constructive possession. His other two claims relate to his sentencing. He claims that the sentencing court inappropriately relied, at least in part, on the suppressed evidence seized from his apartment, and that his enhanced sentence under the persistent felony offender statute constituted an Apprendi violation.
1. The Insufficiency Claim
Brown claims that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the third degree. The Appellate Division, citing Brown's failure to object at trial and N.Y. CPL § 470.05(2), ruled that this claim was unpreserved for appellate review. Brown, 704 N.Y.S.2d at 84. It also rejected the claim on the merits, concluding that the evidence at trial "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." Id.
Federal courts generally may not review state court decisions that rest on an adequate and independent state procedural ground unless the petitioner can show both cause and prejudice for the default or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); see Lee v. Kemna, 534 U.S. 362, 376, 381, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question"). A petitioner may establish cause by showing that the basis for the claim was not reasonably available to his counsel or that some interference by officials made compliance impracticable. See McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's actual and substantial disadvantage. See Murray v. Carrier, 477 U.S. 478, 493-94, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). If a petitioner cannot show cause and prejudice, the procedural default may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. A fundamental miscarriage of justice requires a showing "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
Brown has failed to show any cause for his procedural default, and I do not find that a fundamental miscarriage of justice will result if I decline to entertain this claim. The claim is therefore rejected.
2. The Improper Jury Instruction Claim
Brown claims that the trial court improperly instructed the jury regarding the principle of constructive possession of a weapon. He claims that the court's instruction allowed the jury to convict him of criminal possession of a weapon in the third degree for constructively possessing Tucker's firearm even though Brown lacked sufficient "dominion or control" over Tucker to support such a conclusion. Although Brown conceded that he had failed to object to the instruction at trial, the Appellate Division found the claim to be "without merit," Brown, 704 N.Y.S.2d at 84, a disposition that poses no procedural default bar to habeas relief.
The adequacy of a state court's jury charge is a matter of state law and is not ordinarily grounds for habeas relief. United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). For a jury charge to give rise to such relief, a petitioner must carry a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). The petitioner must show "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial process that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). In making this determination, a court "must consider the challenged portion of the charge not in `artificial isolation,' but rather `in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp, 414 U.S. at 146-47, 94 S.Ct. 396).
Brown has not overcome this high threshold. The jury instruction given by the trial court was virtually identical to the model criminal charge for constructive possession of a firearm outlined in CJI2d (N.Y.) § 9.70 Constructive Possession. Although the charge included references to Brown's "partners in crime," when viewed in its entirety, it consistently reiterated that the jury had to find that Brown had sufficient control over a "partner" in order to subject Brown to criminal liability under the principle of constructive possession. I perceive no error in the charge as a whole. At any rate, the state court's rejection of Brown's challenge cannot be characterized as an unreasonable application of federal law.
3. The Challenge to the Use of Suppressed Evidence at Sentencing
Brown contends that the sentencing court violated his due process rights when it considered the evidence that was seized from the closet in Brown's apartment, evidence that was suppressed at trial. He claims that the judge directly attributed the evidence to Brown despite the absence of evidence that he possessed it. Since the judge considered this evidence during the sentencing, Brown claims his sentence was based in part on materially false information and was therefore unconstitutional. See United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
A sentencing judge exercises "wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed." Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In setting a defendant's sentence within the prescribed statutory range, a sentencing judge may properly consider hearsay statements, uncharged criminal activity, and even criminal activity underlying charges of which the defendant was acquitted. See United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987). Physical evidence seized in violation of the Fourth Amendment is by no means unreliable. To the contrary, the Second Circuit, contrasting such evidence with involuntary confessions, has declared it "inherently reliable." United States v. Tejada, 956 F.2d 1256, 1261 (2d Cir. 1992). A judge may consider such evidence if it was not gathered specifically for the purpose of influencing the sentencing judge, id. at 126263, as long as the defendant has an opportunity to respond to any misinformation. See United States v. Concepcion, 983 F.2d 369, 387-88 (2d Cir. 1992).
Here, there was ample reason, including Brown's own admission to disposing of the guns that were used in the gunfight, for the sentencing judge to consider the gun, ammunition and other contraband seized from the closet in Brown's apartment. Its relevance, and the weight to be given it, were ably disputed by defense counsel and the defendant himself at sentencing. Finally, I note that the sentencing court never directly attributed the contraband to Brown; instead, it merely noted that "a search of defendant's apartment on January 16, 1996, resulted in the recovery of [the contraband evidence]." Sent. Tr. II.B. at 10-11. There was nothing inappropriate, let alone unconstitutional, in taking that fact into consideration during the sentencing phase.
4. The Apprendi Claim
Brown claims that his enhanced sentence under New York's persistent felony offender statute is unconstitutional. He first raised this claim on appeal from his second sentencing. See App. Br. II at 36-37. Relying on Apprendi, Brown claimed that his enhanced sentence violated his Sixth Amendment rights because it was based in part on facts that had not been submitted to a jury and proved beyond a reasonable doubt. The Appellate Division dismissed this contention as without merit. Brown, 726 N.Y.S.2d at 280. That dismissal constitutes an "adjudication on the merits" within the meaning of 28 U.S.C. § 2254(d)(1). See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). I find that the Appellate Division's ruling was contrary to the rule that was clearly established by Apprendi. Alternatively, it was an unreasonable application of Apprendi to the persistent felony offender statute.
a. Constitutional Limits on Sentence Enhancements
In the past 17 years alone, a significant body of Supreme Court caselaw has developed on the subject of sentence enhancements based on facts found not by juries after trial, but rather by judges in the sentencing phase of a criminal case. Although those enhancements take different forms, the Supreme Court has addressed two: mandatory minimum sentences and enhanced maximum sentences. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (mandatory minimum five-year sentence for defendants who visibly possessed a firearm during the commission of certain enumerated offenses); Apprendi, 530 U.S. at 466, 120 S.Ct. 2348 (enhanced maximum sentence for defendant who committed crime with invidious discriminatory intent). Some sentence-enhancing statutes, including the one at issue here, involve both types of provisions. At the time Brown was convicted, he faced a maximum sentence of seven years. The discretionary persistent felony offender statute operated both to raise the maximum sentence he faced (to life) and to establish a minimum sentence (15 years) that far exceeded his unenhanced maximum sentence of seven years.
As a general matter, a mandatory minimum sentence, imposed based on a fact found only by the judge after a jury has already found the defendant guilty, is constitutionally permissible, at least where the minimum sentence is within the range of imprisonment the defendant faced when the jury found him guilty and the triggering fact is not one that has historically been treated as an offense element. See Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); McMillan, 477 U.S. at 79, 106 S.Ct. 2411. Statutes that enhance maximum sentences have not fared so well, as discussed below. The vulnerability of Brown's indeterminate sentence, therefore, lies not in the fact that the "front end" of 15 years was a legislatively-prescribed minimum sentence, but rather in the fact that it was greater than the unenhanced maximum sentence he faced at the time the jury found him guilty.
The Supreme Court held in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. The respondent contends that this "narrow holding of Apprendi" is inapplicable to the statute at issue here because it imposes enhanced sentences based on prior convictions and allows judges to make traditional sentencing determinations. Gov't Memo at 15 (emphasis added). This argument misapprehends the dramatic evolution of the Supreme Court's sentencing jurisprudence over the past decade. In fact, as discussed below, where a sentence-enhancing statute elevates the maximum authorized sentence, the rule in Apprendi is quite broad. It is the exception to the rule — for sentence-enhancements based on the "fact of a prior conviction" — that is narrow, far too narrow to embrace sentences under the discretionary persistent felony offender statute, at least where, as here, the minimum sentence imposed is higher than the maximum sentence authorized by the offense of conviction.
The exception to Apprendi's rule originated in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres was charged in an indictment with having been found in the United States after being deported, in violation of the illegal reentry statute, 18 U.S.C. § 1326. Almendarez-Torres, 523 U.S. at 266, 118 S.Ct. 1219. At the time of the offense, the maximum sentence was two years, but the statute further authorized a prison term of up to 20 years if the defendant had been deported following a conviction for an aggravated felony. Id. at 226, 118 S.Ct. 1219. Almendarez-Torres pled guilty to the charge, and admitted that he had been convicted of three aggravated felonies prior to being deported. Id. at 227, 118 S.Ct. 1219. However, at his sentencing, he claimed that he could not lawfully be sentenced to more than two years in prison because the indictment had not alleged that he had been convicted of an aggravated felony prior to his deportation. Because that fact elevated the maximum sentence he faced, Almendarez-Torres argued that it had to be considered an element of a greater offense, and the government's failure to charge him with that offense prohibited the enhanced sentence. Id.
In rejecting that argument and upholding an 85-month sentence, the Supreme Court held that the sentence-enhancing feature of the statute did not establish a separate crime, but rather was a mere sentencing factor that could permissibly be invoked by the sentencing judge. Id. at 228-35, 118 S.Ct. 1219. For several reasons, the Court rejected the argument that this construction of the statute created grave doubt about its constitutional validity. First, it observed that recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Id. at 243, 118 S.Ct. 1219. Thus, requiring a prior conviction that Congress intended to serve only as a sentencing factor to be treated as an element of the offense would constitute an "abrupt departure" from tradition. Id. at 244, 118 S.Ct. 1219. Second, the Court suggested that the permissive maximum enhancement in the illegal reentry statute, i.e., it authorized but did not require a sentence higher than the otherwise applicable two-year maximum, was less onerous to defendants than the mandatory minimum sentencing provision upheld in McMillan. Id. at 244-45, 118 S.Ct. 1219. Third, the Court noted that judges and parole boards have typically exercised discretion within broad statutory ranges, and thus the significantly broader sentencing range created by the recidivism enhancement did not create greater unfairness to defendants. Id. at 245, 118 S.Ct. 1219. Finally, the Court found that there was no reason to believe that Congress, by enacting the sentencing-enhancing feature at issue, sought to evade the Constitution by taking an element of a well-established offense and restructuring the crime to make that element a sentencing factor. Id. at 246, 118 S.Ct. 1219.
This multi-faceted reasoning in Almendarez-Torres was significant. While the fact that the illegal reentry sentence enhancement provision was based on recidivism was an important consideration, the Court's constitutional analysis was by no means limited to recidivism statutes, and its reasoning gave hope to statutes that enhanced maximum sentences based on factors other than the fact of prior convictions.
That hope was dimmed a year later by Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the question was whether the federal carjacking statute, 18 U.S.C. § 2119, defined a single offense, with sentenceenhancing provisions if the crime resulted in serious bodily injury or death, or rather stated distinct offenses of which those factors were elements. See 526 U.S. at 229, 119 S.Ct. 1215. The Court interpreted the statute to state distinct offenses because to do otherwise would leave the statute open to constitutional concern. Id. at 239-40, 119 S.Ct. 1215. It stated the principle animating its constitutional doubt as follows: "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6, 119 S.Ct. 1215. Thus, whereas Almendarez-Torres had cited several factors in upholding the sentence enhancement at issue in that case, Jones suggested that only one of those factors — recidivism — could save sentencing provisions that elevated a defendant's maximum sentence. Id. at 248-49, 119 S.Ct. 1215. After observing that the emphasis in Almendarez-Torres on that factor left "no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing," the Court in Jones advanced a narrow rationale for the distinction:
One basis for that possible constitutional
distinctiveness is not hard to see: unlike virtually
any other consideration used to enlarge the possible
penalty for an offense, and certainly unlike the
factor before us in this case, a prior conviction
must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and
jury trial guarantees.
Id. at 249, 119 S.Ct. 1215.
Still, Jones was resolved on statutory construction grounds, not constitutional ones, and its suggested narrowing of Almendarez-Torres did not influence the circuit courts. Jones's footnote six, quoted above, invited the argument that the enhanced maximum sentences prescribed by the sentencing provisions of the principal federal drug statutes, 21 U.S.C. § 841 and 960, were unconstitutional because they were triggered not by prior convictions but by drug quantities. The Second Circuit, among other circuits, rejected that argument. Concluding that footnote six in Jones was only dicta, and "opaque" dicta at that, the court reaffirmed the constitutionality of sentence enhancements based on quantities of drugs found only by judges and only by a preponderance of the evidence. United States of America v. Thomas, 204 F.3d 381, 383 (2d Cir. 2000) (per curiam), cert. granted, judgment vacated and remanded, 531 U.S. 1062, 121 S.Ct. 749, 148 L.Ed.2d 653, abrogation recognized by, 274 F.3d 655, 663 (2d Cir. 2001) (en bane).
That holding, and others like it, were short-lived because in the very next term Apprendi elevated Jones's dicta to a constitutional rule. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Apprendi considered a challenge to a New Jersey hate crime provision that enlarged the maximum sentence for certain offenses if the trial judge found, by a preponderance of the evidence, that the defendant had acted with racially discriminatory intent. Id. at 468-69, 120 S.Ct. 2348. The Court began its decision by examining the historical foundation of the Sixth Amendment's right to a jury trial and its own precedents on the subject of sentencing enhancements. Id. at 476-83, 120 S.Ct. 2348. In summing up this survey, the Court recognized that, judges have historically exercised broad discretion in sentencing defendants "within the range prescribed by statute," id. at 481, 120 S.Ct. 2348 (emphasis in original), but
[t]he historic link between verdict and judgment and
the consistent limitation on judges' discretion to
operate within the limits of the legal penalties
provided highlight the novelty of a legislative
scheme that removes the jury from the determination
of a fact that, if found, exposes the criminal
defendant to a penalty exceeding the maximum he would
receive if punished according to the facts reflected
in the jury verdict alone.
Id. at 482-83, 120 S.Ct. 2348 (emphasis in original).