Portalatin v. Graham

07-1599-pr, 06-3550-pr, 07-3588-pr
Portalatin v. Graham

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2009
8
9 (En Banc Rehearing: July 9, 2010 Decided: October 18, 2010)
10
11 Docket Nos. 07-1599-pr, 06-3550-pr, 07-3588-pr
12 (consolidated for disposition)
13
14
15 CARLOS PORTALATIN,
16
17 Petitioner-Appellee,
18
19 –v.– No. 07-1599-pr
20
21 HAROLD GRAHAM, Superintendent, Auburn Correctional Facility,
22
23 Respondent-Appellant.
24
25
26
27 WILLIAM PHILLIPS,
28
29 Petitioner-Appellant,
30
31 –v.– No. 06-3550-pr
32
33 DALE ARTUS, Superintendent, Clinton Correctional Facility,
34 ANDREW M. CUOMO, New York State Attorney General,
35
36 Respondents-Appellees.
37
38
39
40
41

Page 1 of 62
 1 VANCE MORRIS,
2
3 Petitioner-Appellant,
4
5 –v.– No. 07-3588-pr
6
7 DALE ARTUS, Superintendent, Clinton Correctional Facility,
8 ANDREW M. CUOMO, New York State Attorney General,
9
10 Respondents-Appellees.*
11
12
13
14
15 Before:
16 JACOBS, Chief Judge, WINTER,** CABRANES, POOLER, SACK,***
17 KATZMANN, RAGGI, WESLEY, HALL, LIVINGSTON,
18 LYNCH, CHIN, Circuit Judges.
19
20 WESLEY, J., filed the majority opinion in which JACOBS,
21 C.J., CABRANES, KATZMANN, RAGGI, HALL, LIVINGSTON, LYNCH, and CHIN,
22 JJ., joined.
23
24 WINTER, J., filed a dissenting opinion in which POOLER
25 and SACK, JJ., joined.
26
27 Habeas petitioners challenge the constitutionality of
28 sentences imposed pursuant to New York’s persistent felony
29 offender statute. See N.Y. Penal Law § 70.10. A previously
30 constituted panel of this Court held that the state courts
31 unreasonably applied the Supreme Court’s construction of the
32 Sixth Amendment in Blakely v. Washington, 542 U.S. 296
33 (2004), in affirming the petitioners’ sentences, but
34 remanded to the district court for harmless error analysis.

*
The Clerk of the Court is directed to amend the official caption in
this action to conform with that of this opinion.
**
Senior Circuit Judge Winter was a member of the initial three-judge
panel that heard this appeal, and is therefore eligible to participate in en
banc rehearing. See 28 U.S.C. § 46(c)(1).
***
Senior Circuit Judge Sack was a member of the initial three-judge
panel that heard this appeal, and is therefore eligible to participate in en
banc rehearing. See 28 U.S.C. § 46(c)(1).

Page 2 of 62
 1 Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010). Following
2 this rehearing en banc, and for the reasons discussed
3 herein, the Court rejects that conclusion. Petitions
4 denied.
5
6 The grant of Portalatin’s petition is REVERSED, and the
7 denials of Phillips’s and Morris’s petitions are AFFIRMED.
8
9
10
11
12 LEONARD JOBLOVE, Ann Bordley, Assistant District
13 Attorneys, of counsel, Kings County, Brooklyn,
14 NY, for Respondent-Appellant Harold Graham
15
16 ANDREW C. FINE, The Legal Aid Society, Criminal
17 Appeals Bureau, New York, NY, for Petitioner-
18 Appellant Vance Morris
19
20 MARTIN M. LUCENTE (Andrew C. Fine, on the brief), The
21 Legal Aid Society, Criminal Appeals Bureau,
22 New York, NY, for Petitioner-Appellant William
23 Phillips
24
25 BARBARA D. UNDERWOOD (Andrew M. Cuomo, Attorney
26 General of the State of New York, Roseann B.
27 MacKechnie, Deputy Solicitor General for
28 Criminal Matters, Alyson J. Gill, Assistant
29 Attorney General, of Counsel, on the brief),
30 Solicitor General, for Respondent-Appellees
31 Andrew M. Cuomo and Dale Artus
32
33 JOSHUA MICHAEL LEVINE (Lynn W.L. Fahey, on the brief),
34 Appellate Advocates, New York, NY, for
35 Petitioner-Appellee Carlos Portalatin
36
37
38
39
40
41
42
43
44

Page 3 of 62
 1 WESLEY, Circuit Judge:

2 Petitioners Carlos Portalatin, William Phillips, and

3 Vance Morris were separately convicted in state court and

4 received sentences pursuant to New York’s persistent felony

5 offender statute, N.Y. Penal Law § 70.10. Each petitioned

6 for a writ of habeas corpus on the ground that the New York

7 courts engaged in an unreasonable application of clearly

8 established federal law in affirming their sentences.

9 Specifically, they argue that the Sixth Amendment guarantee

10 of the right to an impartial jury, as construed by the

11 Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000)

12 and its progeny, proscribes the long-used sentencing

13 procedure in New York that results in judicially enhanced

14 sentences for certain recidivist offenders.

15 In the case of petitioner Portalatin, the United States

16 District Court for the Eastern District of New York agreed,

17 issuing a writ of habeas corpus from which the State now

18 appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386

19 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners

20 Phillips and Morris, the United States District Court for

21 the Southern District of New York separately declined to

22 issue such writs. See Phillips v. Artus, No. 05 Civ. 7974,

Page 4 of 62
 1 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty,

2 J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at

3 *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners

4 appealed.

5 In a consolidated appeal, a panel of this Court

6 concluded that New York’s persistent felony offender

7 sentencing scheme violates the Sixth Amendment, and that the

8 New York courts unreasonably applied clearly established

9 Supreme Court precedent in holding otherwise, but remanded

10 the matters to the district court for consideration of

11 whether those errors were harmless. See Besser v. Walsh,

12 601 F.3d 163, 189 (2d Cir. 2010).

13 A majority of judges in active service then called for

14 this rehearing en banc. The Court now holds that the state

15 courts did not engage in an unreasonable application of

16 clearly established Supreme Court precedent in affirming the

17 convictions. Accordingly, the grant of the writ to

18 Portalatin is reversed, and the denials of the writ to

19 Phillips and Morris are affirmed.

20

21

22

Page 5 of 62
 1 Background

2 A. New York’s Recidivist Sentencing Scheme

3 At issue in this case is the constitutionality of New

4 York’s persistent felony offender (“PFO”) sentencing

5 statute, which authorizes lengthy terms of imprisonment for

6 certain recidivist offenders in New York.

7 New York was the first state in the Union to enact a

8 recidivist sentencing law; that is, one that punishes repeat

9 offenders more harshly than first-time offenders. See

10 generally Susan Buckley, Note, Don’t Steal a Turkey in

11 Arkansas – the Second Felony Offender in New York, 45

12 Fordham L. Rev. 76 (1976). New York provided for the

13 enhancement of sentences for second-time offenders beginning

14 in 1796. Act of March 26, 1796, ch. 30, 1789-1796 N.Y. Laws

15 669 (1887 ed.). It subsequently added a mandatory life

16 sentence for fourth-time offenders, Act of July 19, 1907,

17 ch. 645, 1907 N.Y. Laws 1494-95, which was later reduced to

18 an indeterminate term of between fifteen years and life,

19 Act of April 4, 1932, ch. 617, 1932 N.Y. Laws 1312.

20 Ultimately, in revising the Penal Law in 1965, New York

21 began to move away from that rigid mandatory framework —

22 with respect to non-violent offenders — to permit judges

Page 6 of 62
 1 more flexibility in selecting a sentence that is not unduly

2 harsh in any given case:

3 The primary objection to the existing New York
4 provisions is the mandatory feature which
5 requires the court to blind itself to all
6 relevant sentencing criteria, such as the
7 circumstances surrounding the crime for which
8 sentence is to be imposed, the nature and
9 circumstances of the previous crimes, and the
10 history, character and condition of the
11 offender.
12
13 Comm. Staff Notes, reprinted in proposed New York Penal Law

14 (Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376), §

15 30.10 [now § 70.10], at 284.

16 Accordingly, Article 70 of New York’s penal law now

17 sets forth two categories of recidivists, or “persistent

18 offenders.” A persistent violent felony offender is defined

19 as a person who stands convicted of a violent felony (as

20 defined in N.Y. Penal Law § 70.02) and has previously been

21 convicted of two or more violent felonies (as defined in

22 N.Y. Penal Law § 70.04(1)(b)). Such an individual is

23 subject to an enhanced sentencing range, with a maximum term

24 of life in prison, and a minimum term fixed, based on the

25 category of the offense, anywhere from twelve to twenty-five

26 years. N.Y. Penal Law § 70.08(2), (3). A judge does not

27 have discretion to depart from that enhanced range: “[w]hen

Page 7 of 62
 1 the court has found . . . that a person is a persistent

2 felony offender the court must impose an indeterminate

3 sentence of imprisonment [as provided herein].” Id. §

4 70.08(2) (emphasis added).

5 By contrast, subject to certain exceptions, a

6 persistent felony offender is defined as a “person, other

7 than a persistent violent felony offender . . . who stands

8 convicted of a felony after having previously been convicted

9 of two or more felonies.” Id. § 70.10(1)(a).1 Once a

10 defendant is determined to be a PFO, he may receive an

11 indeterminate sentence corresponding to that of a class A-I

12 felony, which ranges from a minimum of fifteen to twenty-

13 five years, and a maximum of life in prison. Id. §§

14 70.10(2); 70.00(3)(a)(i). However, unlike New York’s

15 persistent violent felony offender statute, the PFO statute

16 does not require the judge to impose a sentence within that

17 elevated range. Instead, the decision whether to impose a

18 class A-I sentence is within the judge’s discretion. Id. §

19 70.10(2).

20 The PFO statute is therefore commonly referred to as

21 the “discretionary” persistent felony offender statute. It

1
The full text of the PFO statute is set forth in Appendix A, infra.

Page 8 of 62
 1 permits, but does not require, a class A-I sentence for

2 certain recidivist felons. The procedure by which a judge

3 determines whether to impose a PFO sentence in a particular

4 case is set forth in New York Criminal Procedure Law §

5 400.20. Pursuant to that provision, the prosecution must

6 first prove beyond a reasonable doubt that the defendant is

7 a PFO — that is, that he has previously been convicted of

8 two or more qualifying felonies — before an enhanced

9 sentence is authorized. See N.Y. Crim. Proc. Law §

10 400.20(1), (5). But the court is also directed to engage in

11 a second inquiry, and to assess whether a PFO sentence is

12 warranted before imposing such a sentence, taking into

13 consideration the “history and character” of the defendant

14 and the “nature and circumstances of his criminal conduct.”

15 Id.

16 If, in the court’s view, the undisputed allegations

17 regarding the defendant’s background and the nature of his

18 criminal conduct justify the imposition of the enhanced

19 sentence, and the court is satisfied that the defendant

20 either has no relevant evidence to the contrary or such

21 evidence would not affect the court’s decision, then the

22 court may impose a class A-I sentence (without a further

Page 9 of 62
 1 hearing) pursuant to § 70.10(2). See id. § 400.20(8).

2 Otherwise, the court may schedule a hearing at which the

3 prosecution and defendant are given an opportunity to

4 present evidence as to whether the A-I sentence is

5 warranted. Id. § 400.20(9). And, at the conclusion of that

6 hearing,

7 [i]f the court both finds that the defendant is a
8 persistent felony offender and is of the opinion
9 that a persistent felony offender sentence is
10 warranted, it may sentence the defendant in
11 accordance with the provisions of [Section
12 70.10(2)].
13

14 Id. Throughout the proceeding the prosecution bears the

15 burden of proof. Id. § 400.20(5). If the sentencing court

16 imposes a class A-I sentence, “the reasons for the court’s

17 opinion shall be set forth in the record.” N.Y. Penal Law §

18 70.10(2).

19 To illustrate: A defendant who stands convicted as a

20 first-time offender of a class D felony is subject to an

21 indeterminate sentence, with a minimum term of no less than

22 one year and no more than two and one third years, and a

23 maximum term of between three years and seven years. See

24 id. § 70.00(2)(d), (3)(b). Following the defendant’s second

25 conviction of a class D felony, he faces an indeterminate

Page 10 of 62
 1 sentence with a minimum term of between two years and three

2 and one half years, and a maximum term of between four years

3 and seven years. See id. § 70.06(3)(d), (4)(b). A

4 subsequent conviction of a class D felony triggers the PFO

5 statute. Once the prosecution proves the fact of

6 defendant’s two prior convictions beyond a reasonable doubt,

7 the defendant is subject to a class A-I sentence, in the

8 discretion of the court and pursuant to the procedure

9 described above, with a minimum term of between fifteen and

10 twenty-five years, and a maximum term of life in prison.

11 See id. §§ 70.00(2)(a), (3)(a)(i), 70.10(2).2

12

13 B. Facts and Procedural History

14 1. Carlos Portalatin

15 On July 12, 2002, Portalatin accosted a man at gunpoint

16 and forced him to drive to an empty street in Brooklyn.

17 Following a struggle, the victim managed to escape, and

2
The New York State Department of Correctional Services currently has
custody of approximately 2,450 persistent felons who received sentences
pursuant to either Section 70.08 or 70.10, which accounts for 4.2% of the
total inmate population. State of New York Department of Correctional
Services, Under Custody Report: Profile of Inmate Population Under Custody on
January 1, 2010, available at http://www.docs.state.ny.us/research/reports/
2010/undercustody_report.pdf; see also Joel Stashenko, Penalties for
‘Persistent’ Felons Violate the Constitution, Circuit Says, N.Y.L.J., Apr. 1,
2010, p.6, col. 1. The Department does not distinguish between persistent
felony offenders, and persistent violent felony offenders, for statistical
purposes.

Page 11 of 62
 1 Portalatin drove away in the car. He was convicted of

2 robbery in the first degree and kidnaping in the second

3 degree, both class B violent felonies. See N.Y. Penal Law §

4 70.02(1).

5 The prosecution asked the court to sentence Portalatin

6 as a persistent felony offender. A sentencing hearing was

7 held on April 28, 2003, at which the prosecution proved that

8 Portalatin had been previously convicted of the following:

9 (1) attempted burglary in the second degree in 1995; and (2)

10 attempted criminal sale of a controlled substance in the

11 fifth degree in 1998. Portalatin did not contest the

12 existence of those convictions. The court concluded that

13 Portalatin “appear[ed] to be eligible for discretionary

14 persistent felony offender adjudication” based on those

15 predicate offenses.

