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HERNANDEZ v. CONWAY

United States District Court, S.D. New York


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 permissible statutory range." Rosen, 96 N.Y.2d at 335, 729 N.Y.S.2d at 410 (citing People v. Farrar, 52 N.Y.2d 302, 305-306, 437 N.Y.S.2d 961, 962-963 [1981], a case in which the New York Court of Appeals made clear that sentencing is left to a judicial officer's discretion after a careful consideration has been made of all facts available at the time of sentencing).

  Hernandez sought leave to appeal from the trial court's decision, on his motion to vacate his conviction and sentence, to the Appellate Division. In doing so, Hernandez explained that under Apprendi and Ring, New York's discretionary persistent felony offender sentencing procedure was unconstitutional because it permitted factual determinations to be made by a judge, rather than a jury, using a standard of proof that was less than beyond a reasonable doubt. Hernandez's application for leave to appeal to the Appellate Division was denied by a justice of that court. The instant application for a writ of habeas corpus followed.

  III. DISCUSSION

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). "A decision is `contrary to' clearly established federal law as determined by the Supreme Court if `the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts. . . . A decision is an `unreasonable application' of clearly established Supreme Court law if a state court `identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case.'" Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at 413, 120 S. Ct. at 1523).

  In the case at bar, the ground upon which Hernandez seeks a writ of habeas corpus was raised by him in the state courts. The trial court adjudicated the matter on the merits and leave to appeal from that court's determination to the Appellate Division was denied. Therefore, Hernandez's application for the writ may be granted only if the decision reached by the trial court was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court or was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

  For the reasons which follow, the Court finds that the determination reached by the trial court on the federal claim raised by Hernandez was in tension with clearly established federal law as set forth by the Supreme Court and, furthermore, was unreasonable. Under Apprendi, any fact other than "the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-2363. Under New York law, a person who has been convicted for a felony offense and who has garnered at least two prior felony convictions is eligible for sentencing as a persistent felony offender at the discretion of the sentencing court. The procedure the sentencing court is required to employ before imposing sentence upon a discretionary persistent felony offender dictates that a hearing be convened at which the fact of the existence of the prior multiple felony convictions must be established by the prosecution beyond a reasonable doubt. See CPL § 400.20. However, notwithstanding the fact that the sentencing court finds, beyond a reasonable doubt, that the person to be sentenced has acquired two or more prior felony convictions, that finding, standing alone, does not permit the court to increase the maximum sentence to which the person to be sentenced would otherwise be exposed. The sentencing court must make additional findings about the history and character of the person to be sentenced and the nature and circumstances of the person's criminal conduct. If, based upon those factual findings, the court is of the opinion that the public interest would best be served by extending the period of incarceration of the person to be sentenced beyond the statutory maximum that would otherwise be applicable and, furthermore, that upon completing that sentence, the person should be subjected to lifetime supervision, then and only then may the court impose an enhanced sentence. The sentencing court's factual findings respecting the background and criminal history of the person to be sentenced, which inform its opinion about the need to impose an enhanced sentence, are made under the preponderance of the evidence standard of proof. The respondent, relying, as the trial court did, upon the New York Court of Appeals holding in Rosen, maintains that a sentencing court that engages in the exercise that comprises the second step in the two-step discretionary persistent felony offender sentencing procedure does not engage in any fact-finding, since the relevant statutory language provides only that the sentencing court must be "of the opinion" that an enhanced sentence would be appropriate. According to the respondent, since the "determination" reached by a sentencing court in accordance with PL § 70.10(2) "is not a factual finding within the meaning of Apprendi," because the sentencing court is merely directed to set forth "the reasons for [its] opinion," the procedure followed by the trial court in imposing the enhanced sentence upon Hernandez was in consonance with federal law as determined by the Supreme Court.

  The Court finds that the respondent's argument is not supported by the holdings of New York appellate courts. Those courts note that at the second step of the two-step discretionary persistent felony offender sentencing procedure, a sentencing court makes findings of fact. See e.g., People v. Mason, 277 A.D.2d 170, 717 N.Y.S.2d 130, 131 (App.Div. 1st Dep't 2000) (explaining that the difference between the enhanced sentence imposed upon a persistent violent felony offender, which is based solely on the fact of prior convictions and the enhanced sentence imposed on a persistent felony offender, is the requirement that sentencing court make additional findings [emphasis added]); People v. Johnson, 275 A.D.2d 949, 713 N.Y.S.2d 410 (App.Div. 4th Dep't 2000) (remanding case for resentencing for failure of the trial court to set forth reasons for its finding that the defendant should receive an enhanced sentence as a persistent felony offender); People v. Brown, 268 A.D.2d 593, 704 N.Y.S.2d 83 (App Div. 2d Dep't 2000) (remanding case for resentencing for failure of the trial court to set forth its reasons for finding that the defendant should receive an enhanced sentence as a persistent felony offender); People v. Garcia, 267 A.D.2d 247, 700 N.Y.S.2d 44 (App.Div. 2d Dep't 1999) (remanding case to the trial court so that it might set forth the reasons for its finding that the defendant should receive an enhanced sentence as a persistent felony offender); and People v. Smith, 232 A.D.2d 586, 649 N.Y.S.2d 444 (App.Div. 2d Dep't 1996) (remanding case to the trial court so that it might explain in detail the reasons for its finding that the defendant should be sentenced as a persistent felony offender). The Second Circuit Court of Appeals has also recognized that at the second step of New York's two-step persistent felony offender sentencing procedure, a sentencing court must make factual findings about the criminal defendant's background and character before it may impose an enhanced sentence upon the defendant. See Griffin v. Mann, 156 F.3d 288, 290-291 (2d Cir. 1998).

  In Rosen, upon which the trial court relied in rejecting Hernandez's challenge to the judgment of conviction and the enhanced sentence that was imposed upon him, the New York Court of Appeals remarked that at the second step of the two-step persistent felony offender sentencing procedure, a sentencing court simply fulfills "its traditional role — giving due consideration to agreed upon factors — in determining an appropriate sentence within the permissible statutory range." Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410. However, in reaching this conclusion, the New York Court of Appeals seems to ignore Apprendi's discussion of "sentencing factors" and its admonition that in the enhanced sentencing arena one must look beyond form and must assess the effect that a court's action will have on the punishment that a criminal defendant will receive following a jury's guilty verdict. Under the New York procedure for enhancing a persistent felony offender's sentence, the finding made beyond a reasonable doubt by a sentencing court, that a criminal defendant has previously acquired two or more felony convictions, without more, does not have any effect upon the sentence that the defendant will receive for his or her newest felony conviction. Such a finding only makes the criminal defendant eligible for an enhanced sentence. It is only a finding of fact(s), based upon a review of the defendant's background and criminal history, that permits the sentencing court to opine that imposition of an enhanced sentence is warranted. The view espoused by the New York Court of Appeals, that these court-made findings are part of a sentencing court's "traditional role," was rejected by the Supreme Court, which characterized that view of a sentencing court's role as novel. The Supreme Court explained that "[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." Apprendi, 530 U.S. at 482, 120 S. Ct. at 2359.

  The Supreme Court has also explained that "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, the fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Ring v. Arizona, 536 U.S. at 585-586, 122 S. Ct. at 2430. "To say, as the New York Court of Appeals has in Rosen, that those findings [at the second step of the two-step persistent felony offender sentencing procedure] are analogous to `traditional' sentencing considerations elevates form over substance, for the enhanced sentence may not be imposed without them." Brown v. Greiner, 258 F. Supp.2d 68, 91 (E.D.N.Y. 2003). Based on the above, the Court finds that the constitutional claim made by Hernandez was adjudicated by the trial court in a manner that was contrary to clearly established Supreme Court precedent. Furthermore, the facts pertinent to Hernandez's receipt of an enhanced sentence are not materially distinguishable from the facts in Apprendi. In both cases, the defendant received a sentence that was greater than the sentence he would have faced simply by being found guilty by a jury or through a plea of guilty. Neither defendant could have received an enhanced sentence without court-made findings concerning a fact other than the existence of a prior conviction. The Court finds further that, to the extent that the trial court, when it adjudicated Hernandez's constitutional claim, relied upon Rosen and disregarded the principles set forth by the Supreme Court in Apprendi and in Ring, the trial court acted unreasonably.

  IV. RECOMMENDATION

  For the reasons set forth above, Hernandez's application for a writ of habeas corpus should be granted and the trial court should be directed to sentence him anew.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

  Respectfully submitted.

20050413

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