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HERNANDEZ v. CONWAY

April 13, 2005.

GREGORIO HERNANDEZ, Petitioner,
v.
JAMES T. CONWAY, ACTING SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE SIDNEY H. STEIN, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  The petitioner, Gregorio Hernandez ("Hernandez"), has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hernandez maintains that he is entitled to the writ because the sentence imposed upon him in the New York State Supreme Court, following a conviction for first degree reckless endangerment and third degree criminal possession of stolen property, was enhanced after the trial court determined to exercise its discretion and to classify and sentence him as a persistent felony offender. Hernandez contends that the procedure through which an enhanced sentence was imposed upon him violated rights secured to him by the Sixth and Fourteenth Amendments to the Constitution because, among other things, the procedure allowed a judge to find by a preponderance of the evidence that Hernandez's history and character, as well as the nature and circumstances of his criminally culpable conduct, warranted the imposition of the enhanced sentence. For his part, the respondent contends that the claim raised by Hernandez in this court was previously adjudicated on the merits in the state courts and that the determination reached to reject Hernandez's claim was not contrary to and did not involve an unreasonable application of clearly established federal law. Therefore, according to the respondent, Hernandez is not entitled to the relief he seeks through his application for a writ of habeas corpus.

  II. BACKGROUND

  A Bronx County grand jury returned an indictment against Hernandez charging him with attempted murder in the first degree, robbery in the first degree, robbery in the second degree, reckless endangerment in the first degree and criminal possession of stolen property in the third degree. These charges arose out of an incident occurring in July 1996, when Hernandez, using a firearm, stole an automobile and, thereafter, led police on a high speed chase along highways connecting Bronx County and Westchester County. Hernandez elected to proceed to trial before a petit jury which, as noted above, returned guilty verdicts against him for two Class D felonies, first degree reckless endangerment and third degree criminal possession of stolen property. Hernandez was acquitted of the remaining charges in the indictment.

  Following his conviction and prior to his sentencing, the prosecution made an application that the trial court exercise its discretion to classify Hernandez a persistent felony offender, as provided for in New York Penal Law ("PL") § 70.10, and to sentence him accordingly under New York Criminal Procedure Law ("CPL") § 400.20. PL § 70.10 explains that "[a] persistent felony offender is a person, other than a persistent violent felony offender . . . who stands convicted of a felony after having previously been convicted of two or more felonies. . . ." PL § 70.10(1)(a). At the time Hernandez was sentenced in connection with the underlying criminal case, he had garnered five felony convictions previously and had also been convicted for misdemeanor offenses. PL § 70.10 also advises that:
When the court has found, pursuant to the provisions of the Criminal Procedure Law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by §§ 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a Class A-I felony. In such event, the reasons for the court's opinion shall be set forth in the record.
PL § 70.10(2).

  CPL § 400.20 sets forth a two-step procedural scheme for a sentencing court to follow in determining whether a criminal defendant should be sentenced as a persistent felony offender. Among other things, that statute provides for a hearing at which the court must find, beyond a reasonable doubt, based upon proof presented by the prosecution, that a criminal defendant has attained the requisite number of prior felony convictions (at least two). Once the court makes such a finding, before it may impose an enhanced sentence upon a criminal defendant, it must be "of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest." CPL § 400.20(1). At the hearing, "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof [to be applied by the court] with respect to such matter shall be a preponderance of the evidence." CPL § 400.20(5).

  In Hernandez's case, at the conclusion of the hearing required by the above-noted CPL provision, the trial court determined to classify Hernandez a persistent felony offender and to sentence him accordingly. The court explained as follows:
[Hernandez's] prior history where he had stolen cars, stolen cars at gunpoint, physically assaulted, convicted of assault of a police officer, all these show that Mr. Hernandez is that type of person that Section 70.10 of the Penal Law considers to be — who should be sentenced under that section.
I am going to sentence him under 70.10 because I find that to protect the public, because of his prior history, because of the type of crimes he has engaged in, because he is a danger to the public, as shown by the last conviction and his prior convictions that it would be in the public interest that I sentence him to a sentence of — the minimum of 15 years state prison, the maximum of life.
  Thus, although each of the Class D felonies for which Hernandez was convicted by the jury exposed him to a sentence of 7 years incarceration, upon the trial court's exercise of the discretion provided to it, Hernandez was adjudicated a persistent felony offender and given an enhanced sentence of 15 years to life imprisonment.

  Hernandez appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. In that court, Hernandez argued that his conviction should be reversed because the trial court's supplemental instruction to the jury constructively amended the reckless endangerment count of the indictment and thereby allowed him to be convicted based on conduct that occurred in Westchester County. Hernandez made citation to the Fourteenth Amendment to the United States Constitution and to Article I, Section 6 of the New York Constitution in support of that argument. Hernandez also argued that the trial court should not have sentenced him, in the exercise of its discretion, as a persistent felony offender because his personal history and criminal conduct did not merit extended incarceration and lifetime supervision.

  The Appellate Division affirmed Hernandez's conviction. In its most pertinent part, the decision rendered by the Appellate Division explains that the trial court, in sentencing Hernandez as a persistent felony offender, exercised its discretion properly. That court found Hernandez's claim, that the procedural requirements set forth at CPL § 400.20 were not followed, was a matter not preserved for appellate review; furthermore, the Appellate Division declined to review the claim in the interest of justice. However, the court noted that, if it were to review the claim, it would find that the trial court complied sufficiently with the statutory requirements. See People v. Hernandez, 273 A.D.2d 176, 710 N.Y.S.2d 247 (App.Div. 1st Dep't 2000).

  Thereafter, Hernandez made an application for leave to appeal to the New York Court of Appeals. That application was denied by a judge of that court. See People v. Hernandez, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000). Approximately one month later, Hernandez petitioned that judge for reconsideration of the decision denying Hernandez leave to appeal to the New York Court of Appeals. In doing so, Hernandez made citation to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Hernandez contended that his sentence as a discretionary persistent felony offender was unconstitutional, since it rested upon facts, other than the fact of a prior conviction, that were found by the sentencing court, by a preponderance of the evidence, and were not found by a jury beyond a reasonable doubt. Leave to appeal to the New York Court of Appeals was again denied to Hernandez. See People v. Hernandez, 95 N.Y.2d 935, 721 N.Y.S.2d 611 (2000). Hernandez returned to the trial court with a motion to vacate the judgment of conviction and to set aside his sentence pursuant to CPL §§ 440.10(1)(h) and 440.20(1). Hernandez argued to the trial court that the enhanced sentence imposed upon him ran afoul of Apprendi because the enhanced sentence was based on a finding other than a finding that Hernandez had previously been convicted for a criminal offense. In a reply submitted after the prosecution responded to the motion, Hernandez made citation to Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), in further support of his contention that his constitutional rights were violated by the procedure through which the court enhanced his sentence.

  The trial court denied Hernandez the relief he sought. Without making any reference to Ring, the court explained that Apprendi was not applicable to the facts of Hernandez's case and, therefore, the court was not bound to follow it. The court explained further that it was bound by the decision of the New York Court of Appeals in People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 (2001).

  In Rosen, the New York Court of Appeals considered the continued viability of New York's statutory discretionary persistent felony offender sentence enhancement provisions (see PL § 70.10 and CPL § 400.20[(5)]), in light of the Supreme Court's holding in Apprendi. The New York Court of Appeals concluded that New York's discretionary persistent felony offender enhanced sentencing procedure does not run afoul of Apprendi because, under the persistent felony offender sentencing procedure, a court must first conclude that a criminal defendant has previously been convicted for two or more felony offenses, for which a sentence in excess of one year has been imposed, before it may sentence the defendant as a persistent felony offender. Only after it has been determined that the defendant has garnered two prior felony convictions may the sentencing court assess the defendant's history and character and the nature and circumstances of the defendant's criminal conduct in determining whether it is of the opinion that an enhanced sentence is warranted. See CPL § 400.20(9). According to the New York Court of Appeals, the assessment by a sentencing court of a criminal defendant's background and the nature of the defendant's criminal conduct is an exercise that requires a sentencing court to fulfill its traditional role of "giving due consideration to agreed upon factors in determining an appropriate sentence within the ...


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