Portalatin v. Graham, 06 CV 5002(JG).

• Citation: 478 F.Supp.2d 385
• Decision Date: 22 March 2007
• Docket Number: No. 06 CV 5002(JG).,06 CV 5002(JG).
• Parties: Carlos PORTALATIN, Petitioner, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

478 F.Supp.2d 385

Carlos PORTALATIN, Petitioner, v. Harold GRAHAM, Superintendent, Auburn Correctional Facility, Respondent.

No. 06 CV 5002(JG).

United States District Court, E.D. New York.

March 22, 2007.

Joshua Michael Levine, Appellate Advocates, New York, NY, for the Petitioner.

Charles J. Hynes, District Attorney, Kings County, by Arm Bordley, Assistant District Attorney, Brooklyn, NY, for the Respondent.

GLEESON, District Judge.

Carlos. Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.

BACKGROUND

A. Portalatin's Conviction and Sentence Pursuant to New York's Persistent Felony Offender Statute

The evidence at trial established that on July 12, 2002, Portalatin carjacked Stephen Francis at gunpoint and forced him to drive to an empty street in the Williamsburg section of Brooklyn. After a struggle, Francis escaped and Portalatin drove away in the car. Portalatin testified that he and Francis had engaged in consensual sexual conduct, for which Portalatin understood he would be paid. He further testified that when Francis did not pay him, he became upset and sped away in Francis's car. Portalatin denied having a gun or robbing Francis. The jury rejected his testimony, finding Portalatin guilty of robbery in the first degree and kidnapping in the second degree, both class B felonies.

The prosecutor requested that Portalatin be sentenced as a persistent felony offender. New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10, allows — but does not require — a sentencing court to impose a class A-I felony sentence (rather than the sentence otherwise available for the offense of conviction) when the court (1) has found "that a person is a persistent felony offender," and (2) "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." N.Y. Penal Law § 70.10(2). The permissive nature of the enhanced penalty accounts for the fact that § 70.10 is known as the "discretionary" persistent felony offender provision.¹

As discussed in more detail below, before an enhanced sentence may be imposed pursuant to § 70.10, the prosecution must first prove beyond a reasonable doubt that the defendant is a persistent felony offender, that is, that he or she has previously been convicted of two or more felonies. N.Y.Crim. Proc. Law § 400.20(5).² If the sentencing court finds that the defendant is a persistent felony offender, it "must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted," § 400.20(9), i.e., whether the history and character of the defendant and the nature and circumstances of his or her criminal conduct indicate that extended incarceration of the defendant will best serve the public interest. The prosecutor must prove the facts that pertain to the history and character of the defendant and the nature and circumstances of his or her criminal conduct by a preponderance of the evidence. Id. Only after making the required factual findings on the record may a court impose an enhanced sentence pursuant to § 70.10(2). Id. If a court terminates a persistent felony offender hearing without making the "necessary findings," the defendant may not be sentenced as a persistent felony offender. § 400.20(10).

Portalatin's previous felonies were (1) a 1995 conviction for attempted burglary in the second degree, and (2) a 1998 conviction for attempted criminal sale of a controlled substance in the fifth degree. At the sentencing hearing on April 28, 2003, Portalatin did not challenge the existence or the constitutionality of these convictions, and the court found that he "appear[ed] to be eligible for discretionary persistent felony offender adjudication" on that basis. S.Tr. 8-9.³

The court then proceeded to determine whether Portalatin's history and character and the nature and circumstances of his criminal conduct warranted an enhanced sentence and lifetime supervision. It considered a report by the Osborne Association (submitted by defense counsel in mitigation of sentence), the probation report, a letter submitted by the district attorney, and the evidence at trial. S.Tr. 19. The court made the following findings on the record: (1) the crime must have been a "truly terrifying experience" for the victim; (2) there was a gun involved; (3) Portalatin's history did not support his claims of innocence or excuse his conduct; (4) beginning in 1989, Portalatin failed to take advantage of drug treatment opportunities; (5) Portalatin committed crimes immediately upon release from prison after prior convictions; (6) Portalatin was inclined to "prey upon others;" (7) Portalatin could not control his problems; (8) Portalatin did not take advantage of employment opportunities and family support; and (9) Portalatin made efforts to avoid the consequences of his actions. S.Tr. 19-22.

Based on those findings, the court elected to sentence Portalatin as a persistent felony offender. Portalatin received a sentence of 18 years to life in prison on each of the two counts of conviction, to run concurrently. S.Tr. 22.

B. The Direct Appeal

Portalatin appealed his conviction, arguing that (1) the prosecutor committed misconduct during the trial; (2) his sentence violated the jury trial principle set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and (3) the sentencing judge did not follow the procedures required by § 400.20. On May 16, 2005, the Appellate Division affirmed Portalatin's judgment of conviction. People v. Portalatin, 18 A.D.3d 673, 795 N.Y.S.2d 334 (2d Dep't 2005). The court found that the prosecutorial misconduct claim was unpreserved for appellate review and without merit, since "the prosecutor's questions and remarks were entirely within the bounds of fair comment." Id. at 334. The court also rejected both claims related to the sentence as "unpreserved for appellate review and, in any event, without merit." Id. On July 6, 2005, the New York Court of Appeals denied Portalatin leave to appeal from the decision of the Appellate Division. People v. Portalatin, 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 (2005) (Ciparick, J.). Portalatin did not file a petition for a writ of certiorari with the United States Supreme Court.

C. The Instant Petition

Portalatin now seeks a writ of habeas corpus on the ground that the state violated his Sixth Amendment right to a jury trial, guaranteed to Portalatin by the Fourteenth Amendment, when it sentenced him as a persistent felony offender pursuant to § 70.10.

DISCUSSION

A. The Procedural Bar

The Appellate Division rejected Portalatin's claim as both unpreserved for appellate review and lacking in merit. 795 N.Y.S.2d at 334. The use of the conjunctive in the habeas setting is critical. Had the court used "or" instead, its ruling would have to be considered solely a decision on the merits. See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000). But the state court holding here qualifies as a conclusion that the claim was procedurally defaulted, which potentially has special consequences on habeas review. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision); Fama, 535 F.3d at 810 n. 4.

As a general matter, the Supreme Court of the United States will not consider an issue of federal law on review of a state court judgment if that judgment also rests on an adequate and independent state ground. This doctrine, which can deprive the Supreme Court of jurisdiction to review a state court judgment under 28 U.S.C. § 1257, has been imported into the habeas context as a matter of comity to limit the availability of habeas relief where the federal claim has been procedurally defaulted in state court. See Coleman v. Thompson, 501 U.S. 722, 730-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Because a procedural default under state law constitutes an adequate and independent state ground for deciding the claim against the petitioner, federalism concerns permit a federal habeas court to review a procedurally barred claim on the merits only if the petitioner shows cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that a failure to consider the claim will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546.

However, procedural default is not a jurisdictional matter. As mentioned, the concept is based on considerations of comity. As a result, it can be waived by the state. See Mask v. McGinnis, 233 F.3d 132, 137 (2d Cir.2000). Though habeas courts are authorized to raise the issue sua sponte, they are not required to do so. See Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997). Moreover, unlike a waiver of the exhaustion requirement, which after the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") must be express, see 28 U.S.C. § 2254(b)(3), a procedural default may be waived by the state's mere failure to assert it. See, e.g., Mask, 233 F.3d at 137.

Though respondent has included the Appellate Division's reliance on procedural grounds in his description of the procedural history of the case, he has opposed the petition solely on the merits of th...