Portalatin v. Graham

• Decision Date: 18 October 2010
• Docket Number: Docket No. 07-1599-pr,07-3588-pr.,06-3550-pr
• Parties: Carlos PORTALATIN, Petitioner-Appellee, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent-Appellant. William Phillips, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. Vance Morris, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

624 F.3d 69

Carlos PORTALATIN, Petitioner-Appellee,

v.Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent-Appellant.

William Phillips, Petitioner-Appellant,

v.Dale Artus, Superintendent, Clinton Correctional Facility, Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees.

Vance Morris, Petitioner-Appellant,

v.Dale Artus, Superintendent, Clinton Correctional Facility, Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. ^*

Docket Nos. 07-1599-pr, 06-3550-pr, 07-3588-pr.

United States Court of Appeals,Second Circuit.

En Banc Rehearing: July 9, 2010.

Decided: Oct. 18, 2010.

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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 Petitioner-Appellant 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.

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.

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 Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.

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.

Background

A. New York's Recidivist Sentencing Scheme

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:

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.

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 judge does not have discretion to depart from that enhanced range: “[w]hen the court has found ... that a person is a persistent felony offender the court must impose an indeterminate sentence of imprisonment [as provided herein].” Id. § 70.08(2) (emphasis added).

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). ¹ Once a defendant is determined to be a PFO, he may receive an indeterminate sentence corresponding to that of a class A-I felony, which ranges from a minimum of fifteen to twenty-five years, and a maximum of life in prison. Id. §§ 70.10(2); 70.00(3)(a)(i). However, unlike New York's persistent violent felony offender statute, the PFO statute does not require the judge to impose a sentence within that elevated range. Instead, the decision whether to impose a class A-I sentence is within the judge's discretion. Id. § 70.10(2).

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,

[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) ].

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...