The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro Se petitioner Frank Crisler filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody. Petitioner was convicted pursuant to a judgment entered on September 14, 1994, in New York State, Monroe County Court, of one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law (hereinafter "Penal Law" § 265.03) and two counts of Criminal Use of a Firearm in the Second Degree (Penal Law 265.08). For the reasons set forth below, the petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was indicted on five counts stemming from an incident occurring on or about October 25, 1992, when petitioner was caught by a Rochester, New York police officer illegally possessing and using a handgun. Indictment No. 293 filed in April of 1993 charged petitioner with one count of Attempt to Commit Murder in the First Degree, one count of Criminal Possession of a Weapon in the Second Degree, two counts of Criminal Use of a Firearm in the Second Degree, and one count of Reckless Endangerment in the First Degree. A trial on all counts was held, and upon conclusion of the trial, the court dismissed the Reckless Endangerment charge. Trial Transcript (hereinafter "T.T.") 473. The jury acquitted the petitioner on the charge of Attempted Murder, but convicted him of one count of Criminal Possession of a Weapon in the Second Degree and two counts of Criminal Use of a Firearm in the Second Degree. T.T. 609-610.
Because the petitioner had previously been convicted of at least two felonies, he was subject to enhanced sentencing under New York Law as a persistent felony offender. At sentencing, the court determined that the enhanced sentencing provisions applied, and sentenced petitioner to a term of twenty-five years to life imprisonment.
On May 9, 1996, petitioner motioned the Monroe County Court, in a collateral post-conviction proceeding, to vacate his conviction pursuant to C.P.L. § 440.10 on the basis of newly discovered evidence. Resp't Appx. B. The motion was denied. Resp't Appx. H. Petitioner appealed the denial of his §440.10 motion, to the Appellate Division, Fourth Department, which partially-granted his appeal, and dismissed petitioner's convictions on the two counts of Criminal Use of a Firearm in the Second Degree. People v. Crisler, 278 A.D.2d 887, 889 (4th Dept. December 27, 2000). Though the Appellate Division vacated Petitioner's sentence with respect to the counts of Criminal Use of a Firearm, he remained a persistent felony offender, and therefore, his sentence of 25 years to life remained unchanged. Id. However, the Appellate division later vacated its December 27, 2000 Decision, (People v. Crisler, 289 A.D.2d 1097 (4th Dept. December 21, 2001), and in a Decision dated March 21, 2003, unanimously affirmed the original denial of petitioner's §440.10 motion. People v. Crisler, 303 A.D.2d 949 (4th Dept. 2003).
Petitioner filed a final collateral post-conviction proceeding pursuant to C.P.L § 440.20. Petitioner claimed that because his sentence of twenty-five years to life is greater than the statutory maximum for the crimes of which he was convicted, and because his sentence was imposed pursuant to New York State's persistent felony offender law (which requires a judge to make factual findings in determining whether the enhanced sentencing provisions apply) his sentence is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), which, in general, holds that "[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." 530 U.S. at 490. The motion was denied in a Monroe County Court decision dated March 15, 2004. The court relied on People v. Rosen, 96 N.Y.2d 329 (2001), which was decided post-Apprendi, and held that New York's felony offender statute does not violate due process.
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on grounds that his sentence is unconstitutional under Apprendi because a judge, and not a jury, made factual findings which enhanced his sentence beyond the maximum sentence allowable for the crime of Criminal Possession of a Weapon in the Second Degree.
I. The Standard of Review for Habeas Corpus Petitions
In reviewing a state prisoner's habeas corpus petition pursuant to 28 U.S.C. § 2254, federal district courts make an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution or any laws and treaties of the United States. Coleman v. Thompson, 501 U.S. 722, 730 (1991), reh'g denied, 501 U.S. 1277 (1991). A federal court does not function as an appellate court to review matters within the jurisdiction of the state, or to review rulings and decisions of state trial and appellate courts when it reviews a state prisoner's habeas petition. Rather, the court only determines whether the proceedings in state court amount to a violation of federal constitutional rights. Id. Federal review of state court convictions is limited to federal constitutional errors which deny criminal defendants the right to a fundamentally fair trial. Cupp v. Naughton, 414 U.S. 141, 144 (1973).
When reviewing habeas claims of petitioner's who were convicted in state court, the federal habeas court may not grant relief unless the state court decision was:
contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme ...