WESLEY, Circuit Judge:
Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York's persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.
In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F.Supp.2d 385, 386 (E.D.N.Y.2007) (Gleeson, J.). In the cases of petitioners
In a consolidated appeal, a panel of this Court concluded that New York's persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir.2010).
A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.
At issue in this case is the constitutionality of New York's persistent felony offender ("PFO") sentencing statute, which authorizes lengthy terms of imprisonment for certain recidivist offenders in New York.
New York was the first state in the Union to enact a recidivist sentencing law; that is, one that punishes repeat offenders more harshly than first-time offenders. See generally Susan Buckley, Note, Don't Steal a Turkey in Arkansas—the Second Felony Offender in New York, 45 Fordham L.Rev. 76 (1976). New York provided for the enhancement of sentences for second-time offenders beginning in 1796. Act of March 26, 1796, ch. 30, 1789-1796 N.Y. Laws 669 (1887 ed.). It subsequently added a mandatory life sentence for fourth-time offenders, Act of July 19, 1907, ch. 645, 1907 N.Y. Laws 1494-95, which was later reduced to an indeterminate term of between fifteen years and life, Act of April 4, 1932, ch. 617, 1932 N.Y. Laws 1312. Ultimately, in revising the Penal Law in 1965, New York began to move away from that rigid mandatory framework—with respect to non-violent offenders—to permit judges more flexibility in selecting a sentence that is not unduly harsh in any given case:
Comm. Staff Notes, reprinted in proposed New York Penal Law (Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376), § 30.10 [now § 70.10], at 284.
Accordingly, Article 70 of New York's penal law now sets forth two categories of recidivists, or "persistent offenders." A persistent violent felony offender is defined as a person who stands convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and has previously been convicted of two or more violent felonies (as defined in N.Y. Penal Law § 70.04(1)(b)). Such an individual is subject to an enhanced sentencing range, with a maximum term of life in prison, and a minimum term fixed, based on the category of the offense, anywhere from twelve to twenty-five years. N.Y. Penal Law § 70.08(2), (3). A
By contrast, subject to certain exceptions, a persistent felony offender is defined as a "person, other than a persistent violent felony offender ... who stands convicted of a felony after having previously been convicted of two or more felonies." Id. § 70.10(1)(a).
The PFO statute is therefore commonly referred to as the "discretionary" persistent felony offender statute. It permits, but does not require, a class A-I sentence for certain recidivist felons. The procedure by which a judge determines whether to impose a PFO sentence in a particular case is set forth in New York Criminal Procedure Law § 400.20. Pursuant to that provision, the prosecution must first prove beyond a reasonable doubt that the defendant is a PFO—that is, that he has previously been convicted of two or more qualifying felonies—before an enhanced sentence is authorized. See N.Y.Crim. Proc. Law § 400.20(1), (5). But the court is also directed to engage in a second inquiry, and to assess whether a PFO sentence is warranted before imposing such a sentence, taking into consideration the "history and character" of the defendant and the "nature and circumstances of his criminal conduct." Id.
If, in the court's view, the undisputed allegations regarding the defendant's background and the nature of his criminal conduct justify the imposition of the enhanced sentence, and the court is satisfied that the defendant either has no relevant evidence to the contrary or such evidence would not affect the court's decision, then the court may impose a class A-I sentence (without a further hearing) pursuant to § 70.10(2). See id. § 400.20(8). Otherwise, the court may schedule a hearing at which the prosecution and defendant are given an opportunity to present evidence as to whether the A-I sentence is warranted. Id. § 400.20(9). And, at the conclusion of that hearing,
Id. Throughout the proceeding the prosecution bears the burden of proof. Id. § 400.20(5). If the sentencing court imposes a class A-I sentence, "the reasons for the court's opinion shall be set forth in the record." N.Y. Penal Law § 70.10(2).
To illustrate: A defendant who stands convicted as a first-time offender of a class D felony is subject to an indeterminate sentence, with a minimum term of no less than one year and no more than two and one third years, and a maximum term of between three years and seven years. See id. § 70.00(2)(d), (3)(b). Following the defendant's second conviction of a class D
On July 12, 2002, Portalatin accosted a man at gunpoint and forced him to drive to an empty street in Brooklyn. Following a struggle, the victim managed to escape, and Portalatin drove away in the car. He was convicted of robbery in the first degree and kidnaping in the second degree, both class B violent felonies. See N.Y. Penal Law § 70.02(1).
The prosecution asked the court to sentence Portalatin as a persistent felony offender. A sentencing hearing was held on April 28, 2003, at which the prosecution proved that Portalatin had been previously convicted of the following: (1) attempted burglary in the second degree in 1995; and (2) attempted criminal sale of a controlled substance in the fifth degree in 1998. Portalatin did not contest the existence of those convictions. The court concluded that Portalatin "appear[ed] to be eligible for discretionary persistent felony offender adjudication" based on those predicate offenses.
Next, at step two, the court conducted an assessment to determine whether a class A-I sentence was warranted. The court considered the circumstances of the crimes for which he was convicted, and also examined the history and character of the defendant:
The court imposed two indeterminate sentences of eighteen years to life imprisonment, to run concurrently. Had the court elected not to sentence Portalatin as a
Portalatin appealed his conviction, contending that his sentence was imposed in violation of the Sixth Amendment, as construed by the Supreme Court in Apprendi. On May 16, 2005, the Appellate Division affirmed the judgment, People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334, 335 (2d Dep't 2005), and the New York Court of Appeals subsequently denied him leave to appeal, People v. Portalatin, 5 N.Y.3d 793, 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 (2005). Portalatin then sought a writ of habeas corpus in the United States District Court for the Eastern District of New York, which was granted. Portalatin, 478 F.Supp.2d at 407. The State took this appeal.
On March 13, 1999, Phillips and another man robbed a magazine store in midtown Manhattan. The evidence at trial established that Phillips entered the store with his accomplice, pulled a knife, and demanded money from the store manager. He was convicted following a jury trial of one count of second-degree robbery (at the time a class C violent felony).
Following his conviction, the prosecution moved to have Phillips sentenced as a persistent felony offender pursuant to § 70.10. Phillips's predicate felony offenses included: (1) in 1986, he was convicted of second-degree attempted robbery relating to an incident in which he and an accomplice "grabbed a man on a Bronx Street and forcibly stole his property"; (2) in 1987, he was convicted of third-degree burglary while awaiting sentencing on the 1986 Bronx conviction; (3) also in 1987, he was convicted of fourth-degree grand larceny arising from his theft of a wallet from an undercover police officer; (4) once again in 1987, he was convicted of third-degree burglary arising from his theft of merchandise from a card store; (5) in 1990, following the completion of his sentences for the above charges, he was convicted of third-degree attempted robbery; and (6) in 1994, he was convicted of attempted criminal sale of a controlled substance in the third degree. Phillips also had multiple misdemeanor offenses.
A sentencing hearing was held on January 4, 2000, at which the court heard arguments on the prosecution's § 70.10 motion. Phillips did not dispute the existence of his six prior felony convictions. Instead, he challenged the facts found by the jury in his case, maintained his innocence of the March 13, 1999, robbery, and attempted to persuade the court to exercise its discretion not to sentence him as a PFO.
On January 13, 2000, the court issued its ruling. First, the court made the threshold determination that "defendant has been convicted of two or more previous felonies and is a persistent felony offender within the meaning of [§ 70.10]." The court then conducted a generalized assessment, and concluded that a class A-I sentence was warranted:
(citing N.Y.Crim. Proc. Law § 400.20(1); N.Y. Penal Law § 70.10). Phillips received an indeterminate sentence of sixteen years to life in prison. Had he not been sentenced as a PFO, he would have
Following his sentence, Phillips exhausted his appeals in state court, see People v. Phillips, 2 A.D.3d 278, 279, 768 N.Y.S.2d 812, 812 (1st Dep't 2003) (rejecting defendant's Apprendi challenge); People v. Phillips, 3 N.Y.3d 645, 645, 782 N.Y.S.2d 417, 816 N.E.2d 207 (June 24, 2004), on reconsideration, 3 N.Y.3d 710, 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 (Sep. 30, 2004) (denying leave to appeal), and then brought the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of New York on the grounds that his sentence was imposed in violation of the principle announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On June 30, 2006, the district court rejected his Apprendi challenge and declined to issue a certificate of appealability. Phillips, 2006 WL 1867386, at *5-7. Phillips then moved for a certificate of appealability in this Court, which was granted.
Morris was convicted following a jury trial of sixteen counts of criminal contempt in the first degree, a class E felony. See N.Y. Penal Law § 215.51(b). Four final orders of protection had previously been issued against Morris when the police were called to his ex-girlfriend's apartment on July 18, 2001. The woman informed the officers that Morris had come to her residence in violation of the orders of protection, repeatedly banged on her door, and threatened her. While the officers were still present, Morris twice called the apartment and left messages, each time threatening to kill the woman.
Following Morris's conviction, the State moved to sentence him as a persistent felony offender. At sentencing hearings held in April and July of 2002, Morris conceded various prior felony convictions, including: (1) a 1989 conviction for attempted robbery in the third degree; (2) a 1992 conviction for grand larceny in the fourth degree; (3) a 1992 conviction for attempted criminal possession of a controlled substance in the fifth degree; and (4) a 1994 conviction for robbery in the third degree. The court therefore concluded that Morris qualified as a persistent felony offender under Section 70.10.
Next, at step two, the court evaluated whether or not Morris should be sentenced as a PFO. The sentencing judge described the defendant's long history of "terrorizing" his ex-girlfriend, as well as several of her neighbors, who on several occasions felt it necessary to call the police for fear that "he's going to kill us all." In addition, while Morris was incarcerated at Riker's Island during the pendency of the case, he called his ex-girlfriend on thirtytwo separate occasions in violation of the orders of protection. The court considered the defendant's other criminal history of violence toward women, which include numerous incidents in the subway, inter alia:
The court concluded that Morris's "criminal record, which spans nearly two decades, establishes his propensity to prey upon helpless women generally, and upon [the ex-girlfriend] in particular. It also
On direct appeal, Morris asserted an Apprendi challenge to his sentence. The Appellate Division rejected that argument as unpreserved, as well as on its merits. See People v. Morris, 21 A.D.3d 251, 251, 800 N.Y.S.2d 6, 7 (1st Dep't 2005). The New York Court of Appeals denied leave to appeal on September 27, 2005, People v. Morris, 5 N.Y.3d 831, 831, 804 N.Y.S.2d 45, 837 N.E.2d 744 (2005), and Morris submitted a petition for a writ of habeas corpus in federal court. On July 30, 2007, the United States District Court for the Southern District of New York denied that petition. Morris, 2007 WL 2200699, at *1. Morris brought this appeal.
Because the legal question presented by the three petitioners is identical—specifically, whether New York's recidivist sentencing scheme runs afoul of the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)—their appeals were consolidated by our Court.
We review de novo a district court's decision to grant or deny a habeas corpus petition. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, federal habeas review of state court convictions has been narrowly circumscribed, see Felker v. Turpin, 518 U.S. 651, 654, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (acknowledging that AEDPA "work[ed]
28 U.S.C. § 2254(d).
To qualify as "clearly established" for the purposes of federal habeas review, a rule of law must be embodied in the "holdings, as opposed to the dicta," of Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). And, for a state court decision to be "contrary to," or an "unreasonable application of," that Supreme Court precedent, the decision must: (1) "arrive[] at a conclusion opposite to that reached by [the Supreme Court] on a question of law"; (2) "decide[] a case differently than [the Supreme Court] on a set of materially indistinguishable facts"; or (3) "identif[y] the correct governing legal principle ... but unreasonably appl[y] that principle to the facts of the prisoner's case." See id. at 412-13, 120 S.Ct. 1495. If none of these conditions is met, even if the federal court would have reached a different conclusion on direct review, the petition must be denied. "As we have interpreted [the AEDPA] standard, we decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Policano v. Herbert, 507 F.3d 111, 115 (2d Cir.2007) (internal quotation marks omitted). To that end, "the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow... As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity." Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).
In the seminal case of Apprendi v. New Jersey, the Supreme Court applied the Sixth Amendment's guarantee to a trial by an impartial jury to a state law triggering enhanced sentencing ranges based on judicial factfinding. 530 U.S. at 490, 120 S.Ct. 2348. There, a New Jersey hate-crime statute permitted the trial judge to impose an "extended term" of imprisonment if the judge found, by a preponderance of the evidence, that the defendant committed the crime "with a purpose to intimidate an individual or group" based on certain enumerated characteristics. Id. at 468-69, 120 S.Ct. 2348. The Supreme Court
The exception for prior convictions preserved the Court's earlier holding in Almendarez-Torres v. United States, which affirmed the constitutionality of the use of recidivism as a judicially determined "sentencing factor" authorizing an enhanced sentence. See 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). There, the Court rejected the argument that 8 U.S.C. § 1326(b)(2) violated a defendant's right to a jury trial because it authorized an enhanced penalty for any alien caught reentering the United States after being deported, if the initial deportation "was subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326(b)(2); see id. at 226-28, 118 S.Ct. 1219. According to the Court, "the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres, 523 U.S. at 243, 118 S.Ct. 1219 (emphasis added).
In reaffirming the constitutionality of the use of recidivism as a judicially-found sentencing factor, the Supreme Court has since emphasized that the existence of procedural safeguards embedded in prior criminal proceedings, as well as the lack of dispute or uncertainty as to the "fact" of a prior conviction, "mitigate[] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact' increasing the punishment beyond the maximum of a statutory range." Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. To be sure, "[t]he Court's repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing." Jones v. United States, 526 U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); see also Parke v. Raley, 506 U.S. 20, 26, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (acknowledging that recidivism has formed the basis for sentencing enhancements "dat[ing] back to colonial times," and that recidivist sentencing laws were "currently... in effect in all 50 states").
The rule of Apprendi was later reinforced in Ring v. Arizona, in which the Supreme Court struck down a capital sentencing scheme that vested the trial judge with the discretion to determine the presence or absence of statutorily enumerated aggravating factors required for the imposition of a death sentence. 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Under the Arizona law, a defendant
In Blakely v. Washington, the Supreme Court expanded
The Supreme Court reversed the sentence. The Court first restated the familiar rule (and exception) of Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
Moreover, Blakely clarified that a sentencing scheme can violate the Sixth Amendment even if those "facts" that a sentencing judge is required to find are not specifically enumerated by statute. Id. at 305, 124 S.Ct. 2531. That the list of aggravating circumstances in the Washington statute was "illustrative rather than exhaustive" did not elide the constitutional flaw: "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as [in Blakely])," id., the authority is derivative of an unconstitutional source. Because Blakely's ninety-month sentence could not have been imposed but for the judge's finding of "deliberate cruelty," it was imposed in violation of the Sixth Amendment. Id. Thus, Blakely settled that the Apprendi maximum is the sentence that is authorized based solely on those factual predicates that are found within the constraints of the Sixth Amendment. That is, those facts that are: (1) proven to a jury beyond a reasonable doubt; (2) admitted by the defendant; or (3) findings of recidivism.
Lastly, in Cunningham v. California, the Supreme Court addressed the validity of California's determinate sentencing law ("DSL") in light of Apprendi, Ring and Blakely. Cunningham v. California, 549 U.S. 270, 274, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). Under the DSL, most substantive offenses were assigned three tiers of determinate sentences: a lower-, a middle-, and an upper-term sentence. Id. at 277, 127 S.Ct. 856. But the discretion of the trial judge to select either the upper-term or lower-term sentence was circumscribed: the statute provided that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." Id. (quoting Cal.Penal Code § 1170(b)) (emphasis added). Circumstances in aggravation were defined as "facts which justify the imposition of the upper prison term," which were to be "established by a preponderance of the evidence" and "stated orally on the record." Id. at 278, 127 S.Ct. 856 (quoting Cal. Jud. Council Rules 4.405(d), 4.420(b), 4.420(e)) (emphasis in original). Hence, the middle term was the default sentence absent further factual findings.
Cunningham was convicted of "continuous sexual abuse of a child" under the age of fourteen, for which the prescribed terms were six, twelve, and sixteen years, respectively. Id. at 275, 127 S.Ct. 856. At a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating circumstances including, inter alia, the "particular vulnerability" of his victim. Id. Cunningham was sentenced
The Supreme Court held that the DSL violated the Sixth Amendment. In rejecting the State's argument that the Apprendi maximum was the upper-term sentence —for Cunningham, sixteen years— the Court reaffirmed the principle announced in Blakely that a sentence must be fully authorized by factual predicates obtained in compliance with the Constitution: "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." Id. at 290, 127 S.Ct. 856. Because the judge was required to make a factual finding in order to impose the upper-term sentence, the Apprendi maximum was not the upper term, but the middle term, and the use of judicial factfinding to impose the upper term violated the Sixth Amendment. Id. at 292-93, 127 S.Ct. 856.
Because Cunningham was decided well after the conviction of each petitioner became final, it is urged by the State that we cannot consider it in our analysis. To the contrary, a Supreme Court holding is generally operative retroactively in a collateral proceeding so long as it does not announce a "new rule" within the meaning of Teague. See, e.g., Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis added, internal citations omitted). Similarly, under AEDPA, "clearly established federal law" is "law that is dictated by Supreme Court precedent existing at the time the defendant's conviction became final." McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.2003) (internal quotations and brackets omitted). Thus, if the holding of a case was "dictated" by extant Supreme Court precedent at a particular time, the constitutional rule embodied in that case was necessarily "clearly established" at that time.
In that light, we have no trouble concluding that the identification of a Sixth Amendment violation in Cunningham was dictated at the time that the petitioners' convictions became final on direct review.
Nevertheless, for reasons discussed in the remainder of this opinion, we conclude that neither Cunningham nor any other clearly established Supreme Court precedent supports the petitioners' position.
The New York Court of Appeals has interpreted the PFO statute on three occasions since the Supreme Court's decision in Apprendi, each time affirming its constitutionality in response to Sixth Amendment challenges. See People v. Quinones, 12 N.Y.3d 116, 131, 879 N.Y.S.2d 1, 906 N.E.2d 1033 (2009); People v. Rivera, 5 N.Y.3d 61, 71, 800 N.Y.S.2d 51, 833 N.E.2d 194 (2005); People v. Rosen, 96 N.Y.2d 329, 336, 728 N.Y.S.2d 407, 752 N.E.2d 844 (2001). Of course, we do not defer to that court's interpretation of federal law, but we are bound by its construction of New York law in conducting our analysis. We examine each case in turn.
In Rosen, the New York Court of Appeals rejected for the first time an Apprendi challenge to New York's PFO statute. See 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844. The court acknowledged the familiar rule of Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 334, 728 N.Y.S.2d 407, 752 N.E.2d 844 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). But the court went on to hold that the only "fact" necessary to impose a PFO sentence under § 70.10 is the "fact" of recidivism, placing the PFO statute squarely within the exception to the rule: "It is clear from the ... statutory framework that the prior felony convictions are the sole determin[ant] of whether a defendant is subject to enhanced sentencing as a persistent felony offender." Id. at 335, 120 S.Ct. 2348 (emphasis added). Only after that finding is made will a court look to the defendant's "history and character," and the "nature and circumstances of his criminal conduct," to determine where, within this now expanded sentencing range, a sentence should be imposed. See id. To that end, "the sentencing court is thus only fulfilling its traditional role— giving due consideration to agreed-upon
In Rivera, the New York Court of Appeals revisited the constitutionality of § 70.10 in light of Blakely and Ring, and repeated its conclusion that recidivism findings are the only necessary factual predicates to impose a PFO sentence. Because "[t]he statute authorizes indeterminate sentencing once the court finds persistent felony offender status," Rivera, 5 N.Y.3d at 66, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis added), the court held, "the predicate felonies are both necessary and sufficient conditions for imposition of the authorized sentence for recidivism; that is why we pointedly called the predicate felonies the `sole' determinant [in Rosen]," id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194 (quoting Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844).
The court acknowledged that the statute, as written, is susceptible to a construction that would pose an Apprendi problem:
Id. at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis in original). But, as the court explained, the statutes raise no constitutional concern because
Id. (emphasis in original).
In thus reiterating its construction of the PFO statute in Rosen, the court in Rivera clearly construed state law to provide for an expanded range of authorized sentences once a defendant is adjudged a persistent felony offender, at which point the trial judge is directed to exercise discretion in determining where within that newly expanded range to impose a sentence:
Id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194. In other words, according to New York's highest court, the maximum "range" of available sentences is established once the defendant is proven to have two prior qualifying felonies: The judge may impose a sentence within the range permitted for an A-I felony, or may instead impose a lower sentence within the range permitted for a second felony offense.
Rivera also addressed the statute's "mandatory consideration and articulation" of those factors that a trial judge finds relevant in determining what sentence to impose. Id. at 69, 800 N.Y.S.2d 51, 833 N.E.2d 194. The court interpreted that
First, it provides a defendant with notice and an opportunity to respond to those factors that the court deems relevant to the exercise of its sentencing discretion within the ranges authorized by the PFO statute. "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." Id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194; cf. Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ("Confidence in a judge's use of reason underlies the public's trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.").
And second, the judge's articulation of reasoning facilitates an appellate review function that is distinct from the issue of whether the PFO sentence was lawfully imposed. In New York, intermediate appellate courts are vested with the capacious authority to review and modify criminal sentences in the interests of justice. See N.Y. Crim. Proc. Law § 470.15(3)(c).
5 N.Y.3d at 68-69, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis added) (citing N.Y.Crim. Proc. Law § 470.20(6)). Rivera thus concluded that the PFO statute does not violate the principle announced in Blakely, because it simply creates a recidivist sentencing scheme: the only factual predicates necessary for a judge to impose a class A-I sentence are those respecting the defendant's criminal history, and it therefore falls within the carve-out of Almendarez-Torres. Id. at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194.
12 N.Y.3d at 130, 879 N.Y.S.2d 1, 906 N.E.2d 1033.
Our Court has examined the PFO statute on two prior occasions. Each was presented in the posture of a habeas petition, and in both cases we denied relief.
In Brown I, we deemed it a reasonable conclusion by the state court that "the judicial finding of at least two predicate felony convictions comported with the dictates of Apprendi," and noted that the second-prong inquiry called for under the PFO statute "is of a very different sort" from the judicial factfinding proscribed by Apprendi. 409 F.3d at 534. "It is a vague, amorphous assessment of whether, in the court's `opinion,' `extended incarceration and life-time supervision' of the defendant `will best serve the public interest.'" Id. (quoting N.Y. Penal Law § 70.10(2)). In sum, "[w]e [could not] say the New York Court of Appeals unreasonably applied Apprendi when it concluded that this second determination is something quite different from the fact-finding addressed in Apprendi and its predecessors." Id. at 534-35.
In Brown II, we revisited the issue in light of the Supreme Court's holding in Ring, and found the PFO statute to be distinguishable from the Arizona capital sentencing scheme invalidated in Ring. Brown II, 451 F.3d at 59.
But neither Brown I nor Brown II speaks to the question that we face today: In light of the New York Court of Appeals' construction of the PFO statute in Rivera, and the Supreme Court holdings in Blakely and Cunningham, does the PFO statute suffer from a constitutional defect that the state courts were objectively unreasonable to overlook? We hold that it does not.
Petitioners rely principally on two distinct, though related, arguments to support their contention that the PFO statute requires sentencing judges in New York to engage in unconstitutional factfinding. First, they urge that the step two determination under the PFO statute violates the Sixth Amendment because a sentencing judge is required to make factual findings beyond those respecting the predicate felony convictions before imposing a class A-I sentence. Second, they argue that even if a judge may impose a PFO sentence based solely on the defendant's predicate felony convictions, the step two determination nonetheless entails unconstitutional factfinding because a judge is required to form a qualitative judgment about the defendant's criminal history before imposing a PFO sentence, an inquiry that necessarily implicates facts beyond the purview of Almendarez-Torres.
Petitioners' first contention is that the step two determination under the PFO statute (whether a class A-I sentence is warranted) consists of impermissible factfinding under Blakely because it requires the judge to hold a hearing and set forth findings of fact, beyond those of the prior convictions, before she may impose a PFO sentence. For the reasons that follow, we cannot say that the state courts were unreasonable to reject this argument.
Whether the step two determination under the PFO statute entails unconstitutional factfinding hinges not on its nature, but its effect. A core principle has guided this aspect of the Supreme Court's jurisprudence in the wake of Apprendi: judicial factfinding violates a defendant's right to a jury trial when it results in a sentence in excess of the Apprendi maximum for a given offense. The Apprendi maximum, in turn, is the apogee of potential sentences that are authorized based on factual predicates obtained in compliance with the Sixth Amendment: those found by the jury, those admitted by the defendant, and findings of recidivism. In contrast, judicial factfinding that is undertaken to select an appropriate sentence within an authorized range—up to and including the Apprendi maximum—does not offend the Sixth Amendment. For "the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power." Blakely, 542 U.S. at 308, 124 S.Ct. 2531. "The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede)." Rita, 551 U.S. at 352, 127 S.Ct. 2456 (citing Blakely, Cunningham and Booker) (emphases in original).
Our analysis must therefore begin with the PFO statute to determine the Apprendi maximum for each petitioner. That assessment is necessarily guided by the construction placed on the statute by the New York Court of Appeals, which, with some emphasis, has interpreted the statute to authorize a class A-I sentence based on the defendant's predicate felony convictions alone: "The statute authorizes indeterminate sentencing once the court finds persistent felony offender status," and "defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior convictions." Rivera, 5 N.Y.3d at 66, 67, 800 N.Y.S.2d 51, 833 N.E.2d 194 (emphasis in original). Rivera emphasized that "the predicate felonies [are] the `sole' determinant" for whether a judge is authorized to impose a PFO sentence, and that "no additional
In essence, Rivera construed the statutory directive that a sentencing judge articulate the reasons for imposing a class A-I sentence as one of procedure: the explanation itself satisfies the statutory requirement, regardless of whether it contains any facts beyond those respecting the defendant's predicate felonies. Accordingly, any other facts upon which the sentencing judge chooses to rely cannot properly be understood as "elements" of the underlying offense in terms of Apprendi, because they are not necessary factual predicates to the imposition of the sentence. Instead, they simply inform the judge's discretion to select an appropriate sentence within those ranges authorized by statute.
Petitioners assert that Rivera's construction of the PFO statute is belied by its text, specifically the provision stating that "[s]uch sentence may not be imposed unless ... [the court] is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct [warrant the sentence.]." N.Y.Crim. Proc. Law § 400.20(1) (emphasis added). If, as petitioners contend, those findings as to the defendant's history and character are factual predicates essential to the imposition of the A-I sentence, the PFO statute would violate the Sixth Amendment. The New York Court of Appeals acknowledged as much: "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." Rivera, 5 N.Y.3d at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194. But, as we have already observed, the court plainly stated that it "did not read the law that way." Id.
Whether our Court agrees or disagrees with the Court of Appeals' construction of New York law is of no moment. As the Supreme Court has long held, "state courts are the ultimate expositors of state law," Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and "[n]either this Court nor
Of course, we recognize that we are bound only by the New York Court of Appeals' interpretation of what the terms of the statute mean, and that we are not similarly constrained by that court's pronouncement of the statute's "operative effect" for constitutional purposes. See Wisconsin v. Mitchell, 508 U.S. 476, 483-84, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). Yet the decision in Rivera was not merely a characterization of the PFO statute's practical operation, but an exposition of its terms. Under Rivera, the statute authorizes a class A-I sentence once the court establishes the defendant's status as a persistent felony offender, and a judge may impose an enhanced sentence based on the defendant's criminal history alone. Rivera, 5 N.Y.3d at 66, 70-71, 800 N.Y.S.2d 51, 833 N.E.2d 194.
We must presume that the New York Court of Appeals meant what it said: the statutory directive to consider the history and character of the defendant, and the nature and circumstances of his crime, is a procedural requirement that is only triggered once a judge is already authorized to impose the class A-I sentence. According to Rivera, it would not be an error of law for a sentencing judge to impose a class A-I sentence based solely on the recidivism findings alone. "Once 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." Id. at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194. Lower courts in New York, as they must, consistently rely upon that construction in sentencing. Compare People v. Bazemore, 52 A.D.3d 727, 728, 860 N.Y.S.2d 602, 603 (2d Dep't 2008) (noting that lower court's "conclusory recitation" insufficient to comply with procedural requirements of the PFO statute), and People v. Murdaugh, 38 A.D.3d 918, 919-20, 833 N.Y.S.2d 557, 559 (2d Dep't 2007) (same), with People v. Tucker, 41 A.D.3d 210, 212, 839 N.Y.S.2d 15, 18 (1st Dep't 2007) (affirming PFO sentence based solely on lower court's evaluation of defendant's criminal history), and People v. Young, 41 A.D.3d 318, 319-20, 838 N.Y.S.2d 550, 551-52 (1st Dep't 2007) (same).
Petitioners also observe that in Rivera, the Court of Appeals reaffirmed that at step two of New York's PFO scheme, "the People retain the burden to show that the defendant deserves a higher sentence," see 5 N.Y.3d at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194, and argue that this shows that the effect of the statute is to require additional factfinding before an A-I sentence may be lawfully imposed. We disagree with this characterization, for again, it misconstrues the effect of the facts found at this step. Rivera's reference to the State's "burden" notwithstanding, the court made clear that "Criminal Procedure Law § 400.20, by authorizing a hearing on
Thus, while the meaning of Rivera's reference to the State's "burden" is not entirely clear—it might, for example, mean that the State is obligated to prove by a preponderance of the evidence any of the facts it introduces in an attempt to persuade the sentencing judge, or might merely refer in an informal sense to the notion that it typically will be incumbent upon the State to oppose sentencing arguments advanced by defendants—the Court of Appeals was emphatic that the statute does not impose an overarching evidentiary burden upon the State that must be satisfied before the sentencing court may lawfully impose an A-I sentence. In other words, although the sentencing judge, in considering whether to impose the statutorily authorized A-I sentence or instead a lesser sentence, "may implicitly rule on those facts he deems important to the exercise of his sentencing discretion," the facts in question "do not pertain to whether the defendant has a legal right to a lesser sentence," a distinction that "makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned." Blakely, 542 U.S. at 309, 124 S.Ct. 2531 (emphasis in original).
In sum, because the New York Court of Appeals has interpreted step two of the PFO sentencing scheme as a procedural requirement that informs only the sentencing court's discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the factfinding requirements invalidated in Blakely and Cunningham.
Assuming—without deciding—that petitioners are correct in reading New York law to require a sentencing judge to consider subsidiary facts respecting a defendant's criminal history before imposing a PFO sentence, we are not persuaded that such consideration equates to judicial "factfinding" in violation of Blakely. At bottom, petitioners urge that the Almendarez-Torres exception to the rule of Apprendi should be read narrowly (and the rule of Blakely broadly) to forbid a sentencing judge from forming an opinion about a defendant's criminal history, based on facts underlying those prior convictions, before imposing a recidivism sentence. Yet there is no clear holding of the Supreme Court to command such a result.
Given the lack of guidance as to the precise scope of the recidivism exception, it is unsurprising that the exception does not enjoy uniform application among appellate courts charged with reviewing federal sentences. For example, some courts, including our own, have held that the recidivism exception encompasses such "related facts" as the type and length of sentence imposed, and whether the defendant was on probation when the crime was committed. United States v. Cordero, 465 F.3d 626, 632-33 n. 33 (5th Cir.2006); see also United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005); United States v. Williams, 410 F.3d 397, 402 (7th Cir.2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir.2005). In contrast, the Ninth Circuit has concluded that the defendant's probationary status at the time of the crime does not fall within the recidivism exception. See Butler v. Curry, 528 F.3d 624, 636 (9th Cir.2008). Yet, notably, the Ninth Circuit has also acknowledged that the principle remains unsettled, and accordingly has refused to grant habeas relief when a state court has concluded that probationary status may constitutionally be relied upon as a recidivism-based sentence enhancement. Kessee v. Mendoza-Powers, 574 F.3d 675, 679 (9th Cir. 2009).
So too here. It might well be constitutionally significant whether a sentencing judge is required to find, for example, that a defendant's criminal history is "especially violent" before imposing a sentence, or whether, as in New York, a sentencing judge simply must find that the nature of his criminal history justifies "extended incarceration and life-time supervision." Or, perhaps after Blakely and Cunningham, it does not matter. The Supreme Court may answer that question at some future time. But, if our Court cannot divine a clear answer from the Court's existing holdings, AEDPA prevents us from faulting a state court for selecting one reasonable conclusion over another. For the time being, the recidivism exception remains, and the Supreme Court has yet to assess a statute in light of Blakely that tethers the authorization for an enhanced sentence solely to findings respecting recidivism. We therefore cannot say that the state courts unreasonably applied clearly established Supreme Court precedent in concluding that the PFO statute is simply different in kind from those invalidated in Blakely and Cunningham.
To conclude, the state courts were not unreasonable to discern an appreciable distinction between the PFO statute and those struck down in Blakely and Cunningham: the Washington and California statutes stripped sentencing judges of any discretion to impose an elevated sentence unless they found an additional fact not embodied in the jury verdict. In Blakely, a defendant found guilty of kidnaping was entitled to a sentence of forty-nine to fiftythree months, but for an additional finding of "substantial and compelling reasons justifying an exceptional sentence." 542 U.S. at 299, 124 S.Ct. 2531. In Cunningham, a defendant found guilty of continuous sexual abuse of a child was entitled to a sentence of twelve years, but for an additional finding of "circumstances in aggravation." 549 U.S. at 277, 127 S.Ct. 856.
In contrast, the PFO statute—as interpreted by the New York Court of Appeals—creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced
For the foregoing reasons, the order granting the writ of habeas corpus to Petitioner-Appellee Portalatin is REVERSED. The orders denying the writ to Petitioner-Appellants Morris and Phillips are AFFIRMED. The panel opinion, 601 F.3d 163, is hereby VACATED.
New York Penal Law § 70.10:
WINTER, Circuit Judge, with whom Judges POOLER and SACK concur, dissenting:
I respectfully dissent. My dissent assumes familiarity with the panel opinion, Besser v. Walsh, 601 F.3d 163 (2d Cir.
These appeals concern petitions for writs of habeas corpus in which the petitioners challenge the constitutionality of what actually happened in their sentencing proceedings. Petitioners claim that the sentencing judges enhanced petitioners' sentences beyond the standard maximum for their crimes of conviction based on the sentencing judges' findings of facts that were not found by a jury, admitted by petitioners, or sheltered by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction need not be treated as an element of criminal offense. That some kind of factfinding occurred with regard to each of the petitioners has not been seriously questioned, and that extensive factfinding occurred in one of the cases was expressly conceded in the in banc oral argument by the Solicitor General of New York. My colleagues rely heavily upon AEDPA deference
The dissent will first discuss the sentencings of the three remaining petitioners (five petitioners were involved in the panel proceeding). It will then turn to the majority opinion with regard to the four issues at stake in this proceeding, giving full AEDPA deference to all relevant arguments: (i) what are the maximum sentences applicable to petitioners for Apprendi purposes; (ii) whether judicial factfinding altered the maximum sentence applicable to each petitioner; (iii) if so, whether such judicial factfinding was permissible under Almendarez-Torres; and (iv) whether all of the judicial fact-finding
The sentencings of the three petitioners represent a fair cross-section of the various issues at stake in this in banc.
Phillips' sentencing was the simplest. He was convicted of a Class C felony, robbery in the second degree, carrying a maximum sentence as a second felony offender of 15 years. N.Y. Penal Law § 70.06(3)(b). Phillips had six prior felony convictions: two burglaries in the third degree; grand larceny in the fourth degree; attempted robbery in the second degree; attempted robbery in the third degree; and attempted criminal sale of a controlled substance in the third degree. The sentencing court found:
This case arguably raises serious Almendarez-Torres issues. The principal document in the record apparently is the prosecution's PFO motion containing Phillips' legal history. The conclusory statement of the sentencing court, while clearly a finding of fact for Apprendi purposes,
Portalatin was convicted of second degree kidnapping and first degree robbery, both Class B felonies carrying a maximum of 25 years as a second felony offender. N.Y. Penal Law § 70.06(3)(a). Portalatin's sentencing involved similar but somewhat more extensive conclusions, including some facts outside any reasonable interpretation of Almendarez-Torres. The prosecution moved by letter for PFO sentencing based on two prior felony convictions, attempted burglary in the second degree and attempted criminal sale of a controlled substance in the fifth degree. The sentencing
Some of the facts found may be sheltered by an arguably reasonable interpretation of Almendarez-Torres. However, missed opportunities for drug treatment and the issuance of bench warrants may not be facts relating to PFO convictions, although reliance on them may well have been harmless. All these matters could have been resolved on the original panel remand.
Morris's sentencing involved extensive factfinding. After his conviction on 16 counts of criminal contempt for violating orders prohibiting contact with his girlfriend, Class E felonies, the prosecutor entered evidence of convictions for (i) attempted robbery in the third degree; (ii) grand larceny in the fourth degree and attempted criminal possession of a controlled substance in the fifth degree (deemed in the aggregate to be one conviction pursuant to N.Y. Penal Law Section 70.10(1)(c)); and (iii) robbery in the third degree. This evidence qualified Morris as a PFO. The pertinent choice in Morris's case was between a Class E felony second offender sentence with a maximum of 4 years and a Class A-I sentence with a maximum of life. N.Y. Penal Law § 70.06(3)(d).
After an adjournment of the sentencing hearing to obtain a psychiatric examination of Morris, the sentencing judge considered the evidence. This consideration included, inter alia, numerous documents such as the psychiatric evaluation, tapes of 911 calls from Morris's girlfriend or her neighbors, evidence of numerous instances of obscene behavior on subways, numerous instances of violence or assault on subways, contemptuous behavior in court, contemptuous behavior toward a female prison guard, and a negative report on Morris from the Department of Probation. The defense evidence consisted largely of his girlfriend's testimony as to his lack of violent behavior.
After hearing argument by counsel, the court concluded that Morris should receive a Class A-I sentence. The court rendered extensive written findings of fact formally labeled "Findings of Fact." The court made a negative credibility finding with regard to the girlfriend's testimony. The court credited the prosecution's evidence described above and found that Morris exhibited a propensity for violence, "a disturbing lack of self-control and a pattern of abusive and contemptuous behavior, particularly toward women." It concluded that the "People ... met their burden of establishing by a preponderance of the evidence that a sentence [as a Class A-I
The record of Morris's sentencing indicates consideration by the court of many actions and characteristics of Morris, and conflicting testimony, that are not related to or inferences drawn from his prior felonies or felony of conviction. The record also indicates that the sentencing judge engaged in what he deemed to be factfinding to choose between the second offender Class E felony sentence with a four year maximum, and a Class A-I sentence with a minimum of 15 years and maximum of life.
Blakely/Cunningham prohibit a sentencing court from finding facts that were not found by a jury, admitted by a defendant, or sheltered by Almendarez-Torres, where such facts are relied upon to elevate the otherwise applicable maximum sentencing range to one with a higher maximum. Cunningham v. California, 549 U.S. 270, 282-83, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Each petitioner argues that his sentencing involved such factfinding and altering of the otherwise applicable maximum sentence.
My colleagues argue that: (i) the maximum sentence applicable to all petitioners was, for Apprendi purposes, life; (ii) once two prior felony convictions are shown, the "second step" need not involve dispositive factfinding; (iii) a reasonable interpretation of Almendarez-Torres, if AEDPA deference is shown, allows the sentencing court to find facts relating to the predicate felonies sufficient to impose a Class A-I sentence; and (iv) nothing occurs under the PFO statute that is not recognized as discretionary sentencing using traditional factors. I deal with each argument seriatim.
My colleagues join the New York Court of Appeals in reasoning that because life imprisonment is the highest sentence to which a defendant is exposed under the PFO statute, life imprisonment is the maximum sentence for Apprendi purposes.
As my colleagues' own description of Blakely indicates,
Blakely, 542 U.S. at 303, 124 S.Ct. 2531. That the Court directly ruled on this issue is underlined by Justice O'Connor's dissent. Id. at 318, 124 S.Ct. 2531 ("Under the majority's approach, any fact that increases the upper bound on a judge's sentencing discretion is an element of the offense.") (O'Connor, J., dissenting).
Each petitioner concedes that he was "eligible for," "subject to," etc., a Class A-I sentence solely because of his prior multiple felonies. Each also argues that without the findings of facts as to which the prosecution bore the burden of proof and that were not found by the jury (discussed in the next subsection), he had to be sentenced within a range carrying a lower maximum. No party disputes the existence of a choice between sentencing within a range with a lower maximum and sentencing to a Class A-I term. Blakely is therefore directly on point.
Cunningham reaffirmed Blakely in this respect. 549 U.S. at 288-89, 127 S.Ct. 856 (using Blakely's definition of the Apprendi maximum to find California's sentencing scheme unconstitutional). Cunningham, moreover, involved non-continuous sentences, as is the case in Morris's petition. In that regard, the Cunningham decision directly contradicts the statement in Footnote 12 of my colleagues' opinion that the Supreme Court has never suggested that non-continuous schemes raise Sixth Amendment concerns. Maj. op. 89. In the very heart of the Court's holding, it stated:
Cunningham, 549 U.S. at 292, 127 S.Ct. 856.
Similarly, in Morris's case, the sentencing judge had to choose between two ranges: 1.5 to 4 years and 15 years to life—an eleven-year gap between the maximum in the lower range and the minimum in the higher range. Cunningham is, therefore, also directly on point.
The reasoning adopted by my colleagues with respect to analyzing the maximum sentence for Apprendi purposes has thus been expressly rejected by the Supreme Court, and AEDPA deference is inapplicable. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009) (AEDPA deference not applicable where 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") (internal quotation marks omitted). The Apprendi maximum for each petitioner is the maximum second felony offender sentence for their crime of conviction. That maximum in each case is less than life imprisonment.
Believing that the immediately preceding discussion establishes that petitioners'
Conspicuously absent from my colleagues' opinion is any clear denial that, in petitioners' cases, "step two"—consideration of evidence relating to the character, history, and nature of the criminal conduct of the defendant—involved factfinding beyond the multiple prior felonies.
Instead the opinion is at pains to establish that, under the PFO sentencing statute, two prior felonies alone "authorize"
None of the quoted phrases purport to be mandatory, i.e., they do not state that two predicate felonies alone require a Class A-I sentence. All that the phrases purport to state is that the multiple predicate felonies alone: (i) trigger the PFO sentencing process, (ii) expose the defendant to the possibility of a Class A-I sentence, and (iii) may be sufficient in and of themselves to justify such a sentence. However, none of that is disputed, and none of that disposes of any of the appeals before us.
All of the petitioners assert colorable claims that their Class A-I sentences were based on factfinding going beyond the predicate felonies, without which a second felony offender sentencing range with lower maximum sentences would concededly have been applicable. To put it another way, my colleagues have successfully defended the PFO statute against a facial attack by showing that the predicate felonies may alone justify a Class A-I sentence, while not addressing the claims before us that factfinding beyond the predicate felonies actually occurred and enhanced the sentences of the petitioners.
Without linking their discussion to any relevant and identifiable constitutional theory, my colleagues also downplay the importance of the second step, describing it as "procedural," one that merely informs the exercise of sentencing discretion. Maj. op. 90-91, 91. In fact, the Supreme Court has expressly held that
Cunningham, 549 U.S. at 290, 127 S.Ct. 856 (citing Blakely, 542 U.S. at 305 & n. 8, 124 S.Ct. 2531). Regardless of whether the second step is labeled "procedural" or whether it informs discretion, the second step in the case of all petitioners involved which of two sentencing ranges was to be selected and the choice was between ranges with different maximum sentences.
Conceding that facts beyond the felony convictions may be considered in the second step,
No petitioner is arguing that showing up at a sentencing hearing and expressing remorse entitled him to sentencing as a second felony offender as a matter of law. Each is arguing only that judicial factfinding took place and unconstitutionally guided the choice between the two legally available sentencing ranges.
My colleagues make a final attempt to downplay the second step. They describe the statutory requirement of a statement of reasons by the sentencing judge for imposing a Class A-I range sentence rather than a lower range sentence as intended only to "facilitate[ ] an appellate review function that is distinct from the issue of whether the PFO sentence was lawfully imposed."
My colleagues' avoidance of a definitive answer to whether factfinding beyond the predicate felonies may occur in the second step or to whether it did occur in the case of any of the petitioners, must be contrasted with the position taken by appellate counsel for the prosecution and by the Rivera decision itself. In the in banc oral argument, the New York Solicitor General conceded that facts were found in the sentencing
With regard to the petitioners before us, the sentencing judges showed no signs of viewing the second step as anything but involving the consideration of evidence and the finding of facts. As noted, in Morris's case, the sentencing judge made extensive findings of fact and formally labeled them as such. See supra at 97-98.
Finally, the constitutional significance of the second step is underscored by the statutory provision that "the burden of proof is upon the people" in this phase. N.Y.Crim. Proc. Law § 400.20(5). In the first step, the PFO predicate convictions must be proven beyond a reasonable doubt. Id. In the second step, "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct" need be proven only by a preponderance of the evidence. Id. All relevant evidence must be considered and the ordinary rules of evidence, save for those relating to privileges, do not apply. Id. In Rivera's own words, "the People retain the burden to show that the defendant deserves the [Class A-I] sentence." 5 N.Y.3d at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194. My colleagues state that it is "not entirely clear" what this statement means. Maj. op. 91. In fact, it is a routine formulation pertinent to sentencing generally—including the federal system, see 18 U.S.C. § 3553— where a range of sentences is permissible. It means what it says. If the prosecution failed to prove by a preponderance of the evidence that one or more of the petitioners "deserve," a Class A-I sentence, the petitioner would have been sentenced to a range with a lower maximum. Rivera, 5 N.Y.3d at 68, 800 N.Y.S.2d 51, 833 N.E.2d 194.
In short, however characterized, the second step with regard to the present petitioners involved the presentation of evidence upon which the sentencing judge found facts and chose between sentencing ranges with different maximum sentences. Nothing in my colleagues' opinion, save for the discussion of Almendarez-Torres, responds to the claim of each petitioner that factfinding altered the sentencing and applicable maximum range.
The decision in Almendarez-Torres has played a minor role in this litigation until now. None of the New York sentencing courts in the present petitions mentioned it, much less attempted to distinguish evidence
My colleagues' discussion of Almendarez-Torres concerns in part the breadth of that decision with regard to what facts are sheltered by it. There are many variations here: e.g., (i) it shelters only the existence of the fact of the prior convictions; or (ii) it shelters only the existence of prior convictions and matters proven to a jury or admitted by the defendant in connection with the convictions; or (iii) it shelters the existence of the convictions, matters proven or admitted, and matters relating to the convictions not proven to a jury or admitted by the defendant; and (iv) inferences drawn from any of the above. My colleagues give AEDPA deference to (iv). Maj. op. 92-93.
I will not quarrel with their conclusion because it is largely irrelevant at this stage. Even if AEDPA deference were shown to (iv), it disposes of none of the appeals before us, except perhaps for Phillips, as to whom the failure to rehabilitate may be an inference drawn solely from the predicate convictions. In the other sentencing proceedings before us, evidence was proffered and mentioned by the sentencing judges that was not even arguably covered by Almendarez-Torres. While consideration of Almendarez-Torres might identify some sheltered facts and then lead to a conclusion that other findings were harmless—a difficult conclusion perhaps in Morris's case—the panel left that to the remand.
I must also note that my colleagues' discussion of Almendarez-Torres implies that the PFO statute at the second step limits consideration, or findings, of facts to matters sheltered by that decision. Maj. op. 92 (addressing only the situation where "a sentencing judge ... consider[s] subsidiary facts respecting a defendant's criminal history before imposing a PFO sentence"). Again, they fail to address appellants' claims of what actually happened at their sentencing hearings, where facts going beyond matters relating to the prior convictions were allegedly found.
Reference has been made throughout these proceedings to the fact that the second step and its factfinding involve the consideration of traditional sentencing factors and is not unlike the requirements of Section 3553(a).
Blakely/Cunningham radically altered the use of traditional sentencing factors where findings of fact and conclusions regarding traditional factors alter maximum sentences. Indeed, each of those cases involved sentencing enhancements altering maximum sentences based on generalized findings well within the range of traditional factors—"substantial and compelling reasons justifying an exceptional sentence," Blakely, 542 U.S. at 299, 124 S.Ct. 2531, and "circumstances in aggravation or
Except for the argument made with regard to maximum sentences for Apprendi purposes, which has been specifically rejected by the Supreme Court, nothing in my colleagues' opinion identifies a constitutional argument that even arguably disposes of Portalatin's and Morris's claims regarding factfindings altering their maximum sentences. I therefore respectfully dissent.
Using a Class E felony as an example, the original panel's view of the mechanics (what happens) of PFO sentencing is as follows:
