Besser v. Walsh

• Decision Date: 31 March 2010
• Docket Number: 07-3949-pr.,07-1599-pr,07-3588-pr,06-3550-pr,Docket No. 05-4375-pr
• Citation: 601 F.3d 163
• Parties: James BESSER, a/k/a James Zerilli, Petitioner-Appellant, v. James WALSH, Superintendent, Sullivan Correctional Facility, Respondent-Appellee. William Phillips, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, and Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. Carlos Portalatin, Petitioner-Appellee, v. Harold Graham, Superintendent, Auburn Correctional Facility, Respondent-Appellant. Vance Morris, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, and Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. William Washington, Petitioner-Appellee, v. Thomas Poole, Superintendent, Five Points Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

601 F.3d 163

James BESSER, a/k/a James Zerilli, Petitioner-Appellant, v. James WALSH, Superintendent, Sullivan Correctional Facility, Respondent-Appellee.

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

Carlos Portalatin, Petitioner-Appellee, v. Harold Graham, Superintendent, Auburn Correctional Facility, Respondent-Appellant.

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

William Washington, Petitioner-Appellee, v. Thomas Poole, Superintendent, Five Points Correctional Facility, Respondent-Appellant.^***

Docket Nos. 05-4375-pr, 06-3550-pr, 07-1599-pr, 07-3588-pr, 07-3949-pr.

United States Court of Appeals, Second Circuit.

Argued in Tandem: April 16, 2008.

Decided: March 31, 2010.

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Richard M. Greenberg, Office of the Appellate Defender, New York, New York, for Petitioner-Appellant Besser.

Martin M. Lucente, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Petitioner-Appellant Phillips.

Joshua Michael Levine (Lynne W.L. Fahey), Appellate Advocates, New York, New York, for Petitioner-Appellee Portalatin.

Andrew C. Fine (Paul Wiener), The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Petitioner-Appellant Morris.

Jonathan M. Kirshbaum (Robert S. Dean), Center For Appellate Litigation, New York, New York, for Petitioner-Appellee, Washington.

Mark Dwyer, Assistant District Attorney, of counsel (Robert M. Morgenthau, District Attorney, New York County; Morrie I. Kleinbart, Special Assistant District Attorney; Nicole Beder, Assistant District Attorney, of counsel), New York, New York, for Respondent-Appellee Walsh.

Roseann B. Mackechnie, Deputy Solicitor General for Criminal Matters (Andrew M. Cuomo, Attorney General of the State of New York; Barbara D. Underwood, Solicitor General; Malancha Chanda, Assistant Attorney General, of counsel), New York, New York, for Respondents-Appellees Artus and Cuomo.

Leonard Joblove, Assistant District Attorney, of counsel (Charles J. Hynes, District Attorney, Kings County; Ann Bordley, Assistant District Attorney, of counsel), Brooklyn, New York, for Respondent-Appellant Graham.

Andrew M. Cuomo, Attorney General of the State of New York (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters; Malancha Chanda, Assistant Attorney General, of counsel), New York, New York, for Respondent-Appellant Poole.

Marshall A. Mintz, Mintz & Oppenheim LLP, New York, New York (Richard D. Willstatter, Chair of the Amicus Curiae Committee of the New York State Association of Criminal Defense Lawyers, Vice-Chair of the 2nd Circuit Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, White Plains, New York), for Amici Curiae New York State Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers.

Before: WINTER, SACK, Circuit Judges and MURTHA, District Judge.^****

WINTER, Circuit Judge:

The principal question on appeal is whether New York state court decisions affirming sentences enhanced under New York's persistent felony offender ("PFO") statute, N.Y. Penal Law § 70.10, unreasonably applied clearly established federal law. 28 U.S.C. § 2254(d).

The district court issued a writ of habeas corpus in the petitions of Carlos Portalatin and William Washington and the relevant state authorities brought this appeal.¹ See Washington v. Poole, 507 F.Supp.2d 342, 344 (S.D.N.Y.2007) (Koeltl, J.); Portalatin v. Graham, 478 F.Supp.2d 385, 386 (E.D.N.Y.2007) (Gleeson, J.). The district court declined to issue the writ in the petitions of James Besser, William Phillips, and Vance Morris, who then appealed. See Morris v. Artus, No. 06 Civ. 4095(RKS), 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.); Phillips v. Artus, No. 05 Civ. 7974(PAC), 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Besser v. Walsh, No. 02 Civ. 6775(LAK), 2005 WL 1489141, at *1 (S.D.N.Y. June 22, 2005) (Kaplan, J.). Because these five appeals presented substantially similar or overlapping issues, we heard them together.

We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York's PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because Besser's conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.

BACKGROUND

a) The Persistent Felony Offender Statute

There are three increasingly harsh levels of sentencing applicable to felony offenders under Article 70 of New York's penal laws pertinent to this appeal. First-time felony offenders are generally sentenced according to indeterminate ranges based on the class of offense. See N.Y. Penal Law § 70.00.² Second felony offenders are subject to enhanced sentences, based solely upon the finding of one qualifying prior felony conviction, again according to the class of offense. See id. § 70.06. Under the PFO statute, a defendant who has been previously convicted of two felonies is a "persistent felony offender" (sometimes "PFO"). See id. § 70.10(1)(a). PFO's may be sentenced to an indeterminate sentence in the range authorized for Class A-I felony offenders rather than the range authorized for the class of the defendant's actual offense. See id. § 70.10(2);³see also N.Y.Crim. Proc. Law § 400.20(1)(b). Class A-I felonies carry a minimum sentence of 15 years and a maximum of life.⁴See N.Y. Penal Law §§ 70.00(2)(a), 70.00(3)(a)(i).⁵

The difference in a defendant's sentencing exposure depends heavily upon which level's range is applicable. Once classified as a PFO, a defendant may be subject to a minimum sentence exceeding the maximum sentence for second felony offenders applicable to the crime committed. For example, a first-time offender convicted of a Class E felony would be subject to a term of 11/3 to 4 years. See id. § 70.00(2)-(3). Were the defendant sentenced for a Class E felony as a second felony offender, he or she would be subject to a term of 1.5 to 4 years. See id. § 70.06(3)-(4). The same defendant given the enhanced sentence under the PFO statute would be subject to a term of 15 years to life. See id. §§ 70.00(2)-(3), 70.10(2).

Under the provisions applicable to first and second felony offenders, the existence or non-existence of a prior felony alone determines the applicable range. See id. §§ 70.00-70.06. To sentence under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to a Class A-I sentence. See id. § 70.10. After making that finding, the court turns to whether "the history and character of the defendant and the nature and circumstances of his criminal conduct" (sometimes "history/character/criminal conduct"), id. § 70.10(2); N.Y.Crim. Proc. Law § 400.20(1), is such that the PFO should, in the public interest, be given a Class A-I sentence.⁶ N.Y.Crim. Proc. Law § 400.20(1). In making this finding, the court must conduct a hearing at which the prosecution bears the burden of proof and "matters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct" must be established by a preponderance of the evidence. Id. § 400.20(5). "Uncontroverted allegations in the statement of the court are deemed evidence in the record." Id. § 400.20(7).

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). The imposition of that enhanced sentence is then subject to two kinds of appellate review. First, an appellate court has the power, in the "interests of justice," to reduce a Class A-I sentence within the Class A-I range, e.g., from 19 years to life to 15 years to life. See N.Y.Crim. Proc. Law § 470.20(6). Second, an imposition of a Class A-I sentence is subject to an "interests of justice" review and will be "held erroneous as a matter of law, if the sentencing court acts arbitrarily or irrationally." People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, 199 (2005). Were imposition of a Class A-I sentence under the PFO statute found by an appellate court to be "arbitrary " or "irrational," the court must resentence the defendant or remand for resentencing to a "legally authorized lesser sentence," N.Y.Crim. Proc. Law § 470.20; see also People v. LaSalle, 95 N.Y.2d 827, 712 N.Y.S.2d 437, 734 N.E.2d 749, 750 (N.Y. 2000) (memorandum decision), usually as a second felony offender or second violent felony offender. See, e.g., People v. Williams, 239 A.D.2d 269, 658 N.Y.S.2d 264, 265 (1997); see also People v. Greene, 57 A.D.3d 1004, 871 N.Y.S.2d 323, 325 (2008) (citing Williams, 658 N.Y.S.2d at 265); People v. Truesdale, 44 A.D.3d 971, 845 N.Y.S.2d 363, 364-65 (2007); cf. People v. Wilsey, 301 A.D.2d 755, 753 N.Y.S.2d 232, 233 (2003); People v. Yale, 49 A.D.2d 167, 373 N.Y.S.2d 901, 904-06...