United States District Court, S.D. New York
July 6, 2005.
GREGORIO HERNANDEZ, Petitioner,
JAMES T. CONWAY, JR., Acting Superintendent, Attica Correctional Facility; and ELIOT L. SPITZER, New York State Attorney General, Respondents.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
MEMORANDUM OPINION & ORDER
Gregorio Hernandez petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asserting that his state court
sentence, imposed pursuant to New York State's persistent felony
offender statute, N.Y. Penal Law § 70.10, was "contrary to, or
involved an unreasonable application of, clearly established
Federal law" as set forth in Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See
28 U.S.C. § 2254(d) (1996).
On April 13, 2005, Magistrate Judge Kevin Nathaniel Fox issued
a Report and Recommendation in which he recommended that this
Court grant the petition. Respondents then served and filed their
Objections to the Magistrate's Report and Recommendation. On June
3, 2005, almost eight weeks after the magistrate had issued his
Report and Recommendation, the United States Court of Appeals for
the Second Circuit decided Brown v. Greiner, 409 F.3d 523 (2d
Cir. 2005). In that case, the court considered Apprendi's
effect upon New York's persistent felony offender statute and
determined that "the New York courts did not apply Apprendi
unreasonably in concluding that the sentencing judge may make the determinations upon which
persistent offender felony sentencing turns." Brown,
409 F.3d at 531.
The following month Hernandez served and filed Petitioner's Responses to
Respondent's Objections to the Magistrate Judge's Report and Recommendation.
Upon de novo review of the Report and Recommendation and upon consideration
of the submissions described above, as well as the case law decided
subsequent to the issuance of the Report and Recommendation, this Court
rejects the Report and Recommendation and dismisses Hernandez's section
The Court assumes familiarity with facts as set forth in Judge
Fox's Report and Recommendation. Petitioner urges two reasons why
this Court should adopt the Report and Recommendation: first,
that in affirming his sentence, the state court reached a result
that was contrary to, or an unreasonable application of,
Apprendi as explicated in the subsequent case of Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002);
and second, that Brown does not control this case because
Brown did not address Ring and its effect upon New York's
persistent felony offender sentencing statute, but rather analyzed only
Apprendi's effect on the state sentencing statute.
The Second Circuit has written that the Supreme Court has
"provided inconsistent guidance on the precise time to which a
federal court should look to assess what was `clearly established
Federal law, as determined by the Supreme Court.'" Brown,
409 F.3d at 534, n. 3 (quoting Williams v. Taylor, 529 U.S. 362,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The court must look to
the state of federal law either "as of the time of the relevant state-court
decision" or "at the time [petitioner's] state-court conviction became final." Brown, 409 F.3d at 534, n. 3 (quoting Williams,
529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389) (internal quotation
Even employing the measure more generous to petitioner in
this case, the time Hernandez's state court conviction became
final each of Hernandez's assertions fails because his sentence
became final in 2001, more than one year before the U.S. Supreme
Court decided Ring in June of 2002. See People v.
Hernandez, 95 N.Y.2d 935 (2000) (denying leave to appeal upon
reconsideration in November of 2000). Therefore, the "universe of
clearly established federal law" applicable to this petition does
not include Ring, but rather, just as in Brown, is "limited
to Apprendi and the cases that preceded it." Brown,
409 F.3d at 534, n. 3.
The court in Brown held that "the state courts did not unreasonably apply
Apprendi and the cases that preceded it" in determining that New York's
persistent felony offender statute was constitutional in the face of the
same challenge to that statute that is made here, "and therefore . . .
Petitioners [were] not entitled to habeas relief." Id. at 534. Therefore,
just as in Brown, the petitioner is not entitled to habeas relief.
Accordingly, IT IS HEREBY ORDERED THAT the Report and
Recommendation dated April 13, 2005 is rejected on the basis of
the case law decided subsequent to April 13, and the petition for
a writ of habeas corpus is dismissed. In addition, because
Hernandez has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not
issue. 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div.
of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United
States, 185 F.3d 48, 51-53 (2d Cir. 1997). Finally, pursuant to
28 U.S.C. 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith.
See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917,
8 L.Ed.2d 21 (1962).
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