The opinion of the court was delivered by: Joseph F. Bianco, District Judge
James Boytion petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction, following trial, of second-degree burglary and fifthdegree criminal possession of stolen property. Petitioner alleges the following: (1) that the State violated his constitutional rights to a jury trial and due process when it sentenced him as a discretionary persistent felony offender based on facts not submitted and found beyond a reasonable doubt by a jury; and (2) that the prosecutor's opening and closing statements were improper and deprived him of a fair trial. For the following reasons, the petition is denied.
The following facts, adduced from the instant petition and underlying record, are not in dispute for purposes of this petition.
On November 4, 1999, at approximately 12:00 p.m., petitioner unlawfully entered the home of Queens County resident, Ms. Nanka- Bruce, and stole a gold bracelet and money, including three two-dollar bills. (Aff. in Opp. to Amend. Pet. for Writ of Habeas Corpus ¶ 3 (hereinafter "Resp. Aff.")). Nancy Cullum, a live-in, home health aide for the Nanka-Bruce family, saw petitioner exiting the front door of the home and confronted him. (Id.) The petitioner ran away and Cullum called 911 and gave a detailed description of petitioner to the operator. (Id.) Less than fifteen minutes later, the police apprehended petitioner, who matched Cullum's description, about seven blocks away from the house. (Id.) Cullum identified the petitioner and the police found the gold bracelet and money, including the three two-dollar bills, inside petitioner's pants. (Id.)
B. Pre-Trial and Trial Procedures
Petitioner was charged in Queens Country with burglary in the second degree in violation of New York Penal Law § 140.25 and criminal possession of property in the fifth degree under New York Penal Law § 165.40. (Resp. Aff. ¶ 4.) Petitioner was tried before a jury and found guilty on both counts. (Id. at ¶ 5.)
On June 1, 2000, the State court conducted a sentencing hearing to determine whether petitioner (a) qualified under New York Penal Law § 70.04 as a second violent felony offender, and (b) qualified under New York Penal Law § 70.10(1) as a persistent felony offender. (Resp. Aff. ¶ 6.)
At the hearing, the State contended that petitioner was a second violent felony offender because petitioner, using the name "Anthony Fleming," was convicted on June 17, 1986 of attempted burglary in the second degree pursuant to New York Penal Law §§ 110.00, 140.25[b]. (Resp. Aff. ¶ 7.) In addition, the defense submitted a report regarding petitioner's legal history that admitted "all but one conviction [was] of a non-violent nature." (Sent. Tr. at 4.) Petitioner, however, took the position that, despite the report, he had no prior violent felony offense. (Id.) Though he admitted his true name is Anthony Fleming, petitioner denied that he was the same person who was convicted under New York County Indictment number 4848/85 for the 1986 violent felony. (Sent. Tr. at 3, 5, 9.) In response, the State provided a certified report of a fingerprint comparison conducted by an Identification Specialist with the New York State Division of Criminal Justice. (Id. at 6.) The report certified that the fingerprint impressions of the individual arrested in 1985 for the case that resulted in indictment number 4848/95 matched the fingerprints of petitioner. (Id. at 6.) The State also suggested that petitioner had an "M.O." and that, according to the indictment from the 1986 conviction, the petitioner entered a building, went through a woman's pocketbook, and took her wallet and that the crime was identical to seven of the petitioner's ten prior convictions that he was not contesting. (Id. at 7.) Based on the fingerprint comparison conducted by the Identification Specialist, the petitioner's admission that his real name is Anthony Fleming, and the defense report "implicitly conced[ing] the issue," the court adjudicated petitioner as a second violent felony offender. (Id. at 14-15.)
Next, the State demonstrated that petitioner qualified as a persistent felony offender under New York Penal Law § 70.10(1)(a) based on two prior felony convictions to which petitioner conceded. (Id. at 5-6.)*fn1 A persistent felony offender is defined under New York Penal Law § 70.10(1)(a) as a "[p]erson who stands convicted of a felony after having previously been convicted of two or more felonies." Under the statute, such a person may receive an enhanced sentence if the sentencing court "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." Id. § 70.10(2).
At sentencing, the State requested that the court treat petitioner as a persistent felony offender, and give him a sentence of fifteen years to life. (Sent. Tr. at 22.) The Assistant District Attorney argued that the court should impose a sentence under the persistent felony offender:
Mr. Boytion . . . stands . . . convicted of his eleventh crime. This is his fifth [f]elony conviction. He also has six [m]isdemeanor convictions. These crimes were all very similar . . . . I am asking the Court to consider the Defendant's extremely persistent record in which he receives jail sentence and immediately or quickly upon his release into society commits the same crime. I am asking [the court] to consider that as evidence that he is unlikely to be rehabilitated, and that at this point in time society deserves to be protected from a person who has no respect for the rights of the property of others. And I think . . . the fact that this crime was committed in a home rather than an office building . . . shows that far from learning from his previous mistakes, he has become more willing to place his interests above those of the people around him. His refusal to take responsibility for his behavior makes it unlikely that efforts to rehabilitate him would be successful.
Petitoner's counsel acknowledged petitioner's extensive criminal history. He argued, however, that the prior offenses were non-violent, larceny related offenses. (Id. at 23-25.) Petitioner's counsel argued that "on this particular case there was no weapon, there was no threat, there was not injury; and it was clear that if you agree with the jury's verdict that there was no intention on the part of [petitioner] to injure or hurt anyone." (Id. at 25.) Petitioner's attorney also asked the court to consider petitioner's children and siblings because "[a] sentence of fifteen years to life would destroy any hope that he has of seeing them again." (Id. at 27.)
The trial court sentenced petitioner as a persistent felony offender and gave him fifteen*fn2 years to life on the burglary count and one year in jail on the ...