that the second-prong inquiry called 7 for under the PFO statute is of a very different sort from 8 the judicial factfinding proscribed by Apprendi. 9 at 534. 409 F.3d It is a vague, amorphous assessment of whether, in 10 the court s opinion, extended incarceration and life-time 11 supervision of the defendant will best serve the public 12 interest. 13 sum, [w]e [could not] say the New York Court of Appeals 14 unreasonably applied Apprendi when it concluded that this 15 second determination is something quite different from the 16 fact-finding addressed in Apprendi and its predecessors. 17 Id. at 534-35. 18 Id. (quoting N.Y. Penal Law § 70.10(2)). In In Brown II, we revisited the issue in light of the 19 Supreme Court s holding in Ring, and found the PFO statute 20 to be distinguishable from the Arizona capital sentencing Page 43 of 62 Brown II, 451 F.3d at 59.11 1 scheme invalidated in Ring. 2 noted that Ring did not expound upon the rule announced in 3 Apprendi in a way that is significant to the disposition of 4 this case. 5 required the sentencing judge to find some specified fact 6 before imposing an enhanced sentence. 7 concluded that it was not unreasonable for the state court 8 to identify a crucial distinction between the 9 unconstitutional factfinding required under the statutes at Id. We Each case involved a statute that Id. Thus, we 10 issue in both Ring and Apprendi, and the discretionary 11 assessment called for by the PFO statute. 12 Id. But neither Brown I nor Brown II speaks to the question 13 that we face today: In light of the New York Court of 14 Appeals construction of the PFO statute in Rivera, and the 15 Supreme Court holdings in Blakely and Cunningham, does the 16 PFO statute suffer from a constitutional defect that the 17 state courts were objectively unreasonable to overlook? 18 hold that it does not. We 19 20 11 Although decided in 2006, Brown II did not consider the effects, if any, of Blakely on the validity of the PFO statute because the petitioner s conviction in Brown II became final before Blakely was decided. Brown II, 451 F.3d at 57 n.1. Page 44 of 62 1 2 3 4 D. The New York courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the petitioners sentences. Petitioners rely principally on two distinct, though 5 related, arguments to support their contention that the PFO 6 statute requires sentencing judges in New York to engage in 7 unconstitutional factfinding. 8 step two determination under the PFO statute violates the 9 Sixth Amendment because a sentencing judge is required to First, they urge that the 10 make factual findings beyond those respecting the predicate 11 felony convictions before imposing a class A-I sentence. 12 Second, they argue that even if a judge may impose a PFO 13 sentence based solely on the defendant s predicate felony 14 convictions, the step two determination nonetheless entails 15 unconstitutional factfinding because a judge is required to 16 form a qualitative judgment about the defendant s criminal 17 history before imposing a PFO sentence, an inquiry that 18 necessarily implicates facts beyond the purview of 19 Almendarez-Torres. 20 Petitioners first contention is that the step two 21 determination under the PFO statute (whether a class A-I 22 sentence is warranted) consists of impermissible factfinding 23 under Blakely because it requires the judge to hold a Page 45 of 62 1 hearing and set forth findings of fact, beyond those of the 2 prior convictions, before she may impose a PFO sentence. 3 For the reasons that follow, we cannot say that the state 4 courts were unreasonable to reject this argument. 5 Whether the step two determination under the PFO 6 statute entails unconstitutional factfinding hinges not on 7 its nature, but its effect. 8 this aspect of the Supreme Court s jurisprudence in the wake 9 of Apprendi: judicial factfinding violates a defendant s A core principle has guided 10 right to a jury trial when it results in a sentence in 11 excess of the Apprendi maximum for a given offense. 12 Apprendi maximum, in turn, is the apogee of potential 13 sentences that are authorized based on factual predicates 14 obtained in compliance with the Sixth Amendment: those found 15 by the jury, those admitted by the defendant, and findings 16 of recidivism. 17 undertaken to select an appropriate sentence within an 18 authorized range up to and including the Apprendi maximum 19 does not offend the Sixth Amendment. 20 Amendment by its terms is not a limitation on judicial 21 power, but a reservation of jury power. 22 at 308. The In contrast, judicial factfinding that is For the Sixth Blakely, 542 U.S. The Sixth Amendment question, the Court has said, Page 46 of 62 1 is whether the law forbids a judge to increase a defendant s 2 sentence unless the judge finds facts that the jury did not 3 find (and the offender did not concede). 4 352 (citing Blakely, Cunningham and Booker) (emphases in 5 original). 6 Rita, 551 U.S. at Our analysis must therefore begin with the PFO statute 7 to determine the Apprendi maximum for each petitioner. That 8 assessment is necessarily guided by the construction placed 9 on the statute by the New York Court of Appeals, which, with 10 some emphasis, has interpreted the statute to authorize a 11 class A-I sentence based on the defendant s predicate felony 12 convictions alone: The statute authorizes indeterminate 13 sentencing once the court finds persistent felony offender 14 status, and defendants are eligible for persistent felony 15 offender sentencing based solely on whether they had two 16 prior convictions. 17 original). 18 [are] the sole determinant for whether a judge is 19 authorized to impose a PFO sentence, and that no additional 20 factfinding beyond the fact of two prior felony convictions 21 is required to impose the enhanced sentence. Id. at 68, 70 22 (emphasis in original). Rivera, 5 N.Y.3d at 66, 67 (emphasis in Rivera emphasized that the predicate felonies Page 47 of 62 1 In essence, Rivera construed the statutory directive 2 that a sentencing judge articulate the reasons for imposing 3 a class A-I sentence as one of procedure: the explanation 4 itself satisfies the statutory requirement, regardless of 5 whether it contains any facts beyond those respecting the 6 defendant s predicate felonies. 7 facts upon which the sentencing judge chooses to rely cannot 8 properly be understood as elements of the underlying 9 offense in terms of Apprendi, because they are not necessary Accordingly, any other 10 factual predicates to the imposition of the sentence. 11 Instead, they simply inform the judge s discretion to select 12 an appropriate sentence within those ranges authorized by 13 statute.12 12 Petitioners urge that the PFO statute is constitutionally defective because the authorized ranges within which a judge has the discretion to operate are not always continuous. That is, if a sentencing judge decides that a PFO sentence is not warranted, the judge may not impose just any lesser sentence. Instead, the judge must impose a sentence authorized for a second felony offender, which, in some circumstances, might be well below that authorized for a PFO. See Besser, 601 F.3d at 172 n.7 (referring to this potential discontinuity as a sentencing dead-zone ). For example, a defendant who stands convicted of a class D felony faces a sentence of between fifteen to twenty-five years and life as a PFO, but generally a maximum of seven years if the judge elects to sentence him as a second felony offender. See N.Y. Penal Law §§ 70.04(3)(c), 70.06(3)(d). Our Court is not persuaded that such a sentencing gap implicates the Sixth Amendment, for there is no constitutional mandate that a judge s discretion to reduce sentences exist unfettered. Nor is such a gap at all unique to the PFO scheme. For instance, a defendant convicted of his second class B felony drug offense may be sentenced to either (1) between two and twelve years in prison; or (2) probation, but the judge is not authorized to sentence the defendant to anything in between. See N.Y. Penal Law §§ 70.70(3)(b)(i), 70.70(3)(c), 60.04(5). In any event, the Supreme Court has never suggested much less clearly held that a sentencing scheme raises Sixth Amendment concerns simply because the court s discretionary reduction of a sentence will place the Page 48 of 62 Petitioners assert that Rivera s construction of the 1 2 PFO statute is belied by its text, specifically the 3 provision stating that [s]uch sentence may not be imposed 4 unless . . . [the court] is of the opinion that the history 5 and character of the defendant and the nature and 6 circumstances of his criminal conduct [warrant the 7 sentence.]. 8 added). 9 the defendant s history and character are factual predicates N.Y. Crim. Proc. Law § 400.20(1) (emphasis If, as petitioners contend, those findings as to 10 essential to the imposition of the A-I sentence, the PFO 11 statute would violate the Sixth Amendment. 12 Court of Appeals acknowledged as much: If we had construed 13 the statutes to require the court to find additional facts 14 about the defendant before imposing a recidivism sentence, 15 the statutes would violate Apprendi. 16 67. 17 stated that it did not read the law that way. 18 The New York Rivera, 5 N.Y.3d at But, as we have already observed, the court plainly Id. Whether our Court agrees or disagrees with the Court of 19 Appeals construction of New York law is of no moment. 20 As the Supreme Court has long held, state courts are the defendant in a significantly lower sentencing range. See Williams v. Artuz, 237 F.3d 147, 153-54 (2d Cir. 2001) (habeas relief barred where no Supreme Court holding supporting the petitioner s claim). Page 49 of 62 1 ultimate expositors of state law, Mullaney v. Wilbur, 421 2 U.S. 684, 691 (1975), and [n]either this Court nor any 3 other federal tribunal has any authority to place a 4 construction on a state statute different from the one 5 rendered by the highest court of the State. 6 Fankell, 520 U.S. 911, 916 (1997). 7 perverse for a federal court to discourage a state court 8 from searching for every reasonable construction of a 9 state statute to save [the] statute from Johnson v. More, it would be 10 unconstitutionality. 11 2896, 2929-30 & n.41 (2010) (quoting Hooper v. California, 12 155 U.S. 648, 657 (1895); see also United States v. 13 Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (collecting 14 cases discussing rule of constitutional avoidance); In re 15 Jacob, 86 N.Y.2d 651, 667 (1995) (same). 16 Skilling v. United States, 130 S. Ct. Of course, we recognize that we are bound only by the 17 New York Court of Appeals interpretation of what the terms 18 of the statute mean, and that we are not similarly 19 constrained by that court s pronouncement of the statute s 20 operative effect for constitutional purposes. 21 Wisconsin v. Mitchell, 508 U.S. 476, 483-84 (1993). 22 decision in Rivera was not merely a characterization of the Page 50 of 62 See Yet the 1 PFO statute s practical operation, but an exposition of its 2 terms. 3 sentence once the court establishes the defendant s status 4 as a persistent felony offender, and a judge may impose an 5 enhanced sentence based on the defendant s criminal history 6 alone. Under Rivera, the statute authorizes a class A-I Rivera, 5 N.Y.3d at 66, 70-71. 7 We must presume that the New York Court of Appeals 8 meant what it said: the statutory directive to consider the 9 history and character of the defendant, and the nature and 10 circumstances of his crime, is a procedural requirement that 11 is only triggered once a judge is already authorized to 12 impose the class A-I sentence. 13 would not be an error of law for a sentencing judge to 14 impose a class A-I sentence based solely on the recidivism 15 findings alone. 16 felony offender, a recidivism sentence cannot be held 17 erroneous as a matter of law, unless the sentencing court 18 acts arbitrarily or irrationally. 19 in New York, as they must, consistently rely upon that 20 construction in sentencing. 21 A.D.3d 727, 728, 860 N.Y.S.2d 602, 603 (2d Dep t 2008) 22 (noting that lower court s conclusory recitation According to Rivera, it Once a defendant is adjudged a persistent Id. at 68. Lower courts Compare People v. Bazemore, 52 Page 51 of 62 1 insufficient to comply with procedural requirements of the 2 PFO statute), and People v. Murdaugh, 38 A.D.3d 918, 919-20, 3 833 N.Y.S.2d 557, 559 (2d Dep t 2007) (same), with People v. 4 Tucker, 41 A.D.3d 210, 212, 839 N.Y.S.2d 15, 18 (1st Dep t 5 2007) (affirming PFO sentence based solely on lower court s 6 evaluation of defendant s criminal history), and People v. 7 Young, 41 A.D.3d 318, 319-20, 838 N.Y.S.2d 550, 551-52 (1st 8 Dep t 2007) (same). 9 Petitioners also observe that in Rivera, the Court of 10 Appeals reaffirmed that at step two of New York s PFO 11 scheme, the People retain the burden to show that the 12 defendant deserves a higher sentence, see 5 N.Y.3d at 68, 13 and argue that this shows that the effect of the statute is 14 to require additional factfinding before an A-I sentence may 15 be lawfully imposed. 16 characterization, for again, it misconstrues the effect of 17 the facts found at this step. 18 State s burden 19 Criminal Procedure Law § 400.20, by authorizing a hearing 20 on facts relating to the defendant s history and character, 21 does not grant defendants a legal entitlement to have those 22 facts receive controlling weight in influencing the court s We disagree with this Rivera s reference to the notwithstanding, the court made clear that Page 52 of 62 1 opinion. 2 similarly that a defendant adjudicated as a persistent 3 felony offender has a statutory right to present evidence 4 that might influence the court to exercise its discretion to 5 hand down a sentence as if no recidivism finding existed 6 (emphasis added)). 7 Id. (emphasis added); see also id. (indicating Thus, while the meaning of Rivera s reference to the 8 State s burden is not entirely clear it might, for 9 example, mean that the State is obligated to prove by a 10 preponderance of the evidence any of the facts it introduces 11 in an attempt to persuade the sentencing judge, or might 12 merely refer in an informal sense to the notion that it 13 typically will be incumbent upon the State to oppose 14 sentencing arguments advanced by defendants the Court of 15 Appeals was emphatic that the statute does not impose an 16 overarching evidentiary burden upon the State that must be 17 satisfied before the sentencing court may lawfully impose an 18 A-I sentence. 19 judge, in considering whether to impose the statutorily 20 authorized A-I sentence or instead a lesser sentence, may 21 implicitly rule on those facts he deems important to the 22 exercise of his sentencing discretion, the facts in In other words, although the sentencing Page 53 of 62 1 question do not pertain to whether the defendant has a 2 legal right to a lesser sentence, a distinction that makes 3 all the difference insofar as judicial impingement upon the 4 traditional role of the jury is concerned. 5 U.S. at 309 (emphasis in original). Blakely, 542 6 In sum, because the New York Court of Appeals has 7 interpreted step two of the PFO sentencing scheme as a 8 procedural requirement that informs only the sentencing 9 court s discretion, the New York courts were not 10 unreasonable to conclude that this consideration is unlike 11 the factfinding requirements invalidated in Blakely and 12 Cunningham.13 13 construction, the Apprendi maximum for each petitioner was 14 fixed at that of a class A-I felony once the recidivism 15 findings were established: an indeterminate sentence, with a Here, under the New York Court of Appeals 13 Indeed, as construed by the New York Court of Appeals, the step two inquiry under the PFO statute might well be analogized to the judicial consideration of statutory factors that Congress asks of district court judges in the federal system. See 18 U.S.C. § 3553(a). Although § 3553(a) applies to all federal sentences, whereas the challenged step two inquiry applies only to PFO sentences, that distinction does not bear on our Sixth Amendment analysis. Under both schemes the required discretionary assessment will have an impact on the sentence ultimately imposed, but not an unconstitutional impact, because the court is merely finding facts to aid in the selection of an appropriate sentence within a pre-determined range authorized by statute. And [w]e have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. United States v. Booker, 543 U.S. 220, 233 (2005). Just as [i]n a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail, Blakely, 542 U.S. at 309, a third-time felon in New York knows that he is risking twenty-five years to life in prison. Page 54 of 62 1 minimum term of between fifteen and twenty-five years, and a 2 maximum term of life in prison. 3 70.10(2). 4 considered beyond those respecting recidivism do not 5 implicate the Sixth Amendment, for they did not and could 6 not lead to a sentence in excess of that Apprendi maximum. 7 Petitioners first argument therefore does not persuade us 8 that habeas relief is warranted. 9 See N.Y. Penal Law § Under Rivera, any facts that the sentencing judge Petitioners second argument also focuses on the step 10 two determination required under the PFO statute. They 11 contend that notwithstanding the Court of Appeals 12 authoritative construction in Rivera the PFO statute 13 continues to require unconstitutional factfinding, because 14 even assuming the predicate felony convictions are 15 sufficient to authorize a PFO sentence, the mere fact of 16 those convictions does not suffice. 17 judge must form an opinion about the nature of those 18 convictions before imposing a PFO sentence, an endeavor that 19 necessarily entails factfinding beyond the scope of 20 Almendarez-Torres. 21 subsidiary facts and surrounding circumstances of those 22 convictions to arrive at a conclusion whether extended Instead, a sentencing That is, a court is required to consider Page 55 of 62 1 incarceration and life-time supervision will best serve the 2 public interest. 3 N.Y.3d at 70-71 (noting that a sentencing judge would be 4 authorized to impose a class A-I sentence with no further 5 factual findings, [i]f, for example, a defendant had an 6 especially long and disturbing history of criminal 7 convictions ); see also Young, 41 A.D.3d at 320, 838 8 N.Y.S.2d at 552 (affirming sentence imposed based on 9 court s discretionary evaluation of the seriousness of N.Y. Penal Law § 70.10; see Rivera, 5 10 defendant s criminal history ). Petitioners urge that this 11 assessment is a factfinding endeavor under Blakely, and must 12 therefore be reserved for a jury. 13 Assuming without deciding that petitioners are 14 correct in reading New York law to require a sentencing 15 judge to consider subsidiary facts respecting a defendant s 16 criminal history before imposing a PFO sentence, we are not 17 persuaded that such consideration equates to judicial 18 factfinding in violation of Blakely. 19 petitioners urge that the Almendarez-Torres exception to the 20 rule of Apprendi should be read narrowly (and the rule of 21 Blakely broadly) to forbid a sentencing judge from forming 22 an opinion about a defendant s criminal history, based on Page 56 of 62 At bottom, 1 facts underlying those prior convictions, before imposing a 2 recidivism sentence. 3 Supreme Court to command such a result.14 4 holdings from th[e] [Supreme Court] construing the 5 recidivism exception as narrowly as petitioners urge, it 6 cannot be said that the state court unreasonably applied 7 clearly established federal law. 8 U.S. 70, 77 (2006) (internal alterations and quotation marks 9 omitted); see also Lockyer v. Andrade, 538 U.S. 63, 72 Yet there is no clear holding of the Given the lack of Carey v. Musladin, 549 10 (2003) (declining to find a legal principle clearly 11 established in light of Supreme Court precedents that have 12 not been a model of clarity, and have not established a 13 clear or consistent path for courts to follow ). 14 The range of opinions authored by the Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), bespoke the lingering uncertainty surrounding the recidivism exception, and suggested that the Court might be poised to reconsider its holding in Almendarez-Torres. See id. at 25 (Souter, J., for a plurality) (questioning whether facts relating to a defendant s prior conviction could be considered by a sentencing judge in light of Apprendi); id. at 27-28 (Thomas, J., concurring in part and concurring in the judgment) (opining that the recidivism exception to Apprendi had been eroded and should be overruled); id. at 37-38 (O Connor, J., dissenting) (challenging the plurality s purported extension of Apprendi, and defending the traditional use of recidivism as a sentencing factor). In the intervening five years, however, the Court has not undertaken such a reconsideration of AlmendarezTorres, much less reversed or even limited its holding. Thus, in our own review of federal sentences, we have concluded that, despite the reservations expressed in Shepard, Almendarez-Torres continues to bind this court in its application of Apprendi. United States v. Snype, 441 F.3d 119, 148 (2d Cir. 2006); see also United States v. Bonilla, - - - F.3d - - -, No. 09-1799-cr, 2010 WL 3191402, at *8-9 (2d Cir. Aug. 13, 2010) (rejecting, as frivolous, contention that prior conviction exception of Almendarez-Torres should be overturned). Page 57 of 62 1 Given the lack of guidance as to the precise scope of 2 the recidivism exception, it is unsurprising that the 3 exception does not enjoy uniform application among appellate 4 courts charged with reviewing federal sentences. 5 example, some courts, including our own, have held that the 6 recidivism exception encompasses such related facts as the 7 type and length of sentence imposed, and whether the 8 defendant was on probation when the crime was committed. 9 United States v. Cordero, 465 F.3d 626, 632-33 n.33 (5th 10 Cir. 2006); see also United States v. Corchado, 427 F.3d 11 815, 820 (10th Cir. 2005); United States v. Williams, 410 12 F.3d 397, 402 (7th Cir. 2005); United States v. Fagans, 406 13 F.3d 138, 141-42 (2d Cir. 2005). 14 Circuit has concluded that the defendant s probationary 15 status at the time of the crime does not fall within the 16 recidivism exception. See Butler v. Curry, 528 F.3d 624, 17 636 (9th Cir. 2008). Yet, notably, the Ninth Circuit has 18 also acknowledged that the principle remains unsettled, and 19 accordingly has refused to grant habeas relief when a state 20 court has concluded that probationary status may 21 constitutionally be relied upon as a recidivism-based 22 sentence enhancement. For In contrast, the Ninth Kessee v. Mendoza-Powers, 574 F.3d Page 58 of 62 1 2 675, 679 (9th Cir. 2009). So too here. It might well be constitutionally 3 significant whether a sentencing judge is required to find, 4 for example, that a defendant s criminal history is 5 especially violent before imposing a sentence, or whether, 6 as in New York, a sentencing judge simply must find that the 7 nature of his criminal history justifies extended 8 incarceration and life-time supervision. 9 Blakely and Cunningham, it does not matter. Or, perhaps after The Supreme 10 Court may answer that question at some future time. 11 our Court cannot divine a clear answer from the Court s 12 existing holdings, AEDPA prevents us from faulting a state 13 court for selecting one reasonable conclusion over another. 14 For the time being, the recidivism exception remains, and 15 the Supreme Court has yet to assess a statute in light of 16 Blakely that tethers the authorization for an enhanced 17 sentence solely to findings respecting recidivism. 18 therefore cannot say that the state courts unreasonably 19 applied clearly established Supreme Court precedent in 20 concluding that the PFO statute is simply different in kind 21 from those invalidated in Blakely and Cunningham. 22 Page 59 of 62 But, if We * 1 2 * * To conclude, the state courts were not unreasonable to 3 discern an appreciable distinction between the PFO statute 4 and those struck down in Blakely and Cunningham: the 5 Washington and California statutes stripped sentencing 6 judges of any discretion to impose an elevated sentence 7 unless they found an additional fact not embodied in the 8 jury verdict. 9 kidnaping was entitled to a sentence of forty-nine to fifty- 10 three months, but for an additional finding of substantial 11 and compelling reasons justifying an exceptional sentence. 12 542 U.S. at 299. 13 continuous sexual abuse of a child was entitled to a 14 sentence of twelve years, but for an additional finding of 15 circumstances in aggravation. 16 In Blakely, a defendant found guilty of In Cunningham, a defendant found guilty of 549 U.S. at 277. In contrast, the PFO statute as interpreted by the 17 New York Court of Appeals creates a recidivist sentencing 18 scheme in which the only factual predicates necessary to 19 impose the enhanced sentence relate to the defendant s 20 criminal history. 21 recidivism findings are the touchstone: the predicate 22 felonies alone expand the indeterminate sentencing range Unlike in Blakely and Cunningham, Page 60 of 62 1 within which the judge has the discretion to operate, and 2 that discretion is cabined only by an assessment of 3 defendant s criminal history. 4 yet sounded the death knell for recidivist sentencing laws, 5 nor do its precedents counsel the extent to which a 6 sentencing judge may consider facts respecting recidivism to 7 guide the exercise of her sentencing discretion. 8 petitions are therefore denied. And the Supreme Court has not The 9 Conclusion 10 11 For the foregoing reasons, the order granting the writ 12 of habeas corpus to Petitioner-Appellee Portalatin is 13 REVERSED. 14 Appellants Morris and Phillips are AFFIRMED. 15 opinion, 601 F.3d 163, is hereby VACATED. The orders denying the writ to Petitioner- 16 17 18 19 20 21 22 Page 61 of 62 The panel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Appendix A. New York Penal Law § 70.10: 1. Definition of persistent felony offender. (a) A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision. (b) A previous felony conviction within the meaning of paragraph (a) of this subdivision is a conviction of a felony in this state, or of a crime in another jurisdiction, provided: (i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor; and (ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and (iii) that the defendant was not pardoned on the ground of innocence; and (iv) that such conviction was for a felony offense other than persistent sexual abuse, as defined in section 130.53 of this chapter. (c) For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed to be only one conviction. 2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized . . . for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court s opinion shall be set forth in the record. Page 62 of 62 1 2 3 4 5 6 7 8 Portalatin v. Graham 07-1599 9 the panel opinion, Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), 10 11 WINTER, Circuit Judge, with whom Judges Pooler and Sack concur, dissenting: I respectfully dissent. My dissent assumes familiarity with and will be limited to a response to Judge Wesley s opinion. These appeals concern petitions for writs of habeas corpus 12 in which the petitioners challenge the constitutionality of what 13 actually happened in their sentencing proceedings. 14 claim that the sentencing judges enhanced petitioners sentences 15 beyond the standard maximum for their crimes of conviction based 16 on the sentencing judges findings of facts that were not found 17 by a jury, admitted by petitioners, or sheltered by the Supreme 18 Court s decision in Almendarez-Torres v. United States, 523 U.S. 19 224, 247 (1998), which held that the fact of prior conviction 20 need not be treated as an element of criminal offense. 21 kind of factfinding occurred with regard to each of the 22 petitioners has not been seriously questioned, and that extensive 23 factfinding occurred in one of the cases was expressly conceded 24 in the in banc oral argument by the Solicitor General of New 1 Petitioners That some My colleagues rely heavily upon AEDPA deference1 but 1 York. 2 identify only one constitutional argument dispositive of the 3 claims of all petitioners -- regarding the applicable maximum 4 sentences for Apprendi2 purposes -- and that one has been 5 specifically rejected by the Supreme Court in Cunningham v. 6 California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 7 U.S. 296 (2004). 8 opinion never responds directly to petitioners claims and 9 proffers no other identifiable constitutional theory to which Except for that discussion, my colleagues 10 AEDPA deference can be given. 11 discussion of New York Penal Law Section 70.10 and New York 12 Criminal Procedure Law Section 400.20, New York s Persistent 13 Felony Offender ( PFO ) sentencing statute, that demonstrates 14 only that the PFO statute can be applied in a constitutional 15 manner. 16 statute but rather to the manner in which the statute was 17 actually applied to each petitioner.3 Instead, it undertakes an abstract However, these appeals are not facial challenges to the 1 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d. Cir. 2009) ( When the state court has adjudicated the merits of the petitioner s claim, we apply the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which we may grant a writ of habeas corpus only if the state court s adjudication was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. (quoting 28 U.S.C. § 2254(d))). 2 Apprendi v. New Jersey, 530 U.S. 466 (2000). 3 To dispel any doubt that the original panel had an accurate view of New York law, I set out the details of the original panel s understanding of sentencing under the PFO statute in Exhibit A to this opinion. To avoid any claim that I am misstating the various steps or legal effects of PFO sentencing, the Appendix cites as support, where pertinent, the PFO statute, People v. Rivera, 5 N.Y.3d 61 (N.Y. 2005), and the majority opinion. 2 1 The dissent will first discuss the sentencings of the three 2 remaining petitioners (five petitioners were involved in the 3 panel proceeding). 4 with regard to the four issues at stake in this proceeding, 5 giving full AEDPA deference to all relevant arguments: 6 are the maximum sentences applicable to petitioners for Apprendi 7 purposes; (ii) whether judicial factfinding altered the maximum 8 sentence applicable to each petitioner; (iii) if so, whether such 9 judicial factfinding was permissible under Almendarez-Torres; and It will then turn to the majority opinion (i) what 10 (iv) whether all of the judicial factfinding was permissible 11 because it involved traditional sentencing considerations. 12 a) The Petitioners Sentencings 13 The sentencings of the three petitioners represent a fair 14 cross-section of the various issues at stake in this in banc.4 15 1) Phillips 16 Phillips sentencing was the simplest. He was convicted of 17 a Class C felony, robbery in the second degree, carrying a 18 maximum sentence as a second felony offender of 15 years. 19 Penal Law § 70.06(3)(b). 20 convictions: N.Y. Phillips had six prior felony two burglaries in the third degree; grand larceny 4 There is a difficulty in analyzing the various sentencing proceedings arising from the emergence of the Almendarez-Torres issue at the in banc stage. None of the sentencing courts believed it necessary to distinguish between facts relating to the predicate PFO convictions that might be sheltered under Almendarez-Torres and other facts relating to the character, history, and criminal conduct of the particular defendant. The original panel remanded for an examination of harmless error claims. Besser, 601 F.3d at 188-89. That remand would have included claims that some facts might be sheltered under the Almendarez-Torres umbrella. 3 1 in the fourth degree; attempted robbery in the second degree; 2 attempted robbery in the third degree; and attempted criminal 3 sale of a controlled substance in the third degree. 4 sentencing court found: The 5 6 7 8 9 10 11 12 13 14 15 16 This case arguably raises serious Almendarez-Torres issues. 17 principal document in the record apparently is the prosecution s 18 PFO motion containing Phillips legal history. 19 statement of the sentencing court, while clearly a finding of 20 fact for Apprendi purposes,5 may have been limited to inferences 21 drawn solely from the predicate PFO convictions and felony of 22 conviction and arguably fall within an interpretation of 23 Almendarez-Torres entitled to AEDPA deference. 24 Torres issue, if raised by the prosecutors, could have been 25 addressed by the district court pursuant to the original panel 26 remand. Defendant has demonstrated time and again, throughout his entire adult life, that he cannot be trusted to function normally in society and that he is unwilling and unable to rehabilitate himself. The history and character of defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest. CPL 400.20(1); PL 70.10. 5 The The conclusory The Almendarez- Conclusory statements such as these made by the sentencing court have been treated by the Supreme Court as findings of fact. See Cunningham v. California, 549 U.S. 270, 277, 288-89 (2009) (treating sentencing judge s finding of circumstances in aggravation or mitigation of the crime as findings of fact); Blakely v. Washington, 542 U.S. 296, 299, 303-04 (2004) (treating sentencing judge s finding of substantial and compelling reasons justifying an exceptional sentence as findings of fact). 4 1 2) Portalatin 2 Portalatin was convicted of second degree kidnapping and 3 first degree robbery, both Class B felonies carrying a maximum of 4 25 years as a second felony offender. 5 70.06(3)(a). 6 somewhat more extensive conclusions, including some facts outside 7 any reasonable interpretation of Almendarez-Torres. 8 prosecution moved by letter for PFO sentencing based on two prior 9 felony convictions, attempted burglary in the second degree and 10 attempted criminal sale of a controlled substance in the fifth 11 degree. 12 history of Portalatin as well as a report prepared for the 13 defense that covered virtually all aspects of his life. 14 court concluded: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 N.Y. Penal Law § Portalatin s sentencing involved similar but The The sentencing court also had before it the legal [L]ooking back on the history of this defendant, and having read these reports . . . . [H]e began his criminal career in 1989, and we have beginning from that point on, the failure to take advantage of opportunities that might have provided drug treatment, that might have in some way assisted him. We have bench warrants repeatedly. We have parole revocations, and repeated parole revocations to the extent that it s only when these sentences maxed out that he finally is released, and no sooner is he released than there is a new crime. . . . . He certainly has earned a persistent adjudication as I look at this Rap sheet and the circumstances of this offense and other offenses, and I m going to adjudicate him a persistent felony offender. 5 The 1 2 Some of the facts found may be sheltered by an arguably 3 reasonable interpretation of Almendarez-Torres. 4 opportunities for drug treatment and the issuance of bench 5 warrants may not be facts relating to PFO convictions, although 6 reliance on them may well have been harmless. 7 could have been resolved on the original panel remand. However, missed All these matters 8 3) Morris 9 Morris s sentencing involved extensive factfinding. 10 his conviction on 16 counts of criminal contempt for violating 11 orders prohibiting contact with his girlfriend, Class E felonies, 12 the prosecutor entered evidence of convictions for (i) attempted 13 robbery in the third degree; (ii) grand larceny in the fourth 14 degree and attempted criminal possession of a controlled 15 substance in the fifth degree (deemed in the aggregate to be one 16 conviction pursuant to N.Y. Penal Law Section 70.10(1)(c)); and 17 (iii) robbery in the third degree. 18 Morris as a PFO. 19 between a Class E felony second offender sentence with a maximum 20 of 4 years and a Class A-I sentence with a maximum of life. 21 Penal Law § 70.06(3)(d). 22 After This evidence qualified The pertinent choice in Morris s case was N.Y. After an adjournment of the sentencing hearing to obtain a 23 psychiatric examination of Morris, the sentencing judge 24 considered the evidence. 25 alia, numerous documents such as the psychiatric evaluation, This consideration included, inter 6 1 tapes of 911 calls from Morris s girlfriend or her neighbors, 2 evidence of numerous instances of obscene behavior on subways, 3 numerous instances of violence or assault on subways, 4 contemptuous behavior in court, contemptuous behavior toward a 5 female prison guard, and a negative report on Morris from the 6 Department of Probation. 7 of his girlfriend s testimony as to his lack of violent behavior. 8 9 The defense evidence consisted largely After hearing argument by counsel, the court concluded that Morris should receive a Class A-I sentence. The court rendered 10 extensive written findings of fact formally labeled Findings of 11 Fact. 12 to the girlfriend s testimony. 13 prosecution s evidence described above and found that Morris 14 exhibited a propensity for violence, a disturbing lack of self- 15 control and a pattern of abusive and contemptuous behavior, 16 particularly toward women. 17 met their burden of establishing by a preponderance of the 18 evidence that a sentence [as a Class A-I felon] is warranted. 19 The sentencing was upheld on appeal. 20 The court made a negative credibility finding with regard The court credited the It concluded that the People . . . The record of Morris s sentencing indicates consideration by 21 the court of many actions and characteristics of Morris, and 22 conflicting testimony, that are not related to or inferences 23 drawn from his prior felonies or felony of conviction. 24 record also indicates that the sentencing judge engaged in what 7 The 1 he deemed to be factfinding to choose between the second offender 2 Class E felony sentence with a four year maximum, and a Class A-I 3 sentence with a minimum of 15 years and maximum of life. 4 b) The Majority Opinion 5 Blakely/Cunningham prohibit a sentencing court from finding 6 facts that were not found by a jury, admitted by a defendant, or 7 sheltered by Almendarez-Torres, where such facts are relied upon 8 to elevate the otherwise applicable maximum sentencing range to 9 one with a higher maximum. Cunningham v. California, 549 U.S. 10 270, 282-83 (2007); Blakely v. Washington, 542 U.S. 296, 303-04 11 (2004). 12 factfinding and altering of the otherwise applicable maximum 13 sentence. 14 Each petitioner argues that his sentencing involved such My colleagues argue that: (i) the maximum sentence 15 applicable to all petitioners was, for Apprendi purposes, life; 16 (ii) once two prior felony convictions are shown, the second 17 step need not involve dispositive factfinding; (iii) a 18 reasonable interpretation of Almendarez-Torres, if AEDPA 19 deference is shown, allows the sentencing court to find facts 20 relating to the predicate felonies sufficient to impose a Class 21 A-I sentence; and (iv) nothing occurs under the PFO statute that 22 is not recognized as discretionary sentencing using traditional 23 factors. 24 I deal with each argument seriatim. 1) Giving All Due AEDPA Deference, What is the Apprendi 8 1 2 Maximum for Each Petitioner? My colleagues join the New York Court of Appeals in 3 reasoning that because life imprisonment is the highest sentence 4 to which a defendant is exposed under the PFO statute, life 5 imprisonment is the maximum sentence for Apprendi purposes.6 6 my colleagues are correct that life imprisonment is the maximum 7 sentence to which the petitioners were subject for Apprendi 8 purposes, then I would agree that the petitions must be denied. 9 But I do not agree. If As my colleagues own description of Blakely indicates,7 10 11 precisely the same argument was made in Blakely and rejected by 12 the Supreme Court, which stated: 13 14 15 16 17 18 19 20 21 The State nevertheless contends that there was no Apprendi violation because the relevant statutory maximum is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021(1)(b). It observes that no exceptional sentence may exceed that limit. See § 9.94A.420. Our precedents make clear, however, that the statutory maximum for Apprendi purposes is the maximum sentence 6 My colleagues opinion states: [U]nder the New York Court of Appeals construction, the Apprendi maximum for each petitioner was fixed at that of a class AI felony once the recidivism findings were established: an indeterminate sentence, with a minimum term of between fifteen and twenty-five years, and a maximum term of life in prison. Under Rivera, any facts that the sentencing judge considered beyond those respecting recidivism do not implicate the Sixth Amendment, for they did not -and could not -- lead to a sentence in excess of that Apprendi maximum. Maj. op. 54 (internal citation omitted). 7 My colleagues quoted Blakely as saying that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Maj. op. 29 (quoting Blakely, 542 U.S. at 303). They also observed that this statutory maximum may not necessarily coincide with the maximum penalty prescribed by the penal code. Id. 9 1 2 3 4 5 Blakely, 542 U.S. at 303. 6 issue is underlined by Justice O Connor s dissent. 7 ( Under the majority s approach, any fact that increases the 8 upper bound on a judge s sentencing discretion is an element of 9 the offense. ) (O Connor, J., dissenting). a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. That the Court directly ruled on this Id. at 318 10 Each petitioner concedes that he was eligible for, 11 subject to, etc., a Class A-I sentence solely because of his 12 prior multiple felonies. 13 findings of facts as to which the prosecution bore the burden of 14 proof and that were not found by the jury (discussed in the next 15 subsection), he had to be sentenced within a range carrying a 16 lower maximum. 17 between sentencing within a range with a lower maximum and 18 sentencing to a Class A-I term. 19 on point. 20 Each also argues that without the No party disputes the existence of a choice Blakely is therefore directly Cunningham reaffirmed Blakely in this respect. 549 U.S. at 21 288-89 (using Blakely s definition of the Apprendi maximum to 22 find California s sentencing scheme unconstitutional). 23 Cunningham, moreover, involved non-continuous sentences, as is 24 the case in Morris s petition. 25 decision directly contradicts the statement in Footnote 12 of my 26 colleagues opinion that the Supreme Court has never suggested In that regard, the Cunningham 10 1 that non-continuous schemes raise Sixth Amendment concerns. 2 op. 48. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Maj. In the very heart of the Court s holding, it stated: California s Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham s sentencing judge had no discretion to select a sentence within a range of 6 to 16 years. His instruction was to select 12 years, nothing less and nothing more, unless he found facts allowing the imposition of a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-areasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies. Cunningham, 549 U.S. at 292. Similarly, in Morris s case, the sentencing judge had to 21 choose between two ranges: 22 -- an eleven-year gap between the maximum in the lower range and 23 the minimum in the higher range. 24 directly on point. 25 1.5 to 4 years and 15 years to life Cunningham is, therefore, also The reasoning adopted by my colleagues with respect to 26 analyzing the maximum sentence for Apprendi purposes has thus 27 been expressly rejected by the Supreme Court, and AEDPA deference 28 is inapplicable. 29 Cir. 2009) (AEDPA deference not applicable where state court s 30 adjudication was contrary to, or involved an unreasonable 31 application of, clearly established Federal law as determined by 32 the Supreme Court of the United States ) (internal quotation See Dolphy v. Mantello, 552 F.3d 236, 238 (2d 11 1 marks omitted). 2 maximum second felony offender sentence for their crime of 3 conviction. 4 imprisonment. The Apprendi maximum for each petitioner is the That maximum in each case is less than life 5 2) Factfinding for Apprendi Purposes 6 Believing that the immediately preceding discussion 7 establishes that petitioners PFO sentencing involved a choice 8 between sentencing ranges with different maximum sentences for 9 Apprendi purposes, I turn to the next question: whether in 10 petitioners cases that choice was based on the sentencing 11 judges findings of facts beyond those found by the jury in the 12 felony of conviction or admitted by the defendant. 13 findings are sheltered by Almendarez-Torres is dealt with in the 14 next subsection. 15 Whether the Conspicuously absent from my colleagues opinion is any 16 clear denial that, in petitioners cases, step two -- 17 consideration of evidence relating to the character, history, and 18 nature of the criminal conduct of the defendant -- involved 19 factfinding beyond the multiple prior felonies. 20 Instead the opinion is at pains to establish that, under the 21 PFO sentencing statute, two prior felonies alone authorize 8 a 22 Class A-I sentence, that defendants are eligible for 9 or 8 Maj. op. 47, 50, 51. 9 Maj. op. 47. 12 1 subject to 10 a Class A-I sentence based solely 11 on two prior 2 felonies; that two prior felonies are the sole determinant for 3 whether a judge is authorized to impose a PFO sentence ;12 that 4 no additional factfinding beyond the fact of two prior felony 5 convictions is required 13 to impose a PFO sentence; that two 6 prior felony convictions are necessary and sufficient 14 to 7 impose the enhanced sentence; and that the second step findings 8 are not necessary for15 or essential to 16 a recidivist 9 sentence. 10 None of the quoted phrases purport to be mandatory, i.e., 11 they do not state that two predicate felonies alone require a 12 Class A-I sentence. 13 that the multiple predicate felonies alone: 14 sentencing process, (ii) expose the defendant to the possibility 15 of a Class A-I sentence, and (iii) may be sufficient in and of 16 themselves to justify such a sentence. 17 disputed, and none of that disposes of any of the appeals before 18 us. 10 11 12 13 14 15 16 All that the phrases purport to state is Maj. op. 10. Maj. op. 38, 47, 51. Maj. op. 47. Maj. op. 47. Maj. op. 37. Maj. op. 48. Maj. op. 49. 13 (i) trigger the PFO However, none of that is 1 All of the petitioners assert colorable claims that their 2 Class A-I sentences were based on factfinding going beyond the 3 predicate felonies, without which a second felony offender 4 sentencing range with lower maximum sentences would concededly 5 have been applicable. 6 successfully defended the PFO statute against a facial attack by 7 showing that the predicate felonies may alone justify a Class A-I 8 sentence, while not addressing the claims before us that 9 factfinding beyond the predicate felonies actually occurred and 10 To put it another way, my colleagues have enhanced the sentences of the petitioners. 11 Without linking their discussion to any relevant and 12 identifiable constitutional theory, my colleagues also downplay 13 the importance of the second step, describing it as procedural, 14 one that merely informs the exercise of sentencing discretion. 15 Maj. op. 51, 54. 16 that In fact, the Supreme Court has expressly held 17 18 19 20 21 22 23 24 25 26 Cunningham, 549 U.S. at 290 (citing Blakely, 542 U.S. at 305 & 27 n.8). 28 procedural or whether it informs discretion, the second step in 29 the case of all petitioners involved which of two sentencing broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. Regardless of whether the second step is labeled 14 1 ranges was to be selected and the choice was between ranges with 2 different maximum sentences. 3 Conceding that facts beyond the felony convictions may be 4 considered in the second step,17 my colleagues also quote Rivera 5 to the effect that defendants do not have a legal entitlement to 6 have those facts receive controlling weight in influencing the 7 court s opinion. 8 N.Y.3d 61, 68 (N.Y. 2005)) (emphasis omitted). 9 defendant has no legal entitlement to prevail at the second 10 Maj. op. 52 (quoting People v. Rivera, 5 Of course, the step or to have his or her evidence given controlling weight. 11 No petitioner is arguing that showing up at a sentencing 12 hearing and expressing remorse entitled him to sentencing as a 13 second felony offender as a matter of law. 14 that judicial factfinding took place and unconstitutionally 15 guided the choice between the two legally available sentencing 16 ranges. 17 Each is arguing only My colleagues make a final attempt to downplay the second 18 step. 19 reasons by the sentencing judge for imposing a Class A-I range 20 sentence rather than a lower range sentence as intended only to 21 facilitate[] an appellate review function that is distinct from They describe the statutory requirement of a statement of 17 My colleagues opinion states: [A]ny facts that the sentencing judge considered beyond those respecting recidivism do not implicate the Sixth Amendment, for they did not -- and could not -- lead to a sentence in excess of that Apprendi maximum. Maj. op. 54. The Apprendi maximum issue is discussed supra. 15 1 the issue of whether the PFO sentence was lawfully imposed. 18 2 Maj. op. 40. 3 lawfully imposed means only that once two prior felonies have 4 been proven, a defendant is legally eligible for, subject to, 5 etc. a Class A-I sentence. 6 it is also conceded that an appellate court can overturn the 7 lawfully imposed sentence and resentence (or order 8 resentencing) to a legally available lower range. 9 no one claims that a mistaken finding of fact relating to a That characterization is correct so far as It cannot mean more than that because For example, 10 defendant s prior bad conduct on which a sentencing judge based a 11 Class A-I sentence could not be the ground for overturning on 12 appellate review a Class A-I sentence on appeal. 13 hardly be said that no significant factfinding takes place in the 14 second step. 15 If not, it can My colleagues avoidance of a definitive answer to whether 16 factfinding beyond the predicate felonies may occur in the second 17 step or to whether it did occur in the case of any of the 18 petitioners, must be contrasted with the position taken by 19 appellate counsel for the prosecution and by the Rivera decision 20 itself. In the in banc oral argument, the New York Solicitor 18 This is a peculiar basis for downplaying the significance of the second step, given that this court frequently remands appeals on the ground that the sentencing judge s statement of reasons is not sufficient to permit appellate review. See, e.g., United States v. Richardson, 521 F.3d 149, 159-60 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 58 (2d Cir. 2008); United States v. Hall, 499 F.3d 152, 156-57 (2d Cir. 2007). 16 1 General conceded that facts were found in the sentencing 2 proceedings of the petitioners.19 3 York Court of Appeals used the words fact or factfinding 4 freely with regard to the second step. 5 N.Y.3d at 67-68 (referring repeatedly to the sentencing court s 6 consideration of facts found in the second step). 7 neither limited the inquiry to predicate crimes nor downplayed 8 the importance of the second step. 9 described that step as one in which the sentencing court . . . 10 will consider holistically the defendant s entire circumstances 11 and character, including traits touching upon the need for 12 deterrence, retribution and rehabilitation unrelated to the crime 13 of conviction. Moreover, in Rivera, the New See e.g., Rivera, 5 The court The Court of Appeals Rivera, 5 N.Y.3d at 69 n.8. 14 With regard to the petitioners before us, the sentencing 15 judges showed no signs of viewing the second step as anything but 16 involving the consideration of evidence and the finding of facts. 17 As noted, in Morris s case, the sentencing judge made extensive 18 findings of fact and formally labeled them as such. 19 8. 20 See supra at Finally, the constitutional significance of the second step 19 SG: Court: SG: The judge found that [Morris] was a persistent felony offender on the two prior crimes and found quite a number of additional facts. . . . With all three petitioners here, facts were found and were relied upon in imposing the PFO sentence that went beyond any of the convictions, isn t that right? I believe that is true, [although] I m not as familiar with the Portalatin facts. 17 1 is underscored by the statutory provision that the burden of 2 proof is upon the people in this phase. 3 400.20(5). 4 be proven beyond a reasonable doubt. 5 [m]atters pertaining to the defendant s history and character 6 and the nature and circumstances of his criminal conduct need be 7 proven only by a preponderance of the evidence. 8 relevant evidence must be considered and the ordinary rules of 9 evidence, save for those relating to privileges, do not apply. N.Y. Crim. Proc. Law § In the first step, the PFO predicate convictions must Id. In the second step, Id. All 10 Id. 11 that the defendant deserves the [Class A-I] sentence. 12 at 68. 13 this statement means. 14 formulation pertinent to sentencing generally -- including the 15 federal system, see 18 U.S.C. § 3553 -- where a range of 16 sentences is permissible. 17 prosecution failed to prove by a preponderance of the evidence 18 that one or more of the petitioners deserve, a Class A-I 19 sentence, the petitioner would have been sentenced to a range 20 with a lower maximum. 21 In Rivera s own words, the People retain the burden to show 5 N.Y.3d My colleagues state that it is not entirely clear what Maj. op. 53. In fact, it is a routine It means what it says. If the Rivera, 5 N.Y.3d at 68 In short, however characterized, the second step with regard 22 to the present petitioners involved the presentation of evidence 23 upon which the sentencing judge found facts and chose between 24 sentencing ranges with different maximum sentences. 18 Nothing in 1 my colleagues opinion, save for the discussion of Almendarez- 2 Torres, responds to the claim of each petitioner that factfinding 3 altered the sentencing and applicable maximum range. 4 5 6 3) Giving Full AEDPA Deference, What is the Effect of Almendarez-Torres? The decision in Almendarez-Torres has played a minor role in 7 this litigation until now. 8 courts in the present petitions mentioned it, much less attempted 9 to distinguish evidence or facts sheltered by Almendarez-Torres None of the New York sentencing 10 from those not sheltered. 11 mentioned Almendarez-Torres only with regard to proving the 12 existence of prior convictions. 13 original panel s remand would have allowed the district courts to 14 consider whether facts found by New York sentencing courts in 15 each of appellants sentencing hearings were sheltered by 16 Almendarez-Torres. In Rivera, the Court of Appeals 5 N.Y.3d at 67. Certainly the 17 My colleagues discussion of Almendarez-Torres concerns in 18 part the breadth of that decision with regard to what facts are 19 sheltered by it. 20 shelters only the existence of the fact of the prior convictions; 21 or (ii) it shelters only the existence of prior convictions and 22 matters proven to a jury or admitted by the defendant in 23 connection with the convictions; or (iii) it shelters the 24 existence of the convictions, matters proven or admitted, and There are many variations here: 19 e.g., (i) it 1 matters relating to the convictions not proven to a jury or 2 admitted by the defendant; and (iv) inferences drawn from any of 3 the above. 4 56-57. 5 My colleagues give AEDPA deference to (iv). Maj. op. I will not quarrel with their conclusion because it is 6 largely irrelevant at this stage. 7 shown to (iv), it disposes of none of the appeals before us, 8 except perhaps for Phillips, as to whom the failure to 9 rehabilitate may be an inference drawn solely from the predicate Even if AEDPA deference were 10 convictions. 11 evidence was proffered and mentioned by the sentencing judges 12 that was not even arguably covered by Almendarez-Torres. 13 consideration of Almendarez-Torres might identify some sheltered 14 facts and then lead to a conclusion that other findings were 15 harmless -- a difficult conclusion perhaps in Morris s case -- 16 the panel left that to the remand. 17 In the other sentencing proceedings before us, While I must also note that my colleagues discussion of 18 Almandarez-Torres implies that the PFO statute at the second step 19 limits consideration, or findings, of facts to matters sheltered 20 by that decision. 21 where a sentencing judge . . . consider[s] subsidiary facts 22 respecting a defendant s criminal history before imposing a PFO 23 sentence ). 24 what actually happened at their sentencing hearings, where facts Maj. op. 56 (addressing only the situation Again, they fail to address appellants claims of 20 1 going beyond matters relating to the prior convictions were 2 allegedly found. 3 4 5 4) Giving Full AEDPA Deference, Is Factfinding Regarding Traditional Sentencing Factors Free of Apprendi Restraints? Reference has been made throughout these proceedings to the 6 fact that the second step and its factfinding involve the 7 consideration of traditional sentencing factors and is not unlike 8 the requirements of Section 3553(a).20 9 point irrelevant. 10 I agree but find the Blakely/Cunningham radically altered the use of traditional 11 sentencing factors where findings of fact and conclusions 12 regarding traditional factors alter maximum sentences. 13 each of those cases involved sentencing enhancements altering 14 maximum sentences based on generalized findings well within the 15 range of traditional factors -- substantial and compelling 16 reasons justifying an exceptional sentence, Blakely, 542 U.S. at 17 299, and circumstances in aggravation or mitigation of the 18 crime, Cunningham, 549 U.S. at 277 -- but were still held 19 unconstitutional. 20 certainly an expression of traditional factors, but it cannot be 21 used to alter maximum sentences. Indeed, As for Section 3553(a), that provision is 20 That is in fact what Booker was My colleagues state that the step two inquiry under the PFO statute might well be analogized to the judicial consideration of statutory factors that Congress asks of district court judges in the federal system. Maj. op. 54 n.13. 21 1 about.21 2 CONCLUSION 3 Except for the argument made with regard to maximum 4 sentences for Apprendi purposes, which has been specifically 5 rejected by the Supreme Court, nothing in my colleagues opinion 6 identifies a constitutional argument that even arguably disposes 7 of Portalatin s and Morris s claims regarding factfindings 8 altering their maximum sentences. 9 dissent. 21 I therefore respectfully Some of the briefing has suggested that while the PFO statute as once applied violated Blakely/Cunningham, Rivera altered its application in a way that renders it constitutional. Whether the PFO procedures are now different is irrelevant with regard to the present petitions because the petitioners claim that the procedure under which they were sentenced was unconstitutional. See Liberta v. Kelly, 839 F.2d 77, 81 (2d Cir. 1988) (defendant could challenge the constitutionality of the criminal statute under which he was convicted, even where the court affirmed his conviction by excising prospectively the allegedly unconstitutional portions, because defendant had been convicted under the unaltered statute). In any event, if New York s application of the PFO statute has been altered, the alteration can be considered when cases involving petitioners subject to the newly altered procedures arise. 22 1 Exhibit A 2 3 Using a Class E felony as an example, the original panel s 4 view of the mechanics (what happens) of PFO sentencing is as 5 follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 The defendant is convicted of a felony. The maximum sentence for a first or second felony offender is 4 years. N.Y. Penal Law §§ 70.00(2)(e), 70.06(3)(e). After the conviction, the prosecution enters into evidence certified convictions or gets a stipulation from the defense, sufficient to prove beyond a reasonable doubt two or more prior felony convictions of the defendant. Maj. op. 8. Because of the prior convictions, and without more, the defendant has the status of a persistent felony offender and is eligible for or subject to a Class A-I felony sentence of 15 years to life. See People v. Rivera, 5 N.Y.3d 61, 66-67 (N.Y. 2005) (citing N.Y. Penal Law § 70.10(1)(a)); Maj. op. 10-11. The sentencing judge has, by virtue of the prior felony convictions alone, authori[ty] to impose a Class A-I sentence. See Rivera, 5 N.Y.3d at 66; Maj. op. 47. The authority to impose a Class A-I sentence is not absolute but is circumscribed. Before a Class A-I sentence may be imposed, the prosecution retain[s] the burden to show that the defendant deserves the [Class A-I sentence]. Rivera, 5 N.Y.3d at 68; see also N.Y. Crim. Proc. Law § 400.20(5). The defendant may present evidence at a hearing to influence the sentencing court to exercise its discretion to hand down a sentence as if no recidivism finding existed. Rivera, 5 N.Y.3d at 68; see also N.Y. Crim. Proc. Law § 400.20(1)); Maj. op. 9-10, 52. The sentencing judge has discretion to impose a Class A-I sentence or a lesser authorized sentence. See Rivera, 5 N.Y.3d 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 at 67; N.Y. Penal Law § 70.10(2); N.Y. Crim. Proc. Law § 400.20(1). The exercise of this discretion is guided by factfinding based on the evidence adduced at the sentencing hearing, including the prior felonies and the felony of conviction. See Rivera, 5 N.Y.3d at 66-68; N.Y. Penal Law § 70.10(2); N.Y. Crim. Proc. Law § 400.20(1)-(2); Maj. op. 5253. The choice between a Class A-I sentence and a lower sentence would, in the case of a Class E felony, be a choice between: (i) a Class A-I sentence with a range of a minimum of 15 years to a maximum of life, and (ii) a first or second felony offender sentence with a maximum of 4 years. Compare N.Y. Penal Law §§ 70.00(2)(e), 70.06(3)(e), with id. § 70.00(2)(a); see Rivera, 5 N.Y.3d at 68-69 n.7 (citing People v. Williams, 658 N.Y.S.2d 264, 265 (App. Div. 1997) (finding a Class A-I sentence to be an improvident exercise of discretion and ordering the resentencing of the defendant as a second felony offender )); see also People v. Jennings, 822 N.Y.S.2d 501, 502 (App. Div. 2006) ( If the sentencing court had not found defendant a persistent felony offender, the maximum sentence it could have imposed would have been an indeterminate term of two to four years . . . . ); Maj. op. 10 (discussing possible sentences in the case of a Class D felony). The sentencing judge may reach a variety of conclusions regarding the exercise of discretion. The nature and number of the prior felonies and the evidence leading to the felony of conviction may themselves be sufficient to justify the Class A-I sentence. See Rivera, 5 N.Y.3d at 70-71 ( If, for example, a defendant had an especially long and disturbing history of criminal convictions, a persistent felony offender sentence might well be within the trial justice s discretion even with no further factual findings. ). Or the prior felony convictions and felony of conviction along with other evidence may be sufficient to justify a Class A-I felony sentence. See 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Rivera, 5 N.Y.3d at 67-69; N.Y. Penal Law § 70.10(2); N.Y. Crim. Proc. Law § 400.20(1)(2). Or the evidence may be such that the sentencing judge in his or her discretion imposes a first or second felony offender sentence. See Rivera, 5 N.Y.3d at 67 ( If, based on all it heard, the court s view of the facts surrounding defendant s history and character were different, the court might well have exercised its discretion to impose a less severe sentence. ); N.Y. Penal Law § 70.10(2); N.Y. Crim. Proc. Law § 400.20(1). Imposition of a Class A-I persistent felony offender sentence rather than a first or second felony offender sentence is subject to appellate review under a deferential standard. See Rivera, 5 N.Y.3d at 68 ( [O]nce a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally. The court s opinion is, of course, subject to appellate review, as is any exercise of discretion. ). If an appellate court vacates the Class A-I sentence, it must substitute a first or second felony offender sentence with a maximum of 4 years in the case of a Class E felony or remand for that purpose. See Rivera, 5 N.Y.3d at 69 n.7 (citing Williams, 658 N.Y.S.2d at 265 (finding a Class A-I sentence to be an improvident exercise of discretion and ordering the resentencing of the defendant as a second felony offender ); N.Y. Crim. Proc. Law § 470.20; see also People v. LaSalle, 95 N.Y.2d 827, 829, 734 N.E.2d 749, 750 (2000) (memorandum decision); Jennings, 822 N.Y.S.2d at 502 (finding that if the sentencing court had not found defendant a persistent felony offender, the maximum sentence it could have imposed would have been an indeterminate term of two to four years ). 25
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