16 Next, at step two, the court conducted an assessment to

17 determine whether a class A-I sentence was warranted. The

18 court considered the circumstances of the crimes for which

19 he was convicted, and also examined the history and

20 character of the defendant:

21 [L]ooking back on the history of this defendant,
22 and having read these reports . . . [H]e began
23 his criminal career in 1989, and we have
24 beginning from that point on, the failure to take

Page 12 of 62
 1 advantage of opportunities that might have
2 provided drug treatment, that might have in some
3 way assisted him. We have bench warrants
4 repeatedly. We have parole revocations, and
5 repeated parole revocations to the extent that
6 it’s only when these sentences maxed out that he
7 finally is released, and no sooner is he released
8 than there is a new crime.

9 . . . .

10 He certainly has earned a persistent adjudication
11 as I look at this Rap sheet and the circumstances
12 of this offense and other offenses, and I’m going
13 to adjudicate him a persistent felony offender.
14
15 The court imposed two indeterminate sentences of eighteen

16 years to life imprisonment, to run concurrently. Had the

17 court elected not to sentence Portalatin as a PFO, he would

18 have faced a determinate sentence of between ten and twenty-

19 five years on each count. See N.Y. Penal Law § 70.04(3)(a).

20 Portalatin appealed his conviction, contending that his

21 sentence was imposed in violation of the Sixth Amendment, as

22 construed by the Supreme Court in Apprendi. On May 16,

23 2005, the Appellate Division affirmed the judgment, People

24 v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334, 335 (2d

25 Dep’t 2005), and the New York Court of Appeals subsequently

26 denied him leave to appeal, People v. Portalatin, 5 N.Y.3d

27 793, 793 (2005). Portalatin then sought a writ of habeas

28 corpus in the United States District Court for the Eastern

Page 13 of 62
 1 District of New York, which was granted. Portalatin, 478 F.

2 Supp. 2d at 407. The State took this appeal.

3

4 2. William Phillips

5 On March 13, 1999, Phillips and another man robbed a

6 magazine store in midtown Manhattan. The evidence at trial

7 established that Phillips entered the store with his

8 accomplice, pulled a knife, and demanded money from the

9 store manager. He was convicted following a jury trial of

10 one count of second-degree robbery (at the time a class C

11 violent felony).

12 Following his conviction, the prosecution moved to have

13 Phillips sentenced as a persistent felony offender pursuant

14 to § 70.10. Phillips’s predicate felony offenses included:

15 (1) in 1986, he was convicted of second-degree attempted

16 robbery relating to an incident in which he and an

17 accomplice “grabbed a man on a Bronx Street and forcibly

18 stole his property”; (2) in 1987, he was convicted of third-

19 degree burglary while awaiting sentencing on the 1986 Bronx

20 conviction; (3) also in 1987, he was convicted of fourth-

21 degree grand larceny arising from his theft of a wallet from

22 an undercover police officer; (4) once again in 1987, he was

Page 14 of 62
 1 convicted of third-degree burglary arising from his theft of

2 merchandise from a card store; (5) in 1990, following the

3 completion of his sentences for the above charges, he was

4 convicted of third-degree attempted robbery; and (6) in

5 1994, he was convicted of attempted criminal sale of a

6 controlled substance in the third degree. Phillips also had

7 multiple misdemeanor offenses.

8 A sentencing hearing was held on January 4, 2000, at

9 which the court heard arguments on the prosecution’s § 70.10

10 motion. Phillips did not dispute the existence of his six

11 prior felony convictions. Instead, he challenged the facts

12 found by the jury in his case, maintained his innocence of

13 the March 13, 1999, robbery, and attempted to persuade the

14 court to exercise its discretion not to sentence him as a

15 PFO.

16 On January 13, 2000, the court issued its ruling.

17 First, the court made the threshold determination that

18 “defendant has been convicted of two or more previous

19 felonies and is a persistent felony offender within the

20 meaning of [§ 70.10].” The court then conducted a

21 generalized assessment, and concluded that a class A-I

22 sentence was warranted:

Page 15 of 62
 1 Defendant has demonstrated time and again,
2 throughout his entire adult life, that he cannot
3 be trusted to function normally in society and
4 that he is unwilling and unable to rehabilitate
5 himself. The history and character of defendant
6 and the nature and circumstances of his criminal
7 conduct are such that extended incarceration and
8 lifetime supervision are warranted to best serve
9 the public interest.

10 (citing N.Y. Crim. Proc. Law § 400.20(1); N.Y. Penal Law §

11 70.10). Phillips received an indeterminate sentence of

12 sixteen years to life in prison. Had he not been sentenced

13 as a PFO, he would have faced a determinate sentence of

14 between seven and fifteen years. See N.Y. Penal Law §§

15 70.02(1); 70.04(1), (3)(b).

16 Following his sentence, Phillips exhausted his appeals

17 in state court, see People v. Phillips, 2 A.D.3d 278, 279,

18 768 N.Y.S.2d 812, 812 (1st Dep’t 2003) (rejecting

19 defendant’s Apprendi challenge); People v. Phillips, 3

20 N.Y.3d 645, 645 (June 24, 2004), on reconsideration, 3

21 N.Y.3d 710, 710 (Sep. 30, 2004) (denying leave to appeal),

22 and then brought the instant petition for a writ of habeas

23 corpus in the United States District Court for the Southern

24 District of New York on the grounds that his sentence was

25 imposed in violation of the principle announced in Apprendi

26 v. New Jersey, 530 U.S. 466 (2000). On June 30, 2006, the

Page 16 of 62
 1 district court rejected his Apprendi challenge and declined

2 to issue a certificate of appealability. Phillips, 2006 WL

3 1867386, at *5-7. Phillips then moved for a certificate of

4 appealability in this Court, which was granted.

5

6 3. Vance Morris

7 Morris was convicted following a jury trial of sixteen

8 counts of criminal contempt in the first degree, a class E

9 felony. See N.Y. Penal Law § 215.51(b). Four final orders

10 of protection had previously been issued against Morris when

11 the police were called to his ex-girlfriend’s apartment on

12 July 18, 2001. The woman informed the officers that Morris

13 had come to her residence in violation of the orders of

14 protection, repeatedly banged on her door, and threatened

15 her. While the officers were still present, Morris twice

16 called the apartment and left messages, each time

17 threatening to kill the woman.

18 Following Morris’s conviction, the State moved to

19 sentence him as a persistent felony offender. At sentencing

20 hearings held in April and July of 2002, Morris conceded

21 various prior felony convictions, including: (1) a 1989

22 conviction for attempted robbery in the third degree; (2) a

Page 17 of 62
 1 1992 conviction for grand larceny in the fourth degree; (3)

2 a 1992 conviction for attempted criminal possession of a

3 controlled substance in the fifth degree; and (4) a 1994

4 conviction for robbery in the third degree. The court

5 therefore concluded that Morris qualified as a persistent

6 felony offender under Section 70.10.

7 Next, at step two, the court evaluated whether or not

8 Morris should be sentenced as a PFO. The sentencing judge

9 described the defendant’s long history of “terrorizing” his

10 ex-girlfriend, as well as several of her neighbors, who on

11 several occasions felt it necessary to call the police for

12 fear that “he’s going to kill us all.” In addition, while

13 Morris was incarcerated at Riker’s Island during the

14 pendency of the case, he called his ex-girlfriend on thirty-

15 two separate occasions in violation of the orders of

16 protection. The court considered the defendant’s other

17 criminal history of violence toward women, which include

18 numerous incidents in the subway, inter alia:

19 firing a projectile in the face of a female
20 passenger in 1986, twice snatching pairs of
21 earrings from the ears of female passengers,
22 slapping a [visibly] pregnant female in the face
23 and snatching necklaces from her neck, twice
24 engaging in public masturbation in the subway
25 station in front of female witnesses and grabbing
26 the buttocks of a female rider while threatening

Page 18 of 62
 1 a sexual assault on her.
2
3 The court concluded that Morris’s “criminal record,

4 which spans nearly two decades, establishes his propensity

5 to prey upon helpless women generally, and upon [the ex-

6 girlfriend] in particular. It also serves to demonstrate

7 his utter lack of self control and inability to be

8 rehabilitated.” Morris was sentenced to sixteen

9 indeterminate terms of fifteen years to life in prison, to

10 be served concurrently. If Morris had not been sentenced as

11 a PFO, he would have faced a determinate sentence of between

12 one and one half years and four years on each of the sixteen

13 counts. See N.Y. Penal Law § 70.06(3)-(4).

14 On direct appeal, Morris asserted an Apprendi challenge

15 to his sentence. The Appellate Division rejected that

16 argument as unpreserved, as well as on its merits. See

17 People v. Morris, 21 A.D.3d 251, 251, 800 N.Y.S.2d 6, 7 (1st

18 Dep’t 2005). The New York Court of Appeals denied leave to

19 appeal on September 27, 2005, People v. Morris, 5 N.Y.3d

20 831, 831 (2005), and Morris submitted a petition for a writ

21 of habeas corpus in federal court. On July 30, 2007, the

22 United States District Court for the Southern District of

23 New York denied that petition. Morris, 2007 WL 2200699, at

Page 19 of 62
 1 *1. Morris brought this appeal.

2

3 4. The Consolidated Appeal and Panel Opinion

4 Because the legal question presented by the three

5 petitioners is identical — specifically, whether New York’s

6 recidivist sentencing scheme runs afoul of the Supreme

7 Court’s holding in Blakely v. Washington, 542 U.S. 296

8 (2004) — their appeals were consolidated by our Court.3

9 The case was argued in front of a three-judge panel on April

10 16, 2008, and on March 31, 2010, the panel answered that

11 question in the negative. Besser v. Walsh, 601 F.3d 163,

12 169 (2d Cir. 2010). According to the panel, the Sixth

13 Amendment principle announced in Blakely “prohibits the type

14 of judicial fact-finding resulting in enhanced sentences

15 under New York’s PFO statute.” Id. We ordered this

3
This consolidated appeal originally included five petitioners, two of
whom have been severed from this en banc rehearing (Besser v. Walsh, No. 05-
4375-pr, and Washington v. Poole, No. 07-3949-pr). Besser’s conviction became
final in state court well before the Supreme Court’s decision in Blakely. His
appeal therefore does not present a unique legal question of “exceptional
importance” for the Court, Fed. R. App. P. 35(a)(2), and is effectively
disposed of by our existing precedent, see Brown v. Miller (“Brown II”), 451
F.3d 54, 55 (2d Cir. 2006); Brown v. Greiner (“Brown I”), 409 F.3d 523, 534-35
(2d Cir. 2005). As a result, our decision in Besser v. Walsh, 601 F.3d 163,
169 (2d Cir. 2010), insomuch as it affirmed the judgment of the district court
denying Besser’s petition, remains final with respect to his appeal. In
addition, because Washington predeceased the resolution of his appeal, we
vacated the district court’s judgment and remanded that case with instructions
to dismiss his petition as moot. See United States v. Munsingwear, Inc., 340
U.S. 36, 39-40 (1950); Mfrs. Hanover Trust Co. v. Yanakas, 11 F.3d 381, 383
(2d Cir. 1993).

Page 20 of 62
 1 rehearing en banc and, for the reasons stated below, we

2 conclude that the state courts did not engage in an

3 unreasonable application of clearly established Supreme

4 Court precedent to conclude otherwise. Each of the

5 petitions is therefore denied.

6

7 Discussion

8 A. Standard of Review

9 We review de novo a district court’s decision to grant

10 or deny a habeas corpus petition. See, e.g., Overton v.

11 Newton, 295 F.3d 270, 275 (2d Cir. 2002). Since the

12 enactment of the Antiterrorism and Effective Death Penalty

13 Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,

14 federal habeas review of state court convictions has been

15 narrowly circumscribed, see Felker v. Turpin, 518 U.S. 651,

16 654 (1996) (acknowledging that AEDPA “work[ed] substantial

17 changes” to the ability of a federal tribunal to entertain a

18 habeas petition). Where, as here, the challenged state

19 court decision was adjudicated on the merits,4 the writ may

4
Although the claims asserted by Portalatin and Morris were not
preserved on direct appeal, thus independently barred as a matter of state
procedural law, the Appellate Division in each case cited to the New York
Court of Appeals decision in People v. Rosen, 96 N.Y.2d 329 (2001), to support
its conclusion that those claims were defaulted. See Morris, 21 A.D.3d at
251, 800 N.Y.S.2d at 7; Portalatin, 18 A.D.3d at 674, 795 N.Y.S.2d at 335. As
our Court has previously observed, the procedural analysis in Rosen was

Page 21 of 62
 1 not issue unless the state court proceeding:

2 (1) resulted in a decision that was contrary to,
3 or involved an unreasonable application of,
4 clearly established Federal law, as determined by
5 the Supreme Court of the United States; or
6
7 (2) resulted in a decision that was based on an
8 unreasonable determination of the facts in light
9 of the evidence presented in the State court
10 proceeding.
11

12 28 U.S.C. § 2254(d).

13 To qualify as “clearly established” for the purposes of

14 federal habeas review, a rule of law must be embodied in the

15 “holdings, as opposed to the dicta,” of Supreme Court

16 precedent. Williams v. Taylor, 529 U.S. 362, 412 (2000).

17 And, for a state court decision to be “contrary to,” or an

18 “unreasonable application of,” that Supreme Court precedent,

19 the decision must: (1) “arrive[] at a conclusion opposite to

20 that reached by [the Supreme Court] on a question of law”;

21 (2) “decide[] a case differently than [the Supreme Court] on

22 a set of materially indistinguishable facts”; or (3)

23 “identif[y] the correct governing legal principle . . . but

24 unreasonably appl[y] that principle to the facts of the

necessarily interwoven with substantive federal law, and therefore a citation
to Rosen for the proposition that a claim is procedurally barred does not
present an “independent and adequate” procedural ground foreclosing review of
the merits in a subsequent habeas proceeding. See Brown II, 451 F.3d at 56-
57.

Page 22 of 62
 1 prisoner’s case.” See id. at 412-13. If none of these

2 conditions is met, even if the federal court would have

3 reached a different conclusion on direct review, the

4 petition must be denied. “As we have interpreted [the

5 AEDPA] standard, we decide not whether the state court

6 correctly interpreted the doctrine of federal law on which

7 the claim is predicated, but rather whether the state

8 court’s interpretation was unreasonable in light of the

9 holdings of the United States Supreme Court at the time.”

10 Policano v. Herbert, 507 F.3d 111, 115 (2d Cir. 2007)

11 (internal quotation marks omitted). To that end, “the range

12 of reasonable judgment can depend in part on the nature of

13 the relevant rule. If a legal rule is specific, the range

14 may be narrow . . . As a result, evaluating whether a rule

15 application was unreasonable requires considering the rule’s

16 specificity.” Yarborough v. Alvarado, 541 U.S. 652, 664

17 (2004).

18

19 B. “Clearly Established” Law: Apprendi, Ring, Blakely, and
20 Cunningham
21
22 In the seminal case of Apprendi v. New Jersey, the

23 Supreme Court applied the Sixth Amendment’s guarantee to a

24 trial by an impartial jury to a state law triggering

Page 23 of 62
 1 enhanced sentencing ranges based on judicial factfinding.

2 530 U.S. at 490. There, a New Jersey hate-crime statute

3 permitted the trial judge to impose an “extended term” of

4 imprisonment if the judge found, by a preponderance of the

5 evidence, that the defendant committed the crime “with a

6 purpose to intimidate an individual or group” based on

7 certain enumerated characteristics. Id. at 468-69. The

8 Supreme Court struck down the statute as a violation of the

9 Sixth Amendment. Id. at 497. Because the hate-crime

10 statute permitted a sentencing judge to enhance a

11 defendant’s term of incarceration beyond the maximum

12 otherwise authorized for the underlying offense, based on

13 facts found by the judge by a preponderance of the evidence,

14 the defendant was effectively being charged, convicted, and

15 sentenced to a more serious crime without the protections of

16 a jury trial.5 See id. at 483. The Court in Apprendi set

17 forth the rule and its exception, both now well settled:

18 “Other than the fact of a prior conviction, any fact that

19 increases the penalty for a crime beyond the prescribed

20 statutory maximum must be submitted to a jury, and proved

5
Apprendi was convicted of the crime of possession of a firearm for an
unlawful purpose, punishable under New Jersey law by a term of imprisonment of
five to ten years; following the hate-crime enhancement imposed by the
sentencing judge, a term of ten to twenty years was authorized.

Page 24 of 62
 1 beyond a reasonable doubt.” Id. at 490 (emphasis added).

2 The exception for prior convictions preserved the

3 Court’s earlier holding in Almendarez-Torres v. United

4 States, which affirmed the constitutionality of the use of

5 recidivism as a judicially determined “sentencing factor”

6 authorizing an enhanced sentence. See 523 U.S. 224, 247

7 (1998). There, the Court rejected the argument that 8

8 U.S.C. § 1326(b)(2) violated a defendant’s right to a jury

9 trial because it authorized an enhanced penalty for any

10 alien caught reentering the United States after being

11 deported, if the initial deportation “was subsequent to a

12 conviction for commission of an aggravated felony.” 8

13 U.S.C. § 1326(b)(2); see id. at 226-28. According to the

14 Court, “the sentencing factor at issue here — recidivism —

15 is a traditional, if not the most traditional, basis for a

16 sentencing court’s increasing an offender’s sentence.”

17 Almendarez-Torres, 523 U.S. at 243 (emphasis added).

18 In reaffirming the constitutionality of the use of

19 recidivism as a judicially-found sentencing factor, the

20 Supreme Court has since emphasized that the existence of

21 procedural safeguards embedded in prior criminal

22 proceedings, as well as the lack of dispute or uncertainty

Page 25 of 62
 1 as to the “fact” of a prior conviction, “mitigate[] the due

2 process and Sixth Amendment concerns otherwise implicated in

3 allowing a judge to determine a ‘fact’ increasing the

4 punishment beyond the maximum of a statutory range.”

5 Apprendi, 530 U.S. at 488. To be sure, “[t]he Court’s

6 repeated emphasis on the distinctive significance of

7 recidivism leaves no question that the Court regarded that

8 fact as potentially distinguishable for constitutional

9 purposes from other facts that might extend the range of

10 possible sentencing.” Jones v. United States, 526 U.S. 227,

11 249 (1999); see also Parke v. Raley, 506 U.S. 20, 26 (1992)

12 (acknowledging that recidivism has formed the basis for

13 sentencing enhancements “dat[ing] back to colonial times,”

14 and that recidivist sentencing laws were “currently . . . in

15 effect in all 50 states”).

16 The rule of Apprendi was later reinforced in Ring v.

17 Arizona, in which the Supreme Court struck down a capital

18 sentencing scheme that vested the trial judge with the

19 discretion to determine the presence or absence of

20 statutorily enumerated aggravating factors required for the

21 imposition of a death sentence. 536 U.S. 584, 588 (2002).

22 Under the Arizona law, a defendant could not be sentenced to

Page 26 of 62
 1 death unless the judge found at least one “aggravating

2 circumstance.” Id. at 592-93. Absent that factual finding,

3 the defendant faced a maximum sentence of life in prison.

4 Id. at 597. The result was therefore presaged by Apprendi:

5 “[b]ecause Arizona’s enumerated aggravating factors operate

6 as ‘the functional equivalent of an element of a greater

7 offense,’ the Sixth Amendment requires that they be found by

8 a jury.” Id. at 609 (quoting Apprendi, 530 U.S. at 494

9 n.19). That Arizona dubbed those findings “aggravating

10 factors” altered the analysis no more than New Jersey’s use

11 of the term “sentencing enhancement,” because “[t]he

12 dispositive question . . . is one not of form, but effect.”

13 Ring, 536 U.S. at 602 (internal quotation marks omitted).

14 In Blakely v. Washington, the Supreme Court expanded6 on

6
We agree with the panel opinion insofar as it acknowledged that the
principle announced in Blakely was not “clearly established” prior to its
disposition. See Besser, 601 F.3d at 181-83; see also Brown II, 451 F.3d at
57 n.1; Brown I, 409 F.3d at 533-34. Because Blakely extended the rule of
Apprendi, instead of merely applying it to a new set of facts, its holding was
not “dictated” by prior Supreme Court precedent, and it therefore does not
apply retroactively on collateral review under the Teague doctrine or AEDPA.
See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion); Mungo v.
Duncan, 393 F.3d 327, 333-34 (2d Cir. 2004). But the Supreme Court has not
definitively stated when the ‘snapshot’ is taken to determine the universe of
clearly established Supreme Court precedent for purposes of AEDPA. Compare
Williams, 529 U.S. at 390 (referring to point at which the “state-court
conviction became final”) (Stevens, J., for the Court), with id. at 412
(focusing on the “time of the relevant state-court decision”) (O’Connor, J.,
for the Court). This poses a question of federal law unique to one of the
petitioners. Because Blakely was issued after the Appellate Division
adjudicated Phillips’s appeal on the merits, but before the New York Court of
Appeals denied him leave to appeal, the time of that snapshot is relevant.
Yet we need not resolve that question today. Even assuming the operative date
to be the latter, for the reasons discussed infra, Phillips’s reliance on

Page 27 of 62
 1 the principle announced in Apprendi when it was presented

2 with a challenge to a sentence imposed pursuant to

3 Washington’s Sentencing Reform Act. 542 U.S. at 313-14.

4 Blakely was convicted of “second-degree kidnaping involving

5 domestic violence and use of a firearm,” which carried a

6 statutory maximum sentence of ten years. Id. at 298-99

7 (citing Wash. Rev. Code §§ 9A.40.030(1), 10.99.020(3)(p),

8 9.94A.125). However, pursuant to other statutory

9 provisions, a sentencing judge was required to impose a

10 “standard” sentence of between forty-nine and fifty-three

11 months unless the judge found “substantial and compelling

12 reasons justifying an exceptional sentence.” Id. at 299

13 (quoting Wash. Rev. Code § 9.94A.120(2)). An illustrative

14 list of aggravating factors was set forth in the Act, and

15 the sentencing judge was required to set forth findings of

16 fact and conclusions of law supporting a so-called

17 “exceptional” sentence. Id. at 299. The trial judge

18 decided to give Blakely an exceptional sentence of ninety

19 months, based on the fact that he had acted with “deliberate

20 cruelty,” one of the enumerated grounds for departure. Id.

21 at 300.

Blakely does not alter the resolution of his petition.

Page 28 of 62
 1 The Supreme Court reversed the sentence. The Court

2 first restated the familiar rule (and exception) of

3 Apprendi: “Other than the fact of a prior conviction, any

4 fact that increases the penalty for a crime beyond the

5 prescribed statutory maximum must be submitted to a jury,

6 and proved beyond a reasonable doubt.” Id. at 301 (emphasis

7 added). But the Blakely court went further, and clarified

8 that the relevant “statutory maximum” may not necessarily

9 coincide with the maximum penalty prescribed by the penal

10 code. Instead, “the ‘statutory maximum’ for Apprendi

11 purposes is the maximum sentence a judge may impose solely

12 on the basis of the facts reflected in the jury verdict or

13 admitted by the defendant.” Id. at 303 (emphasis in

14 original). For Blakely, the relevant “Apprendi maximum” was

15 fifty-three months: Because the judge was powerless to

16 sentence Blakely to anything more than fifty-three months

17 based solely on his conviction and the facts admitted

18 pursuant to his guilty plea, the statutory maximum was “no

19 more 10 years . . . than it was 20 years in Apprendi

20 (because that is what the judge could have imposed upon

21 finding a hate crime) or death in Ring (because that is what

22 the judge could have imposed upon finding an aggravator).”

Page 29 of 62
 1 Id. at 304.

2 Moreover, Blakely clarified that a sentencing scheme

3 can violate the Sixth Amendment even if those “facts” that a

4 sentencing judge is required to find are not specifically

5 enumerated by statute. Id. at 305. That the list of

6 aggravating circumstances in the Washington statute was

7 “illustrative rather than exhaustive” did not elide the

8 constitutional flaw: “Whether the judge’s authority to

9 impose an enhanced sentence depends on finding a specified

10 fact (as in Apprendi), one of several specified facts (as in

11 Ring), or any aggravating fact (as [in Blakely]),” id., the

12 authority is derivative of an unconstitutional source.

13 Because Blakely’s ninety-month sentence could not have been

14 imposed but for the judge’s finding of “deliberate cruelty,”

15 it was imposed in violation of the Sixth Amendment. Id.

16 Thus, Blakely settled that the Apprendi maximum is the

17 sentence that is authorized based solely on those factual

18 predicates that are found within the constraints of the

19 Sixth Amendment. That is, those facts that are: (1) proven

20 to a jury beyond a reasonable doubt; (2) admitted by the

21 defendant; or (3) findings of recidivism.

22 Lastly, in Cunningham v. California, the Supreme Court

Page 30 of 62
 1 addressed the validity of California’s determinate

2 sentencing law (“DSL”) in light of Apprendi, Ring and

3 Blakely. Cunningham v. California, 549 U.S. 270, 274

4 (2007). Under the DSL, most substantive offenses were

5 assigned three tiers of determinate sentences: a lower-, a

6 middle-, and an upper-term sentence. Id. at 277. But the

7 discretion of the trial judge to select either the upper-

8 term or lower-term sentence was circumscribed: the statute

9 provided that “the court shall order imposition of the

10 middle term, unless there are circumstances in aggravation

11 or mitigation of the crime.” Id. (quoting Cal. Penal Code §

12 1170(b)) (emphasis added). Circumstances in aggravation

13 were defined as “facts which justify the imposition of the

14 upper prison term,” which were to be “established by a

15 preponderance of the evidence” and “stated orally on the

16 record.” Id. at 278 (quoting Cal. Jud. Council Rules

17 4.405(d), 4.420(b), 4.420(e)) (emphasis in original).

18 Hence, the middle term was the default sentence absent

19 further factual findings.

20 Cunningham was convicted of “continuous sexual abuse of

21 a child” under the age of fourteen, for which the prescribed

22 terms were six, twelve, and sixteen years, respectively.

Page 31 of 62
 1 Id. at 275. At a post-trial sentencing hearing, the judge

2 found by a preponderance of the evidence six aggravating

3 circumstances including, inter alia, the “particular

4 vulnerability” of his victim. Id. Cunningham was sentenced

5 to the upper term of sixteen years. Id. at 276.

6 The Supreme Court held that the DSL violated the Sixth

7 Amendment. In rejecting the State’s argument that the

8 Apprendi maximum was the upper-term sentence — for

9 Cunningham, sixteen years — the Court reaffirmed the

10 principle announced in Blakely that a sentence must be fully

11 authorized by factual predicates obtained in compliance with

12 the Constitution: “If the jury’s verdict alone does not

13 authorize the sentence, if, instead, the judge must find an

14 additional fact to impose the longer term, the Sixth

15 Amendment requirement is not satisfied.” Id. at 290.

16 Because the judge was required to make a factual finding in

17 order to impose the upper-term sentence, the Apprendi

18 maximum was not the upper term, but the middle term, and the

19 use of judicial factfinding to impose the upper term

20 violated the Sixth Amendment. Id. at 292-93.

21 Because Cunningham was decided well after the

22 conviction of each petitioner became final, it is urged by

Page 32 of 62
 1 the State that we cannot consider it in our analysis. To

2 the contrary, a Supreme Court holding is generally operative

3 retroactively in a collateral proceeding so long as it does

4 not announce a “new rule” within the meaning of Teague.

5 See, e.g., Beard v. Banks, 542 U.S. 406, 411 (2004). “[A]

6 case announces a new rule when it breaks new ground or

7 imposes a new obligation on the States or Federal

8 Government. To put it differently, a case announces a new

9 rule if the result was not dictated by precedent existing at

10 the time the defendant’s conviction became final.” Teague,

11 489 U.S. at 301 (emphasis added, internal citations

12 omitted). Similarly, under AEDPA, “clearly established

13 federal law” is “law that is dictated by Supreme Court

14 precedent existing at the time the defendant’s conviction

15 became final.” McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.

16 2003) (internal quotations and brackets omitted). Thus, if

17 the holding of a case was “dictated” by extant Supreme Court

18 precedent at a particular time, the constitutional rule

19 embodied in that case was necessarily “clearly established”

20 at that time.

21 In that light, we have no trouble concluding that the

22 identification of a Sixth Amendment violation in Cunningham

Page 33 of 62
 1 was dictated at the time that the petitioners’ convictions

2 became final on direct review.7 Specifically, the decision

3 in Blakely can be said to have compelled the result in

4 Cunningham, because Blakely left no doubt that the Apprendi

5 maximum is the highest sentence authorized by

6 constitutionally-obtained factual predicates alone: those

7 contained in the jury verdict, those admitted by the

8 defendant, and those respecting recidivism. See Blakely,

9 542 U.S. at 305. Thus, it should have been “apparent to all

10 reasonable jurists,” Lambrix v. Singletary, 520 U.S. 518,

11 527-28 (1997), that the demise of California’s DSL was

12 portended by the holding of Blakely. The State offers no

13 persuasive analytical distinction between the sentencing

14 schemes in Blakely and Cunningham, nor can we discern any.8

7
For the purposes of Teague, a state conviction becomes “final” when
“the availability of direct appeal to the state courts has been exhausted and
the time for filing a petition for a writ of certiorari has elapsed or a
timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S.
383, 390 (1994). The moment of finality for Teague purposes is not to be
confused with the relevant time for determining what federal law is “clearly
established” for purposes of AEDPA. The two concepts are distinct, and we
express no view as to the proper time at which to fix the latter. See supra
note 6.
8
The existence of dissenting opinions in Cunningham does not persuade
us otherwise. See 549 U.S. at 295 (Kennedy, J., dissenting); id. at 310
(Alito, J., dissenting). The dissenters questioned whether California’s DSL
might be susceptible to a remedial construction akin to that afforded the
federal sentencing scheme in Booker, see id. at 297-311 (Alito, J.,
dissenting), and expressed fundamental disagreement with Apprendi itself,
positing a limiting principle to reduce its collateral effects, see id. at
295-97 (Kennedy, J., dissenting). In any event, we do not presume that a non-
unanimous decision by the Supreme Court necessarily establishes a “new rule”
of law. See, e.g., Banks, 542 U.S. at 416 n.5 (“Because the focus of the

Page 34 of 62
 1 See Butler v. Curry, 528 F.3d 624, 636 (9th Cir. 2008)

2 (noting that the Court in Cunningham “simply applied the

3 rule of Blakely to a distinct but closely analogous

4 sentencing scheme”). Because Cunningham did not extend the

5 principle announced in Blakely, but merely applied it to a

6 new set of facts, we hold that Cunningham constitutes

7 “clearly established law” for the petitioners.

8 Nevertheless, for reasons discussed in the remainder of

9 this opinion, we conclude that neither Cunningham nor any

10 other clearly established Supreme Court precedent supports

11 the petitioners’ position.

12

13 C. Apprendi and New York’s PFO Statute

14 1. The operative interpretation: Rosen, Rivera and
15 Quinones
16
17 The New York Court of Appeals has interpreted the PFO

18 statute on three occasions since the Supreme Court’s

19 decision in Apprendi, each time affirming its

20 constitutionality in response to Sixth Amendment challenges.

21 See People v. Quinones, 12 N.Y.3d 116, 131 (2009); People v.

22 Rivera, 5 N.Y.3d 61, 71 (2005); People v. Rosen, 96 N.Y.2d

inquiry is whether reasonable jurists could differ as to whether precedent
compels the sought-for rule, we do not suggest that the mere existence of a
dissent suffices to show that the rule is new.” (emphasis in original)).

Page 35 of 62
 1 329, 336 (2001). Of course, we do not defer to that court’s

2 interpretation of federal law, but we are bound by its

3 construction of New York law in conducting our analysis. We

4 examine each case in turn.

5 In Rosen, the New York Court of Appeals rejected for

6 the first time an Apprendi challenge to New York’s PFO

7 statute. See 96 N.Y.2d at 335. The court acknowledged the

8 familiar rule of Apprendi: “Other than the fact of a prior

9 conviction, any fact that increases the penalty for a crime

10 beyond the prescribed statutory maximum must be submitted to

11 a jury, and proved beyond a reasonable doubt.” Id. at 334

12 (quoting Apprendi, 530 U.S. at 490). But the court went on

13 to hold that the only “fact” necessary to impose a PFO

14 sentence under § 70.10 is the “fact” of recidivism, placing

15 the PFO statute squarely within the exception to the rule:

16 “It is clear from the . . . statutory framework that the

17 prior felony convictions are the sole determin[ant] of

18 whether a defendant is subject to enhanced sentencing as a

19 persistent felony offender.” Id. at 335 (emphasis added).

20 Only after that finding is made will a court look to the

21 defendant’s “history and character,” and the “nature and

22 circumstances of his criminal conduct,” to determine where,

Page 36 of 62
 1 within this now expanded sentencing range, a sentence should

2 be imposed. See id. To that end, “the sentencing court is

3 thus only fulfilling its traditional role — giving due

4 consideration to agreed-upon factors — in determining an

5 appropriate sentence within the permissible statutory

6 range.” Id.

7 In Rivera, the New York Court of Appeals revisited the

8 constitutionality of § 70.10 in light of Blakely and Ring,

9 and repeated its conclusion that recidivism findings are the

10 only necessary factual predicates to impose a PFO sentence.

11 Because “[t]he statute authorizes indeterminate sentencing

12 once the court finds persistent felony offender status,”

13 Rivera, 5 N.Y.3d at 66 (emphasis added), the court held,

14 “the predicate felonies are both necessary and sufficient

15 conditions for imposition of the authorized sentence for

16 recidivism; that is why we pointedly called the predicate

17 felonies the ‘sole’ determinant [in Rosen],” id. at 68

18 (quoting Rosen, 96 N.Y.2d at 335).

19 The court acknowledged that the statute, as written, is

20 susceptible to a construction that would pose an Apprendi

21 problem:

22 We could have decided Rosen differently by
23 reading the statutes to require judicial

Page 37 of 62
 1 factfinding as to the defendant’s character and
2 criminal acts before he became eligible for a
3 persistent felony offender sentence. If we had
4 construed the statutes to require the court to
5 find additional facts about the defendant before
6 imposing a recidivism sentence, the statutes
7 would violate Apprendi.

8 Id. at 67 (emphasis in original). But, as the court

9 explained, the statutes raise no constitutional concern

10 because

11 we did not read the law that way. Under our
12 interpretation of the relevant statutes,
13 defendants are eligible for persistent felony
14 offender sentencing based solely on whether
15 they had two prior felony convictions.

16 Id. (emphasis in original).

17 In thus reiterating its construction of the PFO statute

18 in Rosen, the court in Rivera clearly construed state law to

19 provide for an expanded range of authorized sentences once a

20 defendant is adjudged a persistent felony offender, at which

21 point the trial judge is directed to exercise discretion in

22 determining where within that newly expanded range to impose

23 a sentence:

24 The statutory language requiring the sentencing
25 court to consider the specified factors and to
26 articulate the reason for the chosen sentence
27 grants defendants a right to an airing and an
28 explanation, not a result.
29
30 . . . .

Page 38 of 62
 1 [A] defendant adjudicated as a persistent felony
2 offender has a statutory right to present
3 evidence that might influence the court to
4 exercise its discretion to hand down a sentence
5 as if no recidivism finding existed, while the
6 People retain the burden to show that the
7 defendant deserves the higher sentence.
8

9 Id. at 68. In other words, according to New York’s highest

10 court, the maximum “range” of available sentences is

11 established once the defendant is proven to have two prior

12 qualifying felonies: The judge may impose a sentence within

13 the range permitted for an A-I felony, or may instead impose

14 a lower sentence within the range permitted for a second

15 felony offense.

16 Rivera also addressed the statute’s “mandatory

17 consideration and articulation” of those factors that a

18 trial judge finds relevant in determining what sentence to

19 impose. Id. at 69. The court interpreted that legislative

20 directive to serve two distinct functions.

21 First, it provides a defendant with notice and an

22 opportunity to respond to those factors that the court deems

23 relevant to the exercise of its sentencing discretion within

24 the ranges authorized by the PFO statute. “The statutory

25 language requiring the sentencing court to consider the

26 specified factors and to articulate the reason for the

Page 39 of 62
 1 chosen sentence grants defendants a right to an airing and

2 an explanation, not a result.” Id. at 68; cf. Rita v.

3 United States, 551 U.S. 338, 356 (2007) (“Confidence in a

4 judge’s use of reason underlies the public’s trust in the

5 judicial institution. A public statement of those reasons

6 helps provide the public with the assurance that creates

7 that trust.”).

8 And second, the judge’s articulation of reasoning

9 facilitates an appellate review function that is distinct

10 from the issue of whether the PFO sentence was lawfully

11 imposed. In New York, intermediate appellate courts are

12 vested with the capacious authority to review and modify

13 criminal sentences in the interests of justice. See N.Y.

14 Crim Proc. Law § 470.15(3)(c).9 Notably, that oversight

15 power is unrelated to the legality of the sentence; the

16 power to reverse or modify a sentence based on a legal error

17 is addressed separately in the statute. See id. §

18 470.15(3)(a). Even absent legal error, it rests within the

19 discretion of the Appellate Division to modify a sentence in

20 the interest of justice if it is deemed to be “unduly harsh

9
“A reversal or a modification of a judgment, sentence or order must be
based upon a determination made . . . [a]s a matter of discretion in the
interest of justice.” N.Y. Crim. Proc. Law § 470.15(3)(c).

Page 40 of 62
 1 or severe.”10 In that light, Rivera notes, a sentencing

2 judge should set forth those considerations deemed relevant

3 to the imposition of a PFO sentence for the benefit of an

4 appellate court that must later determine whether the

5 sentence was too severe. Rivera explains:

6 [O]nce a defendant is adjudged a persistent
7 felony offender, a recidivism sentence cannot be
8 held erroneous as a matter of law, unless the
9 sentencing court acts arbitrarily or
10 irrationally.
11
12 The court’s opinion is, of course, subject to
13 appellate review, as is any exercise of
14 discretion. The Appellate Division, in its own
15 discretion, may conclude that a persistent felony
16 offender sentence is too harsh or otherwise
17 improvident. In this way, the Appellate Division
18 can and should mitigate inappropriately severe
19 applications of the statute. A determination of
20 that kind, however, is based not on the law but
21 as an exercise of the Appellate Division’s
22 discretion in the interest of justice as reserved
23 uniquely to that Court.
24
25 5 N.Y.3d at 68-69 (emphasis added) (citing N.Y. Crim. Proc.

26 Law § 470.20(6)). Rivera thus concluded that the PFO

27 statute does not violate the principle announced in Blakely,

28 because it simply creates a recidivist sentencing scheme:

29 the only factual predicates necessary for a judge to impose

10
“Upon modifying a judgment or reversing a sentence as a matter of
discretion in the interest of justice upon the ground that the sentence is
unduly harsh or severe, the court must itself impose some legally authorized
lesser sentence.” N.Y. Crim. Proc. Law § 470.20(6).

Page 41 of 62
 1 a class A-I sentence are those respecting the defendant’s

2 criminal history, and it therefore falls within the carve-

3 out of Almendarez-Torres. Id. at 67.

4 Most recently, in Quinones, the New York Court of

5 Appeals reaffirmed the validity of the PFO statute in light

6 of the Supreme Court’s decision in Cunningham, which it

7 found readily distinguishable. It reiterated much of the

8 reasoning of Rivera, concluding that

9 the New York sentencing scheme, after a defendant
10 is deemed eligible to be sentenced as a
11 persistent felony offender, requires that the
12 sentencing court make a qualitative judgment
13 about, among other things, the defendant’s
14 criminal history and the circumstances
15 surrounding a particular offense in order to
16 determine whether an enhanced sentence, under the
17 statutorily prescribed sentencing range, is
18 warranted. Stated differently, New York’s
19 sentencing scheme, by requiring that sentencing
20 courts consider defendant’s “history and
21 character” and the “nature and circumstances” of
22 defendant’s conduct in deciding where, within a
23 range, to impose an enhanced sentence, sets the
24 parameters for the performance of one of the
25 sentencing court’s most traditional and basic
26 functions, i.e., the exercise of sentencing
27 discretion.

28 12 N.Y.3d at 130.

29

30 2. Brown I and Brown II

31 Our Court has examined the PFO statute on two prior

Page 42 of 62
 1 occasions. Each was presented in the posture of a habeas

2 petition, and in both cases we denied relief.

3 In Brown I, we deemed it a reasonable conclusion by the

4 state court that “the judicial finding of at least two

5 predicate felony convictions comported with the dictates of

6 Apprendi,” and noted that the second-prong inquiry called

7 for under the PFO statute “is of a very different sort” from

8 the judicial factfinding proscribed by Apprendi. 409 F.3d

9 at 534. “It is a vague, amorphous assessment of whether, in

10 the court’s ‘opinion,’ ‘extended incarceration and life-time

11 supervision’ of the defendant ‘will best serve the public

12 interest.’” Id. (quoting N.Y. Penal Law § 70.10(2)). In

13 sum, “[w]e [could not] say the New York Court of Appeals

14 unreasonably applied Apprendi when it concluded that this

15 second determination is something quite different from the

16 fact-finding addressed in Apprendi and its predecessors.”

17 Id. at 534-35.

18 In Brown II, we revisited the issue in light of the

19 Supreme Court’s holding in Ring, and found the PFO statute

20 to be distinguishable from the Arizona capital sentencing

Page 43 of 62
 1 scheme invalidated in Ring. Brown II, 451 F.3d at 59.11 We

2 noted that “Ring did not expound upon the rule announced in

3 Apprendi in a way that is significant to the disposition of

4 this case.” Id. “Each case involved a statute that

5 required the sentencing judge to find some specified fact

6 before imposing an enhanced sentence.” Id. Thus, we

7 concluded that it was not unreasonable for the state court

8 to identify a crucial distinction between the

9 unconstitutional factfinding required under the statutes at

10 issue in both Ring and Apprendi, and the discretionary

11 assessment called for by the PFO statute. Id.

12 But neither Brown I nor Brown II speaks to the question

13 that we face today: In light of the New York Court of

14 Appeals’ construction of the PFO statute in Rivera, and the

15 Supreme Court holdings in Blakely and Cunningham, does the

16 PFO statute suffer from a constitutional defect that the

17 state courts were objectively unreasonable to overlook? We

18 hold that it does not.

19

20

11
Although decided in 2006, Brown II did not consider the effects, if
any, of Blakely on the validity of the PFO statute because the petitioner’s
conviction in Brown II became final before Blakely was decided. Brown II, 451
F.3d at 57 n.1.

Page 44 of 62
 1 D. The New York courts did not engage in an unreasonable
2 application of clearly established Supreme Court
3 precedent in affirming the petitioners’ sentences.

4 Petitioners rely principally on two distinct, though

5 related, arguments to support their contention that the PFO

6 statute requires sentencing judges in New York to engage in

7 unconstitutional factfinding. First, they urge that the

8 step two determination under the PFO statute violates the

9 Sixth Amendment because a sentencing judge is required to

10 make factual findings beyond those respecting the predicate

11 felony convictions before imposing a class A-I sentence.

12 Second, they argue that even if a judge may impose a PFO

13 sentence based solely on the defendant’s predicate felony

14 convictions, the step two determination nonetheless entails

15 unconstitutional factfinding because a judge is required to

16 form a qualitative judgment about the defendant’s criminal

17 history before imposing a PFO sentence, an inquiry that

18 necessarily implicates facts beyond the purview of

19 Almendarez-Torres.

20 Petitioners’ first contention is that the step two

21 determination under the PFO statute (whether a class A-I

22 sentence is warranted) consists of impermissible factfinding

23 under Blakely because it requires the judge to hold a

Page 45 of 62
 1 hearing and set forth findings of fact, beyond those of the

2 prior convictions, before she may impose a PFO sentence.

3 For the reasons that follow, we cannot say that the state

4 courts were unreasonable to reject this argument.

5 Whether the step two determination under the PFO

6 statute entails unconstitutional factfinding hinges not on

7 its nature, but its effect. A core principle has guided

8 this aspect of the Supreme Court’s jurisprudence in the wake

9 of Apprendi: judicial factfinding violates a defendant’s

10 right to a jury trial when it results in a sentence in

11 excess of the Apprendi maximum for a given offense. The

12 Apprendi maximum, in turn, is the apogee of potential

13 sentences that are authorized based on factual predicates

14 obtained in compliance with the Sixth Amendment: those found

15 by the jury, those admitted by the defendant, and findings

16 of recidivism. In contrast, judicial factfinding that is

17 undertaken to select an appropriate sentence within an

18 authorized range — up to and including the Apprendi maximum

19 — does not offend the Sixth Amendment. For “the Sixth

20 Amendment by its terms is not a limitation on judicial

21 power, but a reservation of jury power.” Blakely, 542 U.S.

22 at 308. “The Sixth Amendment question, the Court has said,

Page 46 of 62
 1 is whether the law forbids a judge to increase a defendant’s

2 sentence unless the judge finds facts that the jury did not

3 find (and the offender did not concede).” Rita, 551 U.S. at

4 352 (citing Blakely, Cunningham and Booker) (emphases in

5 original).

6 Our analysis must therefore begin with the PFO statute

7 to determine the Apprendi maximum for each petitioner. That

8 assessment is necessarily guided by the construction placed

9 on the statute by the New York Court of Appeals, which, with

10 some emphasis, has interpreted the statute to authorize a

11 class A-I sentence based on the defendant’s predicate felony

12 convictions alone: “The statute authorizes indeterminate

13 sentencing once the court finds persistent felony offender

14 status,” and “defendants are eligible for persistent felony

15 offender sentencing based solely on whether they had two

16 prior convictions.” Rivera, 5 N.Y.3d at 66, 67 (emphasis in

17 original). Rivera emphasized that “the predicate felonies

18 [are] the ‘sole’ determinant” for whether a judge is

19 authorized to impose a PFO sentence, and that “no additional

20 factfinding beyond the fact of two prior felony convictions

21 is required” to impose the enhanced sentence.” Id. at 68, 70

22 (emphasis in original).

Page 47 of 62
 1 In essence, Rivera construed the statutory directive

2 that a sentencing judge articulate the reasons for imposing

3 a class A-I sentence as one of procedure: the explanation

4 itself satisfies the statutory requirement, regardless of

5 whether it contains any facts beyond those respecting the

6 defendant’s predicate felonies. Accordingly, any other

7 facts upon which the sentencing judge chooses to rely cannot

8 properly be understood as “elements” of the underlying

9 offense in terms of Apprendi, because they are not necessary

10 factual predicates to the imposition of the sentence.

11 Instead, they simply inform the judge’s discretion to select

12 an appropriate sentence within those ranges authorized by

13 statute.12

12
Petitioners urge that the PFO statute is constitutionally defective
because the authorized ranges within which a judge has the discretion to
operate are not always continuous. That is, if a sentencing judge decides
that a PFO sentence is not warranted, the judge may not impose just any lesser
sentence. Instead, the judge must impose a sentence authorized for a second
felony offender, which, in some circumstances, might be well below that
authorized for a PFO. See Besser, 601 F.3d at 172 n.7 (referring to this
potential discontinuity as a sentencing “dead-zone”). For example, a
defendant who stands convicted of a class D felony faces a sentence of between
fifteen to twenty-five years and life as a PFO, but generally a maximum of
seven years if the judge elects to sentence him as a second felony offender.
See N.Y. Penal Law §§ 70.04(3)(c), 70.06(3)(d). Our Court is not persuaded
that such a sentencing gap implicates the Sixth Amendment, for there is no
constitutional mandate that a judge’s discretion to reduce sentences exist
unfettered. Nor is such a gap at all unique to the PFO scheme. For instance,
a defendant convicted of his second class B felony drug offense may be
sentenced to either (1) between two and twelve years in prison; or (2)
probation, but the judge is not authorized to sentence the defendant to
anything in between. See N.Y. Penal Law §§ 70.70(3)(b)(i), 70.70(3)(c),
60.04(5). In any event, the Supreme Court has never suggested — much less
clearly held — that a sentencing scheme raises Sixth Amendment concerns simply
because the court’s discretionary reduction of a sentence will place the

Page 48 of 62
 1 Petitioners assert that Rivera’s construction of the

2 PFO statute is belied by its text, specifically the

3 provision stating that “[s]uch sentence may not be imposed

4 unless . . . [the court] is of the opinion that the history

5 and character of the defendant and the nature and

6 circumstances of his criminal conduct [warrant the

7 sentence.].” N.Y. Crim. Proc. Law § 400.20(1) (emphasis

8 added). If, as petitioners contend, those findings as to

9 the defendant’s history and character are factual predicates

10 essential to the imposition of the A-I sentence, the PFO

11 statute would violate the Sixth Amendment. The New York

12 Court of Appeals acknowledged as much: “If we had construed

13 the statutes to require the court to find additional facts

14 about the defendant before imposing a recidivism sentence,

15 the statutes would violate Apprendi.” Rivera, 5 N.Y.3d at

16 67. But, as we have already observed, the court plainly

17 stated that it “did not read the law that way.” Id.

18 Whether our Court agrees or disagrees with the Court of

19 Appeals’ construction of New York law is of no moment. As

20 the Supreme Court has long held, “state courts are the

defendant in a significantly lower sentencing range. See Williams v. Artuz,
237 F.3d 147, 153-54 (2d Cir. 2001) (habeas relief barred where “no Supreme
Court holding” supporting the petitioner’s claim).

Page 49 of 62
 1 ultimate expositors of state law,” Mullaney v. Wilbur, 421

2 U.S. 684, 691 (1975), and “[n]either this Court nor any

3 other federal tribunal has any authority to place a

4 construction on a state statute different from the one

5 rendered by the highest court of the State.” Johnson v.

6 Fankell, 520 U.S. 911, 916 (1997). More, it would be

7 perverse for a federal court to discourage a state court

8 from searching for “every reasonable construction” of a

9 state statute to “save [the] statute from

10 unconstitutionality.” Skilling v. United States, 130 S. Ct.

11 2896, 2929-30 & n.41 (2010) (quoting Hooper v. California,

12 155 U.S. 648, 657 (1895); see also United States v.

13 Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (collecting

14 cases discussing rule of constitutional avoidance); In re

15 Jacob, 86 N.Y.2d 651, 667 (1995) (same).

16 Of course, we recognize that we are bound only by the

17 New York Court of Appeals’ interpretation of what the terms

18 of the statute mean, and that we are not similarly

19 constrained by that court’s pronouncement of the statute’s

20 “operative effect” for constitutional purposes. See

21 Wisconsin v. Mitchell, 508 U.S. 476, 483-84 (1993). Yet the

22 decision in Rivera was not merely a characterization of the

Page 50 of 62
 1 PFO statute’s practical operation, but an exposition of its

2 terms. Under Rivera, the statute authorizes a class A-I

3 sentence once the court establishes the defendant’s status

4 as a persistent felony offender, and a judge may impose an

5 enhanced sentence based on the defendant’s criminal history

6 alone. Rivera, 5 N.Y.3d at 66, 70-71.

7 We must presume that the New York Court of Appeals

8 meant what it said: the statutory directive to consider the

9 history and character of the defendant, and the nature and

10 circumstances of his crime, is a procedural requirement that

11 is only triggered once a judge is already authorized to

12 impose the class A-I sentence. According to Rivera, it

13 would not be an error of law for a sentencing judge to

14 impose a class A-I sentence based solely on the recidivism

15 findings alone. “Once a defendant is adjudged a persistent

16 felony offender, a recidivism sentence cannot be held

17 erroneous as a matter of law, unless the sentencing court

18 acts arbitrarily or irrationally.” Id. at 68. Lower courts

19 in New York, as they must, consistently rely upon that

20 construction in sentencing. Compare People v. Bazemore, 52

21 A.D.3d 727, 728, 860 N.Y.S.2d 602, 603 (2d Dep’t 2008)

22 (noting that lower court’s “conclusory recitation”

Page 51 of 62
 1 insufficient to comply with procedural requirements of the

2 PFO statute), and People v. Murdaugh, 38 A.D.3d 918, 919-20,

3 833 N.Y.S.2d 557, 559 (2d Dep’t 2007) (same), with People v.

4 Tucker, 41 A.D.3d 210, 212, 839 N.Y.S.2d 15, 18 (1st Dep’t

5 2007) (affirming PFO sentence based solely on lower court’s

6 evaluation of defendant’s criminal history), and People v.

7 Young, 41 A.D.3d 318, 319-20, 838 N.Y.S.2d 550, 551-52 (1st

8 Dep’t 2007) (same).

9 Petitioners also observe that in Rivera, the Court of

10 Appeals reaffirmed that at step two of New York’s PFO

11 scheme, “the People retain the burden to show that the

12 defendant deserves a higher sentence,” see 5 N.Y.3d at 68,

13 and argue that this shows that the effect of the statute is

14 to require additional factfinding before an A-I sentence may

15 be lawfully imposed. We disagree with this

16 characterization, for again, it misconstrues the effect of

17 the facts found at this step. Rivera’s reference to the

18 State’s “burden” notwithstanding, the court made clear that

19 “Criminal Procedure Law § 400.20, by authorizing a hearing

20 on facts relating to the defendant’s history and character,

21 does not grant defendants a legal entitlement to have those

22 facts receive controlling weight in influencing the court’s

Page 52 of 62
 1 opinion.” Id. (emphasis added); see also id. (indicating

2 similarly that “a defendant adjudicated as a persistent

3 felony offender has a statutory right to present evidence

4 that might influence the court to exercise its discretion to

5 hand down a sentence as if no recidivism finding existed”

6 (emphasis added)).

7 Thus, while the meaning of Rivera’s reference to the

8 State’s “burden” is not entirely clear — it might, for

9 example, mean that the State is obligated to prove by a

10 preponderance of the evidence any of the facts it introduces

11 in an attempt to persuade the sentencing judge, or might

12 merely refer in an informal sense to the notion that it

13 typically will be incumbent upon the State to oppose

14 sentencing arguments advanced by defendants — the Court of

15 Appeals was emphatic that the statute does not impose an

16 overarching evidentiary burden upon the State that must be

17 satisfied before the sentencing court may lawfully impose an

18 A-I sentence. In other words, although the sentencing

19 judge, in considering whether to impose the statutorily

20 authorized A-I sentence or instead a lesser sentence, “may

21 implicitly rule on those facts he deems important to the

22 exercise of his sentencing discretion,” the facts in

Page 53 of 62
 1 question “do not pertain to whether the defendant has a

2 legal right to a lesser sentence,” a distinction that “makes

3 all the difference insofar as judicial impingement upon the

4 traditional role of the jury is concerned.” Blakely, 542

5 U.S. at 309 (emphasis in original).

6 In sum, because the New York Court of Appeals has

7 interpreted step two of the PFO sentencing scheme as a

8 procedural requirement that informs only the sentencing

9 court’s discretion, the New York courts were not

10 unreasonable to conclude that this consideration is unlike

11 the factfinding requirements invalidated in Blakely and

12 Cunningham.13 Here, under the New York Court of Appeals’

13 construction, the Apprendi maximum for each petitioner was

14 fixed at that of a class A-I felony once the recidivism

15 findings were established: an indeterminate sentence, with a

13
Indeed, as construed by the New York Court of Appeals, the step two
inquiry under the PFO statute might well be analogized to the judicial
consideration of statutory factors that Congress asks of district court judges
in the federal system. See 18 U.S.C. § 3553(a). Although § 3553(a) applies
to all federal sentences, whereas the challenged step two inquiry applies only
to PFO sentences, that distinction does not bear on our Sixth Amendment
analysis. Under both schemes the required discretionary assessment will have
an impact on the sentence ultimately imposed, but not an unconstitutional
impact, because the court is merely “finding facts” to aid in the selection of
an appropriate sentence within a pre-determined range authorized by statute.
And “[w]e have never doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory range.” United States v.
Booker, 543 U.S. 220, 233 (2005). Just as “[i]n a system that says the judge
may punish burglary with 10 to 40 years, every burglar knows he is risking 40
years in jail,” Blakely, 542 U.S. at 309, a third-time felon in New York knows
that he is risking twenty-five years to life in prison.

Page 54 of 62
 1 minimum term of between fifteen and twenty-five years, and a

2 maximum term of life in prison. See N.Y. Penal Law §

3 70.10(2). Under Rivera, any facts that the sentencing judge

4 considered beyond those respecting recidivism do not

5 implicate the Sixth Amendment, for they did not — and could

6 not — lead to a sentence in excess of that Apprendi maximum.

7 Petitioners’ first argument therefore does not persuade us

8 that habeas relief is warranted.

9 Petitioners’ second argument also focuses on the step

10 two determination required under the PFO statute. They

11 contend that — notwithstanding the Court of Appeals’

12 authoritative construction in Rivera — the PFO statute

13 continues to require unconstitutional factfinding, because

14 even assuming the predicate felony convictions are

15 sufficient to authorize a PFO sentence, the mere fact of

16 those convictions does not suffice. Instead, a sentencing

17 judge must form an opinion about the nature of those

18 convictions before imposing a PFO sentence, an endeavor that

19 necessarily entails factfinding beyond the scope of

20 Almendarez-Torres. That is, a court is required to consider

21 subsidiary facts and surrounding circumstances of those

22 convictions to arrive at a conclusion whether “extended

Page 55 of 62
 1 incarceration and life-time supervision will best serve the

2 public interest.” N.Y. Penal Law § 70.10; see Rivera, 5

3 N.Y.3d at 70-71 (noting that a sentencing judge would be

4 authorized to impose a class A-I sentence with no further

5 factual findings, “[i]f, for example, a defendant had an

6 especially long and disturbing history of criminal

7 convictions”); see also Young, 41 A.D.3d at 320, 838

8 N.Y.S.2d at 552 (affirming sentence imposed based on

9 “court’s discretionary evaluation of the seriousness of

10 defendant’s criminal history”). Petitioners urge that this

11 assessment is a factfinding endeavor under Blakely, and must

12 therefore be reserved for a jury.

13 Assuming — without deciding — that petitioners are

14 correct in reading New York law to require a sentencing

15 judge to consider subsidiary facts respecting a defendant’s

16 criminal history before imposing a PFO sentence, we are not

17 persuaded that such consideration equates to judicial

18 “factfinding” in violation of Blakely. At bottom,

19 petitioners urge that the Almendarez-Torres exception to the

20 rule of Apprendi should be read narrowly (and the rule of

21 Blakely broadly) to forbid a sentencing judge from forming

22 an opinion about a defendant’s criminal history, based on

Page 56 of 62
 1 facts underlying those prior convictions, before imposing a

2 recidivism sentence. Yet there is no clear holding of the

3 Supreme Court to command such a result.14 “Given the lack of

4 holdings from th[e] [Supreme Court]” construing the

5 recidivism exception as narrowly as petitioners urge, “it

6 cannot be said that the state court unreasonably applied

7 clearly established federal law.” Carey v. Musladin, 549

8 U.S. 70, 77 (2006) (internal alterations and quotation marks

9 omitted); see also Lockyer v. Andrade, 538 U.S. 63, 72

10 (2003) (declining to find a legal principle “clearly

11 established” in light of Supreme Court precedents that “have

12 not been a model of clarity,” and “have not established a

13 clear or consistent path for courts to follow”).

14
The range of opinions authored by the Supreme Court in Shepard v.
United States, 544 U.S. 13 (2005), bespoke the lingering uncertainty
surrounding the recidivism exception, and suggested that the Court might be
poised to reconsider its holding in Almendarez-Torres. See id. at 25 (Souter,
J., for a plurality) (questioning whether facts relating to a defendant’s
prior conviction could be considered by a sentencing judge in light of
Apprendi); id. at 27-28 (Thomas, J., concurring in part and concurring in the
judgment) (opining that the recidivism exception to Apprendi had been eroded
and should be overruled); id. at 37-38 (O’Connor, J., dissenting) (challenging
the plurality’s purported extension of Apprendi, and defending the traditional
use of recidivism as a sentencing factor). In the intervening five years,
however, the Court has not undertaken such a reconsideration of Almendarez-
Torres, much less reversed or even limited its holding. Thus, in our own
review of federal sentences, we have concluded that, despite the reservations
expressed in Shepard, “Almendarez-Torres continues to bind this court in its
application of Apprendi.” United States v. Snype, 441 F.3d 119, 148 (2d Cir.
2006); see also United States v. Bonilla, - - - F.3d - - -, No. 09-1799-cr,
2010 WL 3191402, at *8-9 (2d Cir. Aug. 13, 2010) (rejecting, as frivolous,
contention that prior conviction exception of Almendarez-Torres should be
overturned).

Page 57 of 62
 1 Given the lack of guidance as to the precise scope of

2 the recidivism exception, it is unsurprising that the

3 exception does not enjoy uniform application among appellate

4 courts charged with reviewing federal sentences. For

5 example, some courts, including our own, have held that the

6 recidivism exception encompasses such “related facts” as the

7 type and length of sentence imposed, and whether the

8 defendant was on probation when the crime was committed.

9 United States v. Cordero, 465 F.3d 626, 632-33 n.33 (5th

10 Cir. 2006); see also United States v. Corchado, 427 F.3d

11 815, 820 (10th Cir. 2005); United States v. Williams, 410

12 F.3d 397, 402 (7th Cir. 2005); United States v. Fagans, 406

13 F.3d 138, 141-42 (2d Cir. 2005). In contrast, the Ninth

14 Circuit has concluded that the defendant’s probationary

15 status at the time of the crime does not fall within the

16 recidivism exception. See Butler v. Curry, 528 F.3d 624,

17 636 (9th Cir. 2008). Yet, notably, the Ninth Circuit has

18 also acknowledged that the principle remains unsettled, and

19 accordingly has refused to grant habeas relief when a state

20 court has concluded that probationary status may

21 constitutionally be relied upon as a recidivism-based

22 sentence enhancement. Kessee v. Mendoza-Powers, 574 F.3d

Page 58 of 62
 1 675, 679 (9th Cir. 2009).

2 So too here. It might well be constitutionally

3 significant whether a sentencing judge is required to find,

4 for example, that a defendant’s criminal history is

5 “especially violent” before imposing a sentence, or whether,

6 as in New York, a sentencing judge simply must find that the

7 nature of his criminal history justifies “extended

8 incarceration and life-time supervision.” Or, perhaps after

9 Blakely and Cunningham, it does not matter. The Supreme

10 Court may answer that question at some future time. But, if

11 our Court cannot divine a clear answer from the Court’s

12 existing holdings, AEDPA prevents us from faulting a state

13 court for selecting one reasonable conclusion over another.

14 For the time being, the recidivism exception remains, and

15 the Supreme Court has yet to assess a statute in light of

16 Blakely that tethers the authorization for an enhanced

17 sentence solely to findings respecting recidivism. We

18 therefore cannot say that the state courts unreasonably

19 applied clearly established Supreme Court precedent in

20 concluding that the PFO statute is simply different in kind

21 from those invalidated in Blakely and Cunningham.

22

Page 59 of 62
 1 * * *

2 To conclude, the state courts were not unreasonable to

3 discern an appreciable distinction between the PFO statute

4 and those struck down in Blakely and Cunningham: the

5 Washington and California statutes stripped sentencing

6 judges of any discretion to impose an elevated sentence

7 unless they found an additional fact not embodied in the

8 jury verdict. In Blakely, a defendant found guilty of

9 kidnaping was entitled to a sentence of forty-nine to fifty-

10 three months, but for an additional finding of “substantial

11 and compelling reasons justifying an exceptional sentence.”

12 542 U.S. at 299. In Cunningham, a defendant found guilty of

13 continuous sexual abuse of a child was entitled to a

14 sentence of twelve years, but for an additional finding of

15 “circumstances in aggravation.” 549 U.S. at 277.

16 In contrast, the PFO statute — as interpreted by the

17 New York Court of Appeals — creates a recidivist sentencing

18 scheme in which the only factual predicates necessary to

19 impose the enhanced sentence relate to the defendant’s

20 criminal history. Unlike in Blakely and Cunningham,

21 recidivism findings are the touchstone: the predicate

22 felonies alone expand the indeterminate sentencing range

Page 60 of 62
 1 within which the judge has the discretion to operate, and

2 that discretion is cabined only by an assessment of

3 defendant’s criminal history. And the Supreme Court has not

4 yet sounded the death knell for recidivist sentencing laws,

5 nor do its precedents counsel the extent to which a

6 sentencing judge may consider facts respecting recidivism to

7 guide the exercise of her sentencing discretion. The

8 petitions are therefore denied.

9

10 Conclusion

11 For the foregoing reasons, the order granting the writ

12 of habeas corpus to Petitioner-Appellee Portalatin is

13 REVERSED. The orders denying the writ to Petitioner-

14 Appellants Morris and Phillips are AFFIRMED. The panel

15 opinion, 601 F.3d 163, is hereby VACATED.

16

17

18

19

20

21

22

Page 61 of 62
1 Appendix A.

2 New York Penal Law § 70.10:
3 1. Definition of persistent felony offender.
4 (a) A persistent felony offender is a person, other than a
5 persistent violent felony offender as defined in section
6 70.08, who stands convicted of a felony after having
7 previously been convicted of two or more felonies, as
8 provided in paragraphs (b) and (c) of this subdivision.
9 (b) A previous felony conviction within the meaning of
10 paragraph (a) of this subdivision is a conviction of a
11 felony in this state, or of a crime in
12 another jurisdiction, provided:
13 (i) that a sentence to a term of imprisonment in
14 excess of one year, or a sentence to death, was
15 imposed therefor; and
16 (ii) that the defendant was imprisoned under sentence
17 for such conviction prior to the commission of the
18 present felony; and
19 (iii) that the defendant was not pardoned on the
20 ground of innocence; and
21 (iv) that such conviction was for a felony offense
22 other than persistent sexual abuse, as defined in
23 section 130.53 of this chapter.
24 (c) For the purpose of determining whether a person has two
25 or more previous felony convictions, two or more convictions
26 of crimes that were committed prior to the time the
27 defendant was imprisoned under sentence for any of such
28 convictions shall be deemed to be only one conviction.
29 2. Authorized sentence. When the court has found, pursuant to the
30 provisions of the criminal procedure law, that a person is a
31 persistent felony offender, and when it is of the opinion that the
32 history and character of the defendant and the nature and
33 circumstances of his criminal conduct indicate that extended
34 incarceration and life-time supervision will best serve the public
35 interest, the court, in lieu of imposing the sentence of
36 imprisonment authorized . . . for the crime of which such person
37 presently stands convicted, may impose the sentence of
38 imprisonment authorized by that section for a class A-I felony.
39 In such event the reasons for the court’s opinion shall be set
40 forth in the record.

Page 62 of 62
 1 Portalatin v. Graham
2 07-1599
3
4 WINTER, Circuit Judge, with whom Judges Pooler and Sack concur,
5
6 dissenting:
7
8 I respectfully dissent. My dissent assumes familiarity with

9 the panel opinion, Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010),

10 and will be limited to a response to Judge Wesley’s opinion.

11 These appeals concern petitions for writs of habeas corpus

12 in which the petitioners challenge the constitutionality of what

13 actually happened in their sentencing proceedings. Petitioners

14 claim that the sentencing judges enhanced petitioners’ sentences

15 beyond the standard maximum for their crimes of conviction based

16 on the sentencing judges’ findings of facts that were not found

17 by a jury, admitted by petitioners, or sheltered by the Supreme

18 Court’s decision in Almendarez-Torres v. United States, 523 U.S.

19 224, 247 (1998), which held that the fact of prior conviction

20 need not be treated as an element of criminal offense. That some

21 kind of factfinding occurred with regard to each of the

22 petitioners has not been seriously questioned, and that extensive

23 factfinding occurred in one of the cases was expressly conceded

24 in the in banc oral argument by the Solicitor General of New

1
 1 York. My colleagues rely heavily upon AEDPA deference1 but

2 identify only one constitutional argument dispositive of the

3 claims of all petitioners -- regarding the applicable maximum

4 sentences for Apprendi2 purposes -- and that one has been

5 specifically rejected by the Supreme Court in Cunningham v.

6 California, 549 U.S. 270 (2009) and Blakely v. Washington, 542

7 U.S. 296 (2004). Except for that discussion, my colleagues’

8 opinion never responds directly to petitioners’ claims and

9 proffers no other identifiable constitutional theory to which

10 AEDPA deference can be given. Instead, it undertakes an abstract

11 discussion of New York Penal Law Section 70.10 and New York

12 Criminal Procedure Law Section 400.20, New York’s Persistent

13 Felony Offender (“PFO”) sentencing statute, that demonstrates

14 only that the PFO statute can be applied in a constitutional

15 manner. However, these appeals are not facial challenges to the

16 statute but rather to the manner in which the statute was

17 actually applied to each petitioner.3

1
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d. Cir. 2009) (“When the
state court has adjudicated the merits of the petitioner’s claim, we apply the
deferential standard of review established by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), under which we may grant a writ of habeas corpus only if
the 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.’” (quoting 28 U.S.C. § 2254(d))).
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
3
To dispel any doubt that the original panel had an accurate view of New York
law, I set out the details of the original panel’s understanding of sentencing under
the PFO statute in Exhibit A to this opinion. To avoid any claim that I am misstating
the various steps or legal effects of PFO sentencing, the Appendix cites as support,
where pertinent, the PFO statute, People v. Rivera, 5 N.Y.3d 61 (N.Y. 2005), and the
majority opinion.

2
 1 The dissent will first discuss the sentencings of the three

2 remaining petitioners (five petitioners were involved in the

3 panel proceeding). It will then turn to the majority opinion

4 with regard to the four issues at stake in this proceeding,

5 giving full AEDPA deference to all relevant arguments: (i) what

6 are the maximum sentences applicable to petitioners for Apprendi

7 purposes; (ii) whether judicial factfinding altered the maximum

8 sentence applicable to each petitioner; (iii) if so, whether such

9 judicial factfinding was permissible under Almendarez-Torres; and

10 (iv) whether all of the judicial factfinding was permissible

11 because it involved traditional sentencing considerations.

12 a) The Petitioners’ Sentencings

13 The sentencings of the three petitioners represent a fair

14 cross-section of the various issues at stake in this in banc.4

15 1) Phillips

16 Phillips’ sentencing was the simplest. He was convicted of

17 a Class C felony, robbery in the second degree, carrying a

18 maximum sentence as a second felony offender of 15 years. N.Y.

19 Penal Law § 70.06(3)(b). Phillips had six prior felony

20 convictions: two burglaries in the third degree; grand larceny

4
There is a difficulty in analyzing the various sentencing proceedings arising
from the emergence of the Almendarez-Torres issue at the in banc stage. None of the
sentencing courts believed it necessary to distinguish between facts relating to the
predicate PFO convictions that might be sheltered under Almendarez-Torres and other
facts relating to the character, history, and criminal conduct of the particular
defendant. The original panel remanded for an examination of harmless error claims.
Besser, 601 F.3d at 188-89. That remand would have included claims that some facts
might be sheltered under the Almendarez-Torres umbrella.

3
 1 in the fourth degree; attempted robbery in the second degree;

2 attempted robbery in the third degree; and attempted criminal

3 sale of a controlled substance in the third degree. The

4 sentencing court found:

5 Defendant has demonstrated time and again,
6 throughout his entire adult life, that he
7 cannot be trusted to function normally in
8 society and that he is unwilling and unable
9 to rehabilitate himself. The history and
10 character of defendant and the nature and
11 circumstances of his criminal conduct are
12 such that extended incarceration and lifetime
13 supervision are warranted to best serve the
14 public interest. CPL 400.20(1); PL 70.10.
15
16 This case arguably raises serious Almendarez-Torres issues. The

17 principal document in the record apparently is the prosecution’s

18 PFO motion containing Phillips’ legal history. The conclusory

19 statement of the sentencing court, while clearly a finding of

20 fact for Apprendi purposes,5 may have been limited to inferences

21 drawn solely from the predicate PFO convictions and felony of

22 conviction and arguably fall within an interpretation of

23 Almendarez-Torres entitled to AEDPA deference. The Almendarez-

24 Torres issue, if raised by the prosecutors, could have been

25 addressed by the district court pursuant to the original panel

26 remand.

5
Conclusory statements such as these made by the sentencing court have been
treated by the Supreme Court as findings of fact. See Cunningham v. California, 549
U.S. 270, 277, 288-89 (2009) (treating sentencing judge’s finding of “circumstances in
aggravation or mitigation of the crime” as findings of fact); Blakely v. Washington,
542 U.S. 296, 299, 303-04 (2004) (treating sentencing judge’s finding of “substantial
and compelling reasons justifying an exceptional sentence” as findings of fact).

4
 1 2) Portalatin

2 Portalatin was convicted of second degree kidnapping and

3 first degree robbery, both Class B felonies carrying a maximum of

4 25 years as a second felony offender. N.Y. Penal Law §

5 70.06(3)(a). Portalatin’s sentencing involved similar but

6 somewhat more extensive conclusions, including some facts outside

7 any reasonable interpretation of Almendarez-Torres. The

8 prosecution moved by letter for PFO sentencing based on two prior

9 felony convictions, attempted burglary in the second degree and

10 attempted criminal sale of a controlled substance in the fifth

11 degree. The sentencing court also had before it the legal

12 history of Portalatin as well as a report prepared for the

13 defense that covered virtually all aspects of his life. The

14 court concluded:

15 [L]ooking back on the history of this
16 defendant, and having read these reports
17 . . . . [H]e began his criminal career in
18 1989, and we have beginning from that point
19 on, the failure to take advantage of
20 opportunities that might have provided drug
21 treatment, that might have in some way
22 assisted him.
23 We have bench warrants repeatedly. We
24 have parole revocations, and repeated parole
25 revocations to the extent that it’s only when
26 these sentences maxed out that he finally is
27 released, and no sooner is he released than
28 there is a new crime.
29 . . . .
30 He certainly has earned a persistent
31 adjudication as I look at this Rap sheet and
32 the circumstances of this offense and other
33 offenses, and I’m going to adjudicate him a
34 persistent felony offender.

5
 1
2 Some of the facts found may be sheltered by an arguably

3 reasonable interpretation of Almendarez-Torres. However, missed

4 opportunities for drug treatment and the issuance of bench

5 warrants may not be facts relating to PFO convictions, although

6 reliance on them may well have been harmless. All these matters

7 could have been resolved on the original panel remand.

8 3) Morris

9 Morris’s sentencing involved extensive factfinding. After

10 his conviction on 16 counts of criminal contempt for violating

11 orders prohibiting contact with his girlfriend, Class E felonies,

12 the prosecutor entered evidence of convictions for (i) attempted

13 robbery in the third degree; (ii) grand larceny in the fourth

14 degree and attempted criminal possession of a controlled

15 substance in the fifth degree (deemed in the aggregate to be one

16 conviction pursuant to N.Y. Penal Law Section 70.10(1)(c)); and

17 (iii) robbery in the third degree. This evidence qualified

18 Morris as a PFO. The pertinent choice in Morris’s case was

19 between a Class E felony second offender sentence with a maximum

20 of 4 years and a Class A-I sentence with a maximum of life. N.Y.

21 Penal Law § 70.06(3)(d).

22 After an adjournment of the sentencing hearing to obtain a

23 psychiatric examination of Morris, the sentencing judge

24 considered the evidence. This consideration included, inter

25 alia, numerous documents such as the psychiatric evaluation,

6
 1 tapes of 911 calls from Morris’s girlfriend or her neighbors,

2 evidence of numerous instances of obscene behavior on subways,

3 numerous instances of violence or assault on subways,

4 contemptuous behavior in court, contemptuous behavior toward a

5 female prison guard, and a negative report on Morris from the

6 Department of Probation. The defense evidence consisted largely

7 of his girlfriend’s testimony as to his lack of violent behavior.

8 After hearing argument by counsel, the court concluded that

9 Morris should receive a Class A-I sentence. The court rendered

10 extensive written findings of fact formally labeled “Findings of

11 Fact.” The court made a negative credibility finding with regard

12 to the girlfriend’s testimony. The court credited the

13 prosecution’s evidence described above and found that Morris

14 exhibited a propensity for violence, “a disturbing lack of self-

15 control and a pattern of abusive and contemptuous behavior,

16 particularly toward women.” It concluded that the “People . . .

17 met their burden of establishing by a preponderance of the

18 evidence that a sentence [as a Class A-I felon] is warranted.”

19 The sentencing was upheld on appeal.

20 The record of Morris’s sentencing indicates consideration by

21 the court of many actions and characteristics of Morris, and

22 conflicting testimony, that are not related to or inferences

23 drawn from his prior felonies or felony of conviction. The

24 record also indicates that the sentencing judge engaged in what

7
 1 he deemed to be factfinding to choose between the second offender

2 Class E felony sentence with a four year maximum, and a Class A-I

3 sentence with a minimum of 15 years and maximum of life.

4 b) The Majority Opinion

5 Blakely/Cunningham prohibit a sentencing court from finding

6 facts that were not found by a jury, admitted by a defendant, or

7 sheltered by Almendarez-Torres, where such facts are relied upon

8 to elevate the otherwise applicable maximum sentencing range to

9 one with a higher maximum. Cunningham v. California, 549 U.S.

10 270, 282-83 (2007); Blakely v. Washington, 542 U.S. 296, 303-04

11 (2004). Each petitioner argues that his sentencing involved such

12 factfinding and altering of the otherwise applicable maximum

13 sentence.

14 My colleagues argue that: (i) the maximum sentence

15 applicable to all petitioners was, for Apprendi purposes, life;

16 (ii) once two prior felony convictions are shown, the “second

17 step” need not involve dispositive factfinding; (iii) a

18 reasonable interpretation of Almendarez-Torres, if AEDPA

19 deference is shown, allows the sentencing court to find facts

20 relating to the predicate felonies sufficient to impose a Class

21 A-I sentence; and (iv) nothing occurs under the PFO statute that

22 is not recognized as discretionary sentencing using traditional

23 factors. I deal with each argument seriatim.

24 1) Giving All Due AEDPA Deference, What is the Apprendi

8
 1 Maximum for Each Petitioner?

2 My colleagues join the New York Court of Appeals in

3 reasoning that because life imprisonment is the highest sentence

4 to which a defendant is exposed under the PFO statute, life

5 imprisonment is the maximum sentence for Apprendi purposes.6 If

6 my colleagues are correct that life imprisonment is the maximum

7 sentence to which the petitioners were subject for Apprendi

8 purposes, then I would agree that the petitions must be denied.

9 But I do not agree.

10 As my colleagues’ own description of Blakely indicates,7

11 precisely the same argument was made in Blakely and rejected by

12 the Supreme Court, which stated:

13 The State nevertheless contends that there
14 was no Apprendi violation because the
15 relevant “statutory maximum” is not 53
16 months, but the 10-year maximum for class B
17 felonies in § 9A.20.021(1)(b). It observes
18 that no exceptional sentence may exceed that
19 limit. See § 9.94A.420. Our precedents make
20 clear, however, that the “statutory maximum”
21 for Apprendi purposes is the maximum sentence

6
My colleagues’ opinion states: “[U]nder the New York Court of Appeals’
construction, the Apprendi maximum for each petitioner was fixed at that of a class A-
I felony once the recidivism findings were established: an indeterminate sentence,
with a minimum term of between fifteen and twenty-five years, and a maximum term of
life in prison. Under Rivera, any facts that the sentencing judge considered beyond
those respecting recidivism do not implicate the Sixth Amendment, for they did not --
and could not -- lead to a sentence in excess of that Apprendi maximum.” Maj. op. 54
(internal citation omitted).
7
My colleagues quoted Blakely as saying that “the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.” Maj. op. 29
(quoting Blakely, 542 U.S. at 303). They also observed that this “‘statutory maximum’
may not necessarily coincide with the maximum penalty prescribed by the penal code.”
Id.

9
 1 a judge may impose solely on the basis of the
2 facts reflected in the jury verdict or
3 admitted by the defendant.
4
5 Blakely, 542 U.S. at 303. That the Court directly ruled on this

6 issue is underlined by Justice O’Connor’s dissent. Id. at 318

7 (“Under the majority’s approach, any fact that increases the

8 upper bound on a judge’s sentencing discretion is an element of

9 the offense.”) (O’Connor, J., dissenting).

10 Each petitioner concedes that he was “eligible for,”

11 “subject to,” etc., a Class A-I sentence solely because of his

12 prior multiple felonies. Each also argues that without the

13 findings of facts as to which the prosecution bore the burden of

14 proof and that were not found by the jury (discussed in the next

15 subsection), he had to be sentenced within a range carrying a

16 lower maximum. No party disputes the existence of a choice

17 between sentencing within a range with a lower maximum and

18 sentencing to a Class A-I term. Blakely is therefore directly

19 on point.

20 Cunningham reaffirmed Blakely in this respect. 549 U.S. at

21 288-89 (using Blakely’s definition of the Apprendi maximum to

22 find California’s sentencing scheme unconstitutional).

23 Cunningham, moreover, involved non-continuous sentences, as is

24 the case in Morris’s petition. In that regard, the Cunningham

25 decision directly contradicts the statement in Footnote 12 of my

26 colleagues’ opinion that the Supreme Court has never suggested

10
 1 that non-continuous schemes raise Sixth Amendment concerns. Maj.

2 op. 48. In the very heart of the Court’s holding, it stated:

3 California’s Legislature has adopted
4 sentencing triads, three fixed sentences with
5 no ranges between them. Cunningham’s
6 sentencing judge had no discretion to select
7 a sentence within a range of 6 to 16 years.
8 His instruction was to select 12 years,
9 nothing less and nothing more, unless he
10 found facts allowing the imposition of a
11 sentence of 6 or 16 years. Factfinding to
12 elevate a sentence from 12 to 16 years, our
13 decisions make plain, falls within the
14 province of the jury employing a beyond-a-
15 reasonable-doubt standard, not the bailiwick
16 of a judge determining where the
17 preponderance of the evidence lies.
18
19 Cunningham, 549 U.S. at 292.

20 Similarly, in Morris’s case, the sentencing judge had to

21 choose between two ranges: 1.5 to 4 years and 15 years to life

22 -- an eleven-year gap between the maximum in the lower range and

23 the minimum in the higher range. Cunningham is, therefore, also

24 directly on point.

25 The reasoning adopted by my colleagues with respect to

26 analyzing the maximum sentence for Apprendi purposes has thus

27 been expressly rejected by the Supreme Court, and AEDPA deference

28 is inapplicable. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d

29 Cir. 2009) (AEDPA deference not applicable where state court’s

30 adjudication was “contrary to, or involved an unreasonable

31 application of, clearly established Federal law as determined by

32 the Supreme Court of the United States”) (internal quotation

11
 1 marks omitted). The Apprendi maximum for each petitioner is the

2 maximum second felony offender sentence for their crime of

3 conviction. That maximum in each case is less than life

4 imprisonment.

5 2) Factfinding for Apprendi Purposes

6 Believing that the immediately preceding discussion

7 establishes that petitioners’ PFO sentencing involved a choice

8 between sentencing ranges with different maximum sentences for

9 Apprendi purposes, I turn to the next question: whether in

10 petitioners’ cases that choice was based on the sentencing

11 judges’ findings of facts beyond those found by the jury in the

12 felony of conviction or admitted by the defendant. Whether the

13 findings are sheltered by Almendarez-Torres is dealt with in the

14 next subsection.

15 Conspicuously absent from my colleagues’ opinion is any

16 clear denial that, in petitioners’ cases, “step two” --

17 consideration of evidence relating to the character, history, and

18 nature of the criminal conduct of the defendant -- involved

19 factfinding beyond the multiple prior felonies.

20 Instead the opinion is at pains to establish that, under the

21 PFO sentencing statute, two prior felonies alone “authorize”8 a

22 Class A-I sentence, that defendants are “eligible for”9 or

8
Maj. op. 47, 50, 51.
9
Maj. op. 47.

12
 1 “subject to”10 a Class A-I sentence based “solely”11 on two prior

2 felonies; that two prior felonies are the “sole determinant for

3 whether a judge is authorized to impose a PFO sentence”;12 that

4 “no additional factfinding beyond the fact of two prior felony

5 convictions is required”13 to impose a PFO sentence; that two

6 prior felony convictions are “necessary and sufficient”14 to

7 impose the enhanced sentence; and that the second step findings

8 are not “necessary” for15 or “essential to”16 a recidivist

9 sentence.

10 None of the quoted phrases purport to be mandatory, i.e.,

11 they do not state that two predicate felonies alone require a

12 Class A-I sentence. All that the phrases purport to state is

13 that the multiple predicate felonies alone: (i) trigger the PFO

14 sentencing process, (ii) expose the defendant to the possibility

15 of a Class A-I sentence, and (iii) may be sufficient in and of

16 themselves to justify such a sentence. However, none of that is

17 disputed, and none of that disposes of any of the appeals before

18 us.

10
Maj. op. 10.
11
Maj. op. 38, 47, 51.
12
Maj. op. 47.
13
Maj. op. 47.
14
Maj. op. 37.
15
Maj. op. 48.
16
Maj. op. 49.

13
 1 All of the petitioners assert colorable claims that their

2 Class A-I sentences were based on factfinding going beyond the

3 predicate felonies, without which a second felony offender

4 sentencing range with lower maximum sentences would concededly

5 have been applicable. To put it another way, my colleagues have

6 successfully defended the PFO statute against a facial attack by

7 showing that the predicate felonies may alone justify a Class A-I

8 sentence, while not addressing the claims before us that

9 factfinding beyond the predicate felonies actually occurred and

10 enhanced the sentences of the petitioners.

11 Without linking their discussion to any relevant and

12 identifiable constitutional theory, my colleagues also downplay

13 the importance of the second step, describing it as “procedural,”

14 one that merely informs the exercise of sentencing discretion.

15 Maj. op. 51, 54. In fact, the Supreme Court has expressly held

16 that

17 broad discretion to decide what facts may support an
18 enhanced sentence, or to determine whether an enhanced
19 sentence is warranted in any particular case, does not
20 shield a sentencing system from the force of our
21 decisions. If the jury’s verdict alone does not
22 authorize the sentence, if, instead, the judge must
23 find an additional fact to impose the longer term, the
24 Sixth Amendment requirement is not satisfied.
25
26 Cunningham, 549 U.S. at 290 (citing Blakely, 542 U.S. at 305 &

27 n.8). Regardless of whether the second step is labeled

28 “procedural” or whether it informs discretion, the second step in

29 the case of all petitioners involved which of two sentencing

14
 1 ranges was to be selected and the choice was between ranges with

2 different maximum sentences.

3 Conceding that facts beyond the felony convictions may be

4 considered in the second step,17 my colleagues also quote Rivera

5 to the effect that defendants do not have “a legal entitlement to

6 have those facts receive controlling weight in influencing the

7 court’s opinion.” Maj. op. 52 (quoting People v. Rivera, 5

8 N.Y.3d 61, 68 (N.Y. 2005)) (emphasis omitted). Of course, the

9 defendant has no “legal entitlement” to prevail at the second

10 step or to have his or her evidence given “controlling weight.”

11 No petitioner is arguing that showing up at a sentencing

12 hearing and expressing remorse entitled him to sentencing as a

13 second felony offender as a matter of law. Each is arguing only

14 that judicial factfinding took place and unconstitutionally

15 guided the choice between the two legally available sentencing

16 ranges.

17 My colleagues make a final attempt to downplay the second

18 step. They describe the statutory requirement of a statement of

19 reasons by the sentencing judge for imposing a Class A-I range

20 sentence rather than a lower range sentence as intended only to

21 “facilitate[] an appellate review function that is distinct from

17
My colleagues’ opinion states: “[A]ny facts that the sentencing judge
considered beyond those respecting recidivism do not implicate the Sixth Amendment,
for they did not -- and could not -- lead to a sentence in excess of that Apprendi
maximum.” Maj. op. 54. The Apprendi maximum issue is discussed supra.

15
 1 the issue of whether the PFO sentence was lawfully imposed.”18

2 Maj. op. 40. That characterization is correct so far as

3 “lawfully imposed” means only that once two prior felonies have

4 been proven, a defendant is legally “eligible for,” “subject to,”

5 etc. a Class A-I sentence. It cannot mean more than that because

6 it is also conceded that an appellate court can overturn the

7 “lawfully imposed” sentence and resentence (or order

8 resentencing) to a legally available lower range. For example,

9 no one claims that a mistaken finding of fact relating to a

10 defendant’s prior bad conduct on which a sentencing judge based a

11 Class A-I sentence could not be the ground for overturning on

12 appellate review a Class A-I sentence on appeal. If not, it can

13 hardly be said that no significant factfinding takes place in the

14 second step.

15 My colleagues’ avoidance of a definitive answer to whether

16 factfinding beyond the predicate felonies may occur in the second

17 step or to whether it did occur in the case of any of the

18 petitioners, must be contrasted with the position taken by

19 appellate counsel for the prosecution and by the Rivera decision

20 itself. In the in banc oral argument, the New York Solicitor

18
This is a peculiar basis for downplaying the significance of the second step,
given that this court frequently remands appeals on the ground that the sentencing
judge’s statement of reasons is not sufficient to permit appellate review. See, e.g.,
United States v. Richardson, 521 F.3d 149, 159-60 (2d Cir. 2008); United States v.
DeMott, 513 F.3d 55, 58 (2d Cir. 2008); United States v. Hall, 499 F.3d 152, 156-57
(2d Cir. 2007).

16
 1 General conceded that facts were found in the sentencing

2 proceedings of the petitioners.19 Moreover, in Rivera, the New

3 York Court of Appeals used the words “fact” or “factfinding”

4 freely with regard to the second step. See e.g., Rivera, 5

5 N.Y.3d at 67-68 (referring repeatedly to the sentencing court’s

6 consideration of “facts” found in the second step). The court

7 neither limited the inquiry to predicate crimes nor downplayed

8 the importance of the second step. The Court of Appeals

9 described that step as one in which “the sentencing court . . .

10 will consider holistically the defendant’s entire circumstances

11 and character, including traits touching upon the need for

12 deterrence, retribution and rehabilitation unrelated to the crime

13 of conviction.” Rivera, 5 N.Y.3d at 69 n.8.

14 With regard to the petitioners before us, the sentencing

15 judges showed no signs of viewing the second step as anything but

16 involving the consideration of evidence and the finding of facts.

17 As noted, in Morris’s case, the sentencing judge made extensive

18 findings of fact and formally labeled them as such. See supra at

19 8.

20 Finally, the constitutional significance of the second step

19
SG: The judge found that [Morris] was a persistent felony offender on
the two prior crimes and found quite a number of additional facts.
. . .
Court: With all three petitioners here, facts were found and were relied
upon in imposing the PFO sentence that went beyond any of the
convictions, isn’t that right?
SG: I believe that is true, [although] I’m not as familiar with the
Portalatin facts.

17
 1 is underscored by the statutory provision that “the burden of

2 proof is upon the people” in this phase. N.Y. Crim. Proc. Law §

3 400.20(5). In the first step, the PFO predicate convictions must

4 be proven beyond a reasonable doubt. Id. In the second step,

5 “[m]atters pertaining to the defendant’s history and character

6 and the nature and circumstances of his criminal conduct” need be

7 proven only by a preponderance of the evidence. Id. All

8 relevant evidence must be considered and the ordinary rules of

9 evidence, save for those relating to privileges, do not apply.

10 Id. In Rivera’s own words, “the People retain the burden to show

11 that the defendant deserves the [Class A-I] sentence.” 5 N.Y.3d

12 at 68. My colleagues state that it is “not entirely clear” what

13 this statement means. Maj. op. 53. In fact, it is a routine

14 formulation pertinent to sentencing generally -- including the

15 federal system, see 18 U.S.C. § 3553 -- where a range of

16 sentences is permissible. It means what it says. If the

17 prosecution failed to prove by a preponderance of the evidence

18 that one or more of the petitioners “deserve,” a Class A-I

19 sentence, the petitioner would have been sentenced to a range

20 with a lower maximum. Rivera, 5 N.Y.3d at 68

21 In short, however characterized, the second step with regard

22 to the present petitioners involved the presentation of evidence

23 upon which the sentencing judge found facts and chose between

24 sentencing ranges with different maximum sentences. Nothing in

18
 1 my colleagues’ opinion, save for the discussion of Almendarez-

2 Torres, responds to the claim of each petitioner that factfinding

3 altered the sentencing and applicable maximum range.

4 3) Giving Full AEDPA Deference, What is the Effect of

5 Almendarez-Torres?

6 The decision in Almendarez-Torres has played a minor role in

7 this litigation until now. None of the New York sentencing

8 courts in the present petitions mentioned it, much less attempted

9 to distinguish evidence or facts sheltered by Almendarez-Torres

10 from those not sheltered. In Rivera, the Court of Appeals

11 mentioned Almendarez-Torres only with regard to proving the

12 existence of prior convictions. 5 N.Y.3d at 67. Certainly the

13 original panel’s remand would have allowed the district courts to

14 consider whether facts found by New York sentencing courts in

15 each of appellants’ sentencing hearings were sheltered by

16 Almendarez-Torres.

17 My colleagues’ discussion of Almendarez-Torres concerns in

18 part the breadth of that decision with regard to what facts are

19 sheltered by it. There are many variations here: e.g., (i) it

20 shelters only the existence of the fact of the prior convictions;

21 or (ii) it shelters only the existence of prior convictions and

22 matters proven to a jury or admitted by the defendant in

23 connection with the convictions; or (iii) it shelters the

24 existence of the convictions, matters proven or admitted, and

19
 1 matters relating to the convictions not proven to a jury or

2 admitted by the defendant; and (iv) inferences drawn from any of

3 the above. My colleagues give AEDPA deference to (iv). Maj. op.

4 56-57.

5 I will not quarrel with their conclusion because it is

6 largely irrelevant at this stage. Even if AEDPA deference were

7 shown to (iv), it disposes of none of the appeals before us,

8 except perhaps for Phillips, as to whom the failure to

9 rehabilitate may be an inference drawn solely from the predicate

10 convictions. In the other sentencing proceedings before us,

11 evidence was proffered and mentioned by the sentencing judges

12 that was not even arguably covered by Almendarez-Torres. While

13 consideration of Almendarez-Torres might identify some sheltered

14 facts and then lead to a conclusion that other findings were

15 harmless -- a difficult conclusion perhaps in Morris’s case --

16 the panel left that to the remand.

17 I must also note that my colleagues’ discussion of

18 Almandarez-Torres implies that the PFO statute at the second step

19 limits consideration, or findings, of facts to matters sheltered

20 by that decision. Maj. op. 56 (addressing only the situation

21 where “a sentencing judge . . . consider[s] subsidiary facts

22 respecting a defendant’s criminal history before imposing a PFO

23 sentence”). Again, they fail to address appellants’ claims of

24 what actually happened at their sentencing hearings, where facts

20
 1 going beyond matters relating to the prior convictions were

2 allegedly found.

3 4) Giving Full AEDPA Deference, Is Factfinding Regarding

4 Traditional Sentencing Factors Free of Apprendi Restraints?

5 Reference has been made throughout these proceedings to the

6 fact that the second step and its factfinding involve the

7 consideration of traditional sentencing factors and is not unlike

8 the requirements of Section 3553(a).20 I agree but find the

9 point irrelevant.

10 Blakely/Cunningham radically altered the use of traditional

11 sentencing factors where findings of fact and conclusions

12 regarding traditional factors alter maximum sentences. Indeed,

13 each of those cases involved sentencing enhancements altering

14 maximum sentences based on generalized findings well within the

15 range of traditional factors -- “substantial and compelling

16 reasons justifying an exceptional sentence,” Blakely, 542 U.S. at

17 299, and “circumstances in aggravation or mitigation of the

18 crime,” Cunningham, 549 U.S. at 277 -- but were still held

19 unconstitutional. As for Section 3553(a), that provision is

20 certainly an expression of traditional factors, but it cannot be

21 used to alter maximum sentences. That is in fact what Booker was

20
My colleagues state that “the step two inquiry under the PFO statute might
well be analogized to the judicial consideration of statutory factors that Congress
asks of district court judges in the federal system.” Maj. op. 54 n.13.

21
1 about.21

2 CONCLUSION

3 Except for the argument made with regard to maximum

4 sentences for Apprendi purposes, which has been specifically

5 rejected by the Supreme Court, nothing in my colleagues’ opinion

6 identifies a constitutional argument that even arguably disposes

7 of Portalatin’s and Morris’s claims regarding factfindings

8 altering their maximum sentences. I therefore respectfully

9 dissent.

21
Some of the briefing has suggested that while the PFO statute as once applied
violated Blakely/Cunningham, Rivera altered its application in a way that renders it
constitutional. Whether the PFO procedures are now different is irrelevant with
regard to the present petitions because the petitioners claim that the procedure under
which they were sentenced was unconstitutional. See Liberta v. Kelly, 839 F.2d 77, 81
(2d Cir. 1988) (defendant could challenge the constitutionality of the criminal
statute under which he was convicted, even where the court affirmed his conviction by
excising prospectively the allegedly unconstitutional portions, because defendant had
been convicted under the unaltered statute). In any event, if New York’s application
of the PFO statute has been altered, the alteration can be considered when cases
involving petitioners subject to the newly altered procedures arise.

22
 1 Exhibit A

2

3 Using a Class E felony as an example, the original panel’s

4 view of the mechanics (what happens) of PFO sentencing is as

5 follows:

6 The defendant is convicted of a felony.
7 The maximum sentence for a first or second
8 felony offender is 4 years. N.Y. Penal Law
9 §§ 70.00(2)(e), 70.06(3)(e). After the
10 conviction, the prosecution enters into
11 evidence certified convictions or gets a
12 stipulation from the defense, sufficient to
13 prove beyond a reasonable doubt two or more
14 prior felony convictions of the defendant.
15 Maj. op. 8.
16 Because of the prior convictions, and
17 without more, the defendant has the status of
18 a persistent felony offender and is “eligible
19 for” or “subject to” a Class A-I felony
20 sentence of 15 years to life. See People v.
21 Rivera, 5 N.Y.3d 61, 66-67 (N.Y. 2005)
22 (citing N.Y. Penal Law § 70.10(1)(a)); Maj.
23 op. 10-11. The sentencing judge has, by
24 virtue of the prior felony convictions alone,
25 “authori[ty]” to impose a Class A-I sentence.
26 See Rivera, 5 N.Y.3d at 66; Maj. op. 47.
27 The “authority” to impose a Class A-I
28 sentence is not absolute but is
29 circumscribed. Before a Class A-I sentence
30 may be imposed, the prosecution “retain[s]
31 the burden to show that the defendant
32 deserves the [Class A-I sentence].” Rivera,
33 5 N.Y.3d at 68; see also N.Y. Crim. Proc. Law
34 § 400.20(5). The defendant may present
35 evidence at a hearing to influence the
36 sentencing court “to exercise its discretion
37 to hand down a sentence as if no recidivism
38 finding existed.” Rivera, 5 N.Y.3d at 68;
39 see also N.Y. Crim. Proc. Law § 400.20(1));
40 Maj. op. 9-10, 52.
41 The sentencing judge has discretion to
42 impose a Class A-I sentence or a lesser
43 “authorized” sentence. See Rivera, 5 N.Y.3d

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 1 at 67; N.Y. Penal Law § 70.10(2); N.Y. Crim.
2 Proc. Law § 400.20(1). The exercise of this
3 discretion is guided by “factfinding” based
4 on the evidence adduced at the sentencing
5 hearing, including the prior felonies and the
6 felony of conviction. See Rivera, 5 N.Y.3d
7 at 66-68; N.Y. Penal Law § 70.10(2); N.Y.
8 Crim. Proc. Law § 400.20(1)-(2); Maj. op. 52-
9 53.
10 The choice between a Class A-I sentence
11 and a lower sentence would, in the case of a
12 Class E felony, be a choice between: (i) a
13 Class A-I sentence with a range of a minimum
14 of 15 years to a maximum of life, and (ii) a
15 first or second felony offender sentence with
16 a maximum of 4 years. Compare N.Y. Penal Law
17 §§ 70.00(2)(e), 70.06(3)(e), with id. §
18 70.00(2)(a); see Rivera, 5 N.Y.3d at 68-69
19 n.7 (citing People v. Williams, 658 N.Y.S.2d
20 264, 265 (App. Div. 1997) (finding a Class
21 A-I sentence to be “an improvident exercise
22 of discretion” and ordering the resentencing
23 of the defendant “as a second felony
24 offender”)); see also People v. Jennings, 822
25 N.Y.S.2d 501, 502 (App. Div. 2006) (“If the
26 sentencing court had not found defendant a
27 persistent felony offender, the maximum
28 sentence it could have imposed would have
29 been an indeterminate term of two to four
30 years . . . .”); Maj. op. 10 (discussing
31 possible sentences in the case of a Class D
32 felony).
33 The sentencing judge may reach a variety
34 of conclusions regarding the exercise of
35 discretion. The nature and number of the
36 prior felonies and the evidence leading to
37 the felony of conviction may themselves be
38 “sufficient” to justify the Class A-I
39 sentence. See Rivera, 5 N.Y.3d at 70-71
40 (“If, for example, a defendant had an
41 especially long and disturbing history of
42 criminal convictions, a persistent felony
43 offender sentence might well be within the
44 trial justice’s discretion even with no
45 further factual findings.”). Or the prior
46 felony convictions and felony of conviction
47 along with other evidence may be sufficient
48 to justify a Class A-I felony sentence. See

24
 1 Rivera, 5 N.Y.3d at 67-69; N.Y. Penal Law §
2 70.10(2); N.Y. Crim. Proc. Law § 400.20(1)-
3 (2). Or the evidence may be such that the
4 sentencing judge in his or her discretion
5 imposes a first or second felony offender
6 sentence. See Rivera, 5 N.Y.3d at 67 (“If,
7 based on all it heard, the court’s view of
8 the facts surrounding defendant’s history and
9 character were different, the court might
10 well have exercised its discretion to impose
11 a less severe sentence.”); N.Y. Penal Law §
12 70.10(2); N.Y. Crim. Proc. Law § 400.20(1).
13 Imposition of a Class A-I persistent
14 felony offender sentence rather than a first
15 or second felony offender sentence is subject
16 to appellate review under a deferential
17 standard. See Rivera, 5 N.Y.3d at 68
18 (“[O]nce a defendant is adjudged a persistent
19 felony offender, a recidivism sentence cannot
20 be held erroneous as a matter of law, unless
21 the sentencing court acts arbitrarily or
22 irrationally. The court’s opinion is, of
23 course, subject to appellate review, as is
24 any exercise of discretion.”). If an
25 appellate court vacates the Class A-I
26 sentence, it must substitute a first or
27 second felony offender sentence with a
28 maximum of 4 years in the case of a Class E
29 felony or remand for that purpose. See
30 Rivera, 5 N.Y.3d at 69 n.7 (citing Williams,
31 658 N.Y.S.2d at 265 (finding a Class A-I
32 sentence to be “an improvident exercise of
33 discretion” and ordering the resentencing of
34 the defendant “as a second felony offender”);
35 N.Y. Crim. Proc. Law § 470.20; see also
36 People v. LaSalle, 95 N.Y.2d 827, 829, 734
37 N.E.2d 749, 750 (2000) (memorandum decision);
38 Jennings, 822 N.Y.S.2d at 502 (finding that
39 “if the sentencing court had not found
40 defendant a persistent felony offender, the
41 maximum sentence it could have imposed would
42 have been an indeterminate term of two to
43 four years”).

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