Anderson v. Marshall, No. 1:2008cv04214 - Document 22 (E.D.N.Y. 2011)

Court Description: ORDER & OPINION. The 1 Petition for a Writ of Habeas Corpus is denied, and the Court denies petitioner's request for a Certificate of Appealability. The Clerk of the Court is directed to enter judgment accordingly. SO ORDERED by Senior Judge Allyne R. Ross, on 11/3/2011. (Forwarded for Judgment) (Latka-Mucha, Wieslawa)

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Anderson v. Marshall 9 F- Doc. 22 I IN CLERK'S . U.S. DISTRICT CCuKT [.DR UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK * x ) I.lU\ * NOV 0 3 2011 OFFICE 08-CV-4214 (ARR) TYRONE ANDERSON, NOT FOR ELECTRONIC OR PRINT PUBLICATION Petitioner, -against- ORDER & OPINION LUIS MARSHALL, Superintendent, Respondent. x ROSS, United States District Judge: On October 16, 2008, Tyrone Anderson ("petitioner") filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction under New York's persistent felony offender statute, N.Y. Penal Law § 70.10. He alleged that he was being held in state custody in violation of the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 366 (2000), and its progeny. See 28 U.S.c. § 2254(d)(l). Because the Second Circuit has addressed the arguments raised by petitioner and held that the New York scheme under which petitioner was sentenced does not run afoul of clearly established Supreme Court precedent, this court is precluded from affording relief on this ground. See Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010) (en bane). The petition is denied. Petitioner asks, in the alternative, that the court issue a certificate of appealability. "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(2). Here, there is no showing, much less a substantial one, that petitioner has suffered a constitutional violation. Not only has the Second Circuit, sitting en bane, squarely determined that the statute at issue does not violate the Dockets.Justia.com - . Constitution, Portalatin, 624 F.3d 69; but the Supreme Court has also repeatedly declined to review legal challenges to the law's constitutionality. Portalatin, 624 F.3d 69, cert. denied sub nom. Morris v. Artis, 131 S. Ct. 1691 (2011); People v. Battles, 16 N.Y.3d 54 (2010), cert. denied, 80 U.S.L.W. 3183 (U.S. Oct. 3, 2011) (No. 10-9465); People v. Wells, 15 N.Y.3d 927 (2010), cert. denied, 80 U.S.L.W. 3183 (US. Oct. 3,2011) (No. 10-9489); People v. Bell, 15 N.y'3d 935 (2010), cert. denied, 131 S. Ct. 2885 (2011). Because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U. S. C. § 2253(2), the court denies his request for a certificate of appealability. For the foregoing reasons, the petition for a writ of habeas corpus is denied, and the court denies petitioner's request for a certificate of appealability. The Clerk of the Court is directed to enter judgment accordingly. SO ORDERED. /Signed by Judge Ross/ United States District Judge Dated: November 3, 2011 Brooklyn, New York 2

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