The opinion of the court was delivered by: John Gleeson, District Judge
Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.
A. Portalatin's Conviction and Sentence Pursuant to New York's Persistent Felony Offender Statute
The evidence at trial established that on July 12, 2002, Portalatin carjacked Stephen Francis at gunpoint and forced him to drive to an empty street in the Williamsburg section of Brooklyn. After a struggle, Francis escaped and Portalatin drove away in the car. Portalatin testified that he and Francis had engaged in consensual sexual conduct, for which Portalatin understood he would be paid. He further testified that when Francis did not pay him, he became upset and sped away in Francis's car. Portalatin denied having a gun or robbing Francis. The jury rejected his testimony, finding Portalatin guilty of robbery in the first degree and kidnapping in the second degree, both class B felonies.
The prosecutor requested that Portalatin be sentenced as a persistent felony offender. New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10, allows -- but does not require -- a sentencing court to impose a class A-I felony sentence (rather than the sentence otherwise available for the offense of conviction) when the court (1) has found "that a person is a persistent felony offender," and (2) "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." N.Y. Penal Law § 70.10(2). The permissive nature of the enhanced penalty accounts for the fact that § 70.10 is known as the "discretionary" persistent felony offender provision.*fn1
As discussed in more detail below, before an enhanced sentence may be imposed pursuant to § 70.10, the prosecution must first prove beyond a reasonable doubt that the defendant is a persistent felony offender, that is, that he or she has previously been convicted of two or more felonies. N.Y. Crim. Proc. Law § 400.20(5).*fn2 If the sentencing court finds that the defendant is a persistent felony offender, it "must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted," § 400.20(9), i.e., whether the history and character of the defendant and the nature and circumstances of his or her criminal conduct indicate that extended incarceration of the defendant will best serve the public interest. The prosecutor must prove the facts that pertain to the history and character of the defendant and the nature and circumstances of his or her criminal conduct by a preponderance of the evidence. Id. Only after making the required factual findings on the record may a court impose an enhanced sentence pursuant to § 70.10(2). Id. If a court terminates a persistent felony offender hearing without making the "necessary findings," the defendant may not be sentenced as a persistent felony offender. § 400.20(10).
Portalatin's previous felonies were (1) a 1995 conviction for attempted burglary in the second degree, and (2) a 1998 conviction for attempted criminal sale of a controlled substance in the fifth degree. At the sentencing hearing on April 28, 2003, Portalatin did not challenge the existence or the constitutionality of these convictions, and the court found that he "appear[ed] to be eligible for discretionary persistent felony offender adjudication" on that basis.
The court then proceeded to determine whether Portalatin's history and character and the nature and circumstances of his criminal conduct warranted an enhanced sentence and lifetime supervision. It considered a report by the Osborne Association (submitted by defense counsel in mitigation of sentence), the probation report, a letter submitted by the district attorney, and the evidence at trial. S.Tr. 19. The court made the following findings on the record: (1) the crime must have been a "truly terrifying experience" for the victim; (2) there was a gun involved; (3) Portalatin's history did not support his claims of innocence or excuse his conduct; (4) beginning in 1989, Portalatin failed to take advantage of drug treatment opportunities; (5) Portalatin committed crimes immediately upon release from prison after prior convictions; (6) Portalatin was inclined to "prey upon others;" (7) Portalatin could not control his problems; (8) Portalatin did not take advantage of employment opportunities and family support; and (9) Portalatin made efforts to avoid the consequences of his actions. S.Tr. 19-22.
Based on those findings, the court elected to sentence Portalatin as a persistent felony offender. Portalatin received a sentence of 18 years to life in prison on each of the two counts of conviction, to run concurrently. S.Tr. 22.
Portalatin appealed his conviction, arguing that (1) the prosecutor committed misconduct during the trial; (2) his sentence violated the jury trial principle set forth in Apprendi v. New Jersey, 530 U.S. 446 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and Blakely v. Washington, 542 U.S. 296 (2004); and (3) the sentencing judge did not follow the procedures required by § 400.20. On May 16, 2005, the Appellate Division affirmed Portalatin's judgment of conviction. People v. Portalatin, 795 N.Y.S.2d 334 (2d Dep't 2005). The court found that the prosecutorial misconduct claim was unpreserved for appellate review and without merit, since "the prosecutor's questions and remarks were entirely within the bounds of fair comment." Id. at 334. The court also rejected both claims related to the sentence as "unpreserved for appellate review and, in any event, without merit." Id. On July 6, 2005, the New York Court of Appeals denied Portalatin leave to appeal from the decision of the Appellate Division. People v. Portalatin, 3 N.Y.3d 793 (2005) (Ciparick, J.). Portalatin did not file a petition for a writ of certiorari with the United States Supreme Court .
Portalatin now seeks a writ of habeas corpus on the ground that the state violated his Sixth Amendment right to a jury trial, guaranteed to Portalatin by the Fourteenth Amendment, when it sentenced him as a persistent felony offender pursuant to § 70.10.
The Appellate Division rejected Portalatin's claim as both unpreserved for appellate review and lacking in merit. 795 N.Y.S.2d at 334. The use of the conjunctive in the habeas setting is critical. Had the court used "or" instead, its ruling would have to be considered solely a decision on the merits. See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000). But the state court holding here qualifies as a conclusion that the claim was procedurally defaulted, which potentially has special consequences on habeas review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision); Fama, 535 F.3d at 810 n.4.
As a general matter, the Supreme Court of the United States will not consider an issue of federal law on review of a state court judgment if that judgment also rests on an adequate and independent state ground. This doctrine, which can deprive the Supreme Court of jurisdiction to review a state court judgment under 28 U.S.C. § 1257, has been imported into the habeas context as a matter of comity to limit the availability of habeas relief where the federal claim has been procedurally defaulted in state court. See Coleman v. Thompson, 501 U.S. 722, 730-32 (1991). Because a procedural default under state law constitutes an adequate and independent state ground for deciding the claim against the petitioner, federalism concerns permit a federal habeas court to review a procedurally barred claim on the merits only if the petitioner shows cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that a failure to consider the claim will result in a fundamental miscarriage of justice. Id. at 750.
However, procedural default is not a jurisdictional matter. As mentioned, the concept is based on considerations of comity. As a result, it can be waived by the state. See Mask v. McGinnis, 233 F.3d 132, 137 (2d Cir. 2000). Though habeas courts are authorized to raise the issue sua sponte, they are not required to do so. See Trest v. Cain, 522 U.S. 87, 89 (1997). Moreover, unlike a waiver of the exhaustion requirement, which after the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") must be express, see 28 U.S.C. § 2254(b)(3), a procedural default may be waived by the state's mere failure to assert it. See, e.g., Mask, 233 F.3d at 137.
Though respondent has included the Appellate Division's reliance on procedural grounds in his description of the procedural history of the case, he has opposed the petition solely on the merits of the Sixth Amendment claim. He may well have concluded that comity and federalism are better served by a quick resolution of whether § 70.10 continues to survive Sixth Amendment scrutiny (as applied through the Fourteenth Amendment) in light of recent Supreme Court precedent. See Washington v. James, 996 F.2d 1442, 1448-50 (2d Cir. 1993) (identifying principles of comity and federalism as grounds for courts to decline to address procedural default sua sponte). Whatever accounts for respondent's decision not to assert a procedural default defense, I see no reason not to grant the parties' joint request that I resolve the merits of their Sixth Amendment dispute.
B. The Standard of Review
AEDPA narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, federal habeas relief may be granted only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).*fn4
The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" federal law "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." Williams, 529 U.S. at 413. 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." Id. "Under the latter standard, 'a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'" Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
C. Portalatin's Sixth Amendment Claim
Portalatin argues that the persistent felony offender statute at issue here violates the Sixth Amendment principle that any fact (other than the fact of a prior conviction) that increases the penalty for a crime must either be admitted by the defendant or proved to a jury beyond a reasonable doubt. Portalatin was convicted of kidnapping in the second degree and robbery in the first degree, both class B felonies. See N.Y. Penal Law §§ 160.15(4); 135.20. The maximum sentence he faced on each of those counts was 25 years. See Id. § 70.00(2) ("For a class B felony, the term shall be fixed by the court, and shall not exceed twenty-five years.") (emphasis added). The minimum sentence Portalatin faced would also have been fixed by the court, and would not have been "less than one year nor more than one-third of the maximum term imposed." Id. § 70.00(3)(b).*fn5 The application of §70.10 increased the maximum penalty for Portalatin's crime to life, and Portalatin was sentenced on each count to an indeterminate prison term that could reach that maximum. As discussed below, that sentence was based on facts found by the sentencing judge during the sentencing proceeding, that is, facts (other than the fact of Portalatin's prior convictions) that were neither admitted by him nor presented to the jury and proved beyond a reasonable doubt.
1. The Relevant Supreme Court Authority
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. The full impact of that holding was not immediately apparent for two related reasons. One was the fact that Charles Apprendi's sentence of 12 years, imposed pursuant to New Jersey's hate crime law, exceeded the ten-year maximum sentence set forth in the penal statute prohibiting second degree possession of a firearm for an unlawful purpose, the law he pled guilty to violating. Id. at 469-71. The second was the language used by the Supreme Court in setting aside the sentence, which suggested that sentence increases based on facts found by judges do not violate the Sixth Amendment jury-trial right so long as the final sentence is within the maximum set by the statute the defendant violated:
We should be clear that nothing in this history [of the common law of sentencing] suggests that it is impermissible for judges to exercise discretion -- taking into consideration various facts relating both to offense and offender -- in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.
Apprendi, 530 U.S. at 481.
In specific reliance on that language and on the fact that Apprendi's sentence exceeded the maximum sentence set forth in the criminal statute he violated, the Second Circuit rejected Sixth Amendment challenges to upward adjustments of federal Guidelines ranges based on facts found not by juries, but by judges. See United States v. Garcia, 240 F.3d 180, 182-84 (2d Cir. 2001); see also United States v. Norris, 281 F.3d 357, 360-61 (2d Cir. 2002) ("Apprendi itself governs if a factual determination results in a sentence that exceeds a statutory maximum . . . . [W]e do not believe [the Guidelines] ranges are statutory maximums for purposes of applying the rule of Apprendi."). Every other court of appeals to address the issue agreed with that reading and application of Apprendi. See Garcia, 240 F.3d at 184 (citing cases).
But Blakely v. Washington, 542 U.S. 296 (2004), made it clear that they were all wrong. Blakely established that the "statutory maximum" for purposes of the Sixth Amendment's jury trial right is not always the maximum set forth by the penal statute violated by the defendant. In Blakely's case, that maximum was ten years (for second degree kidnapping) and Blakely had been sentenced to only 90 months. 542 U.S. at 299-300. Still, the Supreme Court held that the sentence was unconstitutional, because a sentence higher than the 49-53 month range provided by Washington's sentencing guidelines was authorized only upon the sentencing court's finding of an aggravating circumstance (in Blakely's case, "deliberate cruelty"). Id. at 303. In language that foretold doom for the federal Guidelines, the Court wrote:
Our precedents make clear . . . that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Furthermore, Apprendi and Blakely make it clear that impermissible "factfindings" for Sixth Amendment purposes include generalized assessments of offenders as well as more specific factual determinations about offenses. See Blakely, 542 U.S. at 305 ("Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring ), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence."). That is because any finding 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 483, violates the Sixth Amendment.
2. A Description of § 70.10
Unlike sentence enhancements based solely on prior convictions, such as the persistent violent felony offender provision in § 70.08, before a sentencing court may enhance a defendant's sentence under § 70.10, it must make two particularized findings about the defendant. The first is that the defendant is a "persistent felony offender," § 70.10(2), that is, a person who has been convicted of two or more felonies that were punished by a term of imprisonment greater than one year. § 70.10(1)(b). Any felony conviction, federal or state, counts. This aspect of the statute falls squarely within the narrow safe harbor for recidivism-based sentencing enhancements established by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and enshrined in Apprendi's holding.
However, § 70.10 further requires that the court be "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." § 70.10(2). This second finding must be announced formally and "set forth in the record." Id. According to the statute, only after making both findings is the court authorized, "in lieu of imposing the sentence of imprisonment" otherwise authorized, to impose the sentence of imprisonment authorized for a class A-I felony. Id.*fn7
Sentencing under the persistent felony offender provision is initiated by the court when information available to it indicates that the defendant has prior convictions that satisfy the first step of the inquiry and the court is of the opinion that the enhanced sentence "may be warranted." § 400.20(2). The court then issues an order, with at least 20 days' notice to the defendant, directing a hearing to determine whether the defendant should receive the enhanced sentence. §§ 400.20(3)-(4). The order must include a statement setting forth the defendant's prior convictions and the "factors in the defendant's background and prior criminal conduct which the court deems relevant for the purposes of sentencing." §§ 400.20(3)(a)-(b).
After receiving notice of the facts upon which the court is considering enhancing the sentence, the defendant can introduce evidence at a hearing contesting the prior convictions and the other allegations in the notice. §§ 400.20(6)-(7). The burden of proof is on the prosecutor, but both the applicable standard and the method of proof depends on what is challenged. § 400.20(5). The government must prove the prior convictions beyond a reasonable doubt with evidence that would be admissible at trial. Id. However, "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct" need only be proved by a preponderance of the evidence, and the rules of evidence do not apply to that step of the hearing. Id.
Section 400.20(9) makes clear that the second step of the adjudication must involve judicial findings of fact:
At the conclusion of the hearing the court must make a finding as to whether or not the defendant is a persistent felony offender and, upon a finding that he is such, must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted. If the court both finds that the defendant is a persistent felony offender and is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant [as though he were convicted of a class A-1 felony].
Id. (emphasis added).The court can, in its sole discretion and at any time, stop the hearing "without making any finding." § 400.20(10). However, "the defendant may not be sentenced as a persistent felony offender" unless the ...