The opinion of the court was delivered by: John G. Koeltl, District Judge
The petitioner, Johnny White, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of Criminal Mischief in the Third Degree, in violation of N.Y. PENAL LAW § 145.05, and Petit Larceny, in violation of N.Y. PENAL LAW §155.25. The petitioner was sentenced pursuant to New York's persistent felony offender statute, N.Y. PENAL LAW § 70.10(1), to an indeterminate prison term of fifteen years to life on the count of criminal mischief, to run concurrently with a one-year sentence on the count of petit larceny. The petitioner challenges his conviction on the grounds 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.
The petitioner failed to exhaust this claim in the New York State Courts. Moreover, the claim that New York's persistent felony offender statute is an unconstitutional violation of Apprendi has now been rejected by the Court of Appeals for the Second Circuit. See Portalatin v. Graham, 07-1599-PR, 06-3550-PR, 07-3588-PR, 2010 WL 4055571, at *20 (2d Cir. Oct 18, 2010) (en banc).*fn1 The petition must therefore be denied.
By New York County Indictment Number 5130/01, filed on August 29, 2001, the petitioner was charged with one count of Criminal Mischief in the Third Degree, in violation of N.Y. PENAL LAW § 145.05, one count of Petit Larceny, in violation of N.Y. PENAL LAW § 155.25, and one count of Criminal Possession of Stolen Property in the Fifth Degree, in violation of N.Y. PENAL LAW §165.40. On August 14, 2002, a jury found the petitioner guilty of third-degree criminal mischief and petit larceny.
The prosecutor sought to have the petitioner adjudicated a persistent felony offender pursuant to the persistent felony offender statute, N.Y. PENAL LAW § 70.10, on the basis of his 1995 conviction for fourth-degree possession of a controlled substance, and his 1993 conviction for fourth-degree grand larceny. 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." N.Y. PENAL LAW § 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 lifetime 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 ("C.P.L.") § 400.20, specifies procedures that courts must follow to impose a persistent felony offender sentence.
On January 27, 2003, the trial court held a hearing to determine whether the enhancement should apply. After the petitioner admitted two of his prior felony convictions and declined to present a constitutional challenge to these convictions, the trial court then adjudicated him a discretionary persistent felony offender pursuant to N.Y. PENAL LAW § 70.10(1)(a). Following arguments and submissions by both counsels, the trial court concluded that, in view of his criminal history, the petitioner constituted a threat to public safety and appeared incapable of rehabilitation. The trial court then sentenced the petitioner to an indeterminate prison term of fifteen years to life for the count of criminal mischief, to run concurrently with a one-year sentence for the count of petit larceny.
The petitioner subsequently filed a brief in the Appellate Division, First Department. The petitioner contended that: (1) the evidence supporting a conviction of criminal mischief in the third-degree was legally insufficient where the prosecutor failed to prove that the cost of repair exceeded $250, and; (2) his sentencing as a discretionary persistent felony offender was unconstitutional, depriving the petitioner of his rights to a jury trial, due process and indictment by a grand jury. The prosecutor filed an opposing brief that argued that the petitioner's sentencing was permissible under New York law (citing People v. Rivera, 833 N.E.2d 194 (N.Y. 2005), and People v. Rosen, 752 N.E.2d 844 (N.Y. 2001)). On May 4, 2006, the Appellate Division, First Department unanimously affirmed the petitioner's conviction. People v. White, 813 N.Y.S.2d 718 (1st Dep't 2006). With respect to the petitioner's claim that his sentencing as a discretionary persistent felony offender was unconstitutional, the court held that "[t]he [trial] court properly exercised its discretion in sentencing defendant as a persistent violent felony offender. Defendant's constitutional challenge to the procedure under which he was thus sentenced is unpreserved for appellate review and, in any event, is without merit." White, 813 N.Y.S.2d at 719 (citing Rivera, 833 N.E.2d 194; Rosen, 752 N.E.2d 844). Thereafter, on July 10, 2006, the petitioner sought leave to appeal to the New York Court of Appeals. On July 20, 2006, the petitioner's leave application was denied.
This petition was filed on October 18, 2007. In its opposition brief, the respondent contends that the petitioner failed to exhaust his remedies in state court by failing to appeal the Appellate Division's denial of his Apprendi claim to the New York Court of Appeals. The respondent concludes that, because this claim can no longer be raised in state court, the claim should be deemed exhausted but procedurally barred.*fn2
The federal habeas corpus statute, 28 U.S.C. §§ 2254(b) and (c), "embodies the long-established principle" that a state prisoner seeking federal habeas review of his conviction normally must first exhaust available state remedies. Daye v. Attorney General, 696 F.2d 186, 190 (2d Cir. 1982); see also Picard v. Connor, 404 U.S. 270 (1971). Specifically, 28 U.S.C. § 2254(b) provides that "[a]n 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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." The exhaustion requirement that federal courts not exercise habeas review of a state conviction unless the state courts have had an opportunity to consider and correct any violation of federal law "springs primarily from considerations of comity." Daye, 696 F.2d at 191. It "expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Id.
"Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had." Id. at 190 n.3. In order to exhaust a claim before the state's highest court, "a defendant must give that court a fair opportunity to pass on [the defendant's] federal claim." Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). "In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and legal premises of the claim he asserts in federal court." Daye, 696 F.2d at 191. This means, in essence, "that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192.
In the present case, the respondent contends that the petitioner failed to raise his Apprendi claim when he sought leave to appeal to the New York Court of Appeals. The petitioner responds that he did raise the Apprendi claim, although he concