The opinion of the court was delivered by: John G. Koeltl, District Judge
The petitioner William Washington seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to set aside his conviction and sentence in the New York State Supreme Court, New York County, for grand larceny in the fourth degree, a violation of N.Y. Penal Law § 155.30(5), for taking a person's wallet. The petitioner was sentenced pursuant to New York's persistent felony offender statute, N.Y. Penal Law § 70.10, to an indeterminate prison term of twenty years to life, but the term was reduced by the Appellate Division to fifteen years to life. The petitioner is currently serving his term of imprisonment at the Five Points Correctional Facility in Romulus, New York.
The petitioner raises two arguments: (i) that he was deprived of his Sixth Amendment right to counsel because the trial court prohibited defense counsel from arguing in summation that the People's evidence supported the defense theory that the petitioner found the wallet he was charged with stealing, and
(ii) that his sentence under the persistent felony offender statute was unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny.
Because the petitioner's sentence violated his constitutional right to a jury trial, the petition is granted.
The evidence at trial showed that the petitioner took a wallet from the pocket of William Carelis, a seventy year old man, at the Port Authority Bus Terminal in Manhattan on April 16, 2002.
Abdoulaye Sakho, an employee of a bus company at the terminal, testified for the People at trial. (See Petr.'s App. ("PA") 32-33.) Sakho was getting coffee when he noticed Carelis walking down the stairs to the lower level and the petitioner walking behind him. (PA 36-38.) Sakho saw the petitioner bump into Carelis causing him to stumble down the flight of stairs. (PA 39-41.) The petitioner approached Carelis and asked whether he was "okay." (PA 40-41, 63.) Sakho testified that as the petitioner helped Carelis up he reached into Carelis's right pocket and removed his wallet, and the petitioner snatched it away when Carelis resisted. (PA 41-42, 64-66.) Carelis called for help, and Sakho pursued the petitioner as he ran away, following him up an escalator. (PA 42, 67-70.) At the top of the escalator, Sakho grabbed the petitioner, and the petitioner threw the wallet from the top of the escalator toward Carelis. (PA 42, 43-44, 46, 55-56, 68-71.) Sakho held the petitioner while the Port Authority Police were contacted and until the police arrived. (PA 45.)
Carelis also testified for the People. Carelis's account differed from Sakho's in that Carelis recalled feeling someone "brush against" the left pocket of his pants as he was walking. (PA 9, 16-18, 28-29.) Carelis discovered that his wallet, which contained $90, was missing, and he noticed the petitioner in the vicinity. (PA 5-7, 10, 17-19, 22, 27.) Carelis said to the petitioner, "stop . . . you have my wallet," but the petitioner kept walking. (PA 10-11.) Carelis followed the petitioner down the stairs, but stumbled, and he yelled, "Hey, stop that guy, he's got my wallet." (PA 8-9, 11-12, 19-21, 25.) Carelis's account of the petitioner's apprehension by Sakho largely mirrors Sakho's testimony summarized above. (See PA 11-13, 22-28.) Carelis testified that when the petitioner tossed his wallet to Carelis he told Carelis that he "found" the wallet. (PA 13, 24.)
The petitioner presented no witnesses at trial. During summation, defense counsel argued that the People had failed to prove that the petitioner had used physical force to steal Carelis's wallet, emphasizing that Sakho and Carelis's testimony conflicted on this point. (PA 73-77.) Defense counsel claimed that according to Carelis's own testimony, there was "no way" the wallet could have been positioned so that the petitioner could take it because Carelis's left pocket was buttoned and covered by a sweater. (PA 78.) When defense counsel said, "Is it possible that his wallet fell out of his pocket and [the petitioner] picked it up?" the prosecutor objected, and the court instructed defense counsel that he could not ask the jury to speculate on that subject because there was no evidence that the wallet fell out of Carelis's pocket. (PA 78-79.) Later in the summation, defense counsel asked without objection whether it was "reasonable to believe that [the petitioner] returned the wallet and he did so because he found it" and stated that the alleged victim provided facts demonstrating that "there could be an innocent explanation for why [the petitioner] had the wallet." (PA 81.)
After an adjournment until the next day, the defense counsel raised again with the Court the subject of the prior objection that was sustained. (See PA 91-92.) The defense counsel claimed that he should have been allowed to argue the possibility that Carelis had dropped the wallet. (PA 91.) The court responded that in sustaining the prosecutor's objection, the court had instructed the jurors that only their recollection of the evidence would control and that they could not speculate on things not in evidence, and it refused a request for more time to sum up. (PA 92.)
On October 31, 2002, the jury convicted the petitioner of grand larceny in the fourth degree in violation of N.Y. Penal Law § 155.30(5), but it acquitted him of a charge of robbery in the third degree. Grand larceny in the fourth degree is a non-violent, class "E" felony which, because of the defendant's undisputed status as a second felony offender, would result in an indeterminate sentence with a maximum range of two to four years imprisonment without the application of the persistent felony offender statute. See N.Y. Penal Law § 70.06.
The prosecution moved to enhance the sentence pursuant to the persistent felony offender statute, N.Y. Penal Law § 70.10. That statute defines a "persistent felony offender" as "a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies." Id. § 70.10(1). The statute also provides that when a defendant has been found to be a persistent felony offender, and when the 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," the court may impose an enhanced sentence of imprisonment defined as the sentence that a defendant who committed an "A-I" felony would receive under the relevant sentencing statute. See id. § 70.10(2). The term of imprisonment for an A-I felony is an indeterminate sentence with a minimum of fifteen to twenty-five years and a maximum of life imprisonment. N.Y. Penal Law § 70.00. The associated criminal procedure law, N.Y. Crim. Proc. Law § 400.20, specifies procedures the court must follow to impose a persistent felony offender sentence, including the necessity of a hearing and the burden of and standard of proof imposed upon the prosecutor.
On December 17, 2002, the court ordered a hearing to determine whether the enhancement should apply. See N.Y. Crim. Proc. Law § 400.20(3)-(4). The petitioner submitted a memorandum in advance of the hearing arguing that the persistent felony offender provisions violated the Sixth and Fourteenth Amendments under Apprendi and Ring v. Arizona, 536 U.S. 584 (2002). At a hearing on January 23, 2003, the petitioner admitted two of his prior felony convictions, rendering him a persistent felony offender as defined by N.Y. Penal Law § 70.10(1)(a).
When the court sentenced the defendant on January 30, 2003, the court found that the petitioner qualified as a persistent felony offender, reviewed his criminal history, and concluded that his history and character and the nature and circumstances of his criminal conduct warranted extended incarceration and lifetime supervision. The court explained that it relied on the extensive number of his prior convictions, the fact that he repeated the same sorts of theft crimes at the same location, and the court's conclusion that he was beyond rehabilitation and would continue to steal "as long as he is physically able." (See PA 154-161.) Specifically, the court stated:
The [petitioner] has twelve theft related misdemeanor convictions in New York City alone . . . . He also has three theft related felony convictions between 1990 and 1999 in New York City, not including this one. . . . Before he came to New York City, he was arrested fifty-seven times, as I said earlier, in various states for just about every crime imaginable . . . . After he is released from committing one crime he seems to go right back and commit another crime and is brought back to jail. On his New York record alone, not even considering anything he did before he came to this city, he should receive a lifetime supervision sentence. In my judgment he is far beyond any rehabilitation and as long as he is physically able to steal, he will. This is someone who is not going to stop committing crimes. (PA 161.) The court sentenced the petitioner, who was 58 years old, to an indeterminate term of twenty years to life imprisonment.
On appeal to the Appellate Division, First Department, the petitioner argued (i) that the trial court improperly prohibited defense counsel from arguing in summation that the petitioner had merely found the wallet, not taken it from Carelis, (ii) that his sentence was unconstitutional because it was enhanced beyond the prescribed statutory range based on factual findings by the court that were not submitted to the jury or found beyond a reasonable doubt, and (iii) that his sentence was excessive. On August 4, 2005, the Appellate Division affirmed the conviction but modified the sentence to fifteen years to life in the interest of justice. See People v. Washington, 799 N.Y.S.2d 217, 217 (App. Div. 2005). The Appellate Division agreed with the trial court that it was speculative to argue that the wallet fell out of the victim's pocket, and that the defense had been able to make essentially the same argument in any event, so there was no denial of the right to counsel. Id. The Appellate Division cited the New York Court of Appeals decision in People v. Rivera, 833 N.E.2d 194 (N.Y. 2005), and its earlier decision in People v. Rosen, 752 N.E.2d 844 (N.Y. 2001), in finding that the persistent felony offender sentencing procedure was not unconstitutional. Washington, 799 N.Y.S.2d at 218.
The petitioner sought leave to appeal to the New York Court of Appeals, arguing both that the restriction on defense summation denied his Sixth Amendment right to counsel and that his sentence was unconstitutional. The Court of Appeals denied leave on September 12, 2005. People v. Washington, 837 N.E.2d 747 (N.Y. 2005) (table). The petitioner sought a writ of certiorari from the United States Supreme Court only on the Apprendi sentencing question, but the Court denied certiorari on January 9, 2006. Washington v. New York, 126 S.Ct. 1047 (2006) (table).
This petition was filed on March 29, 2006. The Court held oral argument on the petition on May 8, 2007 and took the matter under advisement at that time.
In this petition, the petitioner argues (i) that the trial court improperly limited defense counsel's summation, denying the petitioner his Sixth Amendment right to the assistance of counsel, and (ii) that his sentence as a persistent felony offender was unconstitutional under the Apprendi line of cases.
It is apparent that the petitioner has exhausted these two claims because he pursued both claims all the way to the New York Court of Appeals citing the relevant constitutional amendments and the leading Supreme Court cases on the issues at hand. He also timely filed his petition because it came within one year of the conclusion of certiorari proceedings in the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Because a state court previously adjudicated the petitioner's claims on the merits, this Court evaluates the petitioner's claims using the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and set forth in 28 U.S.C. § 2254(d). That section provides, in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .
A state court decision is contrary to clearly established 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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives ...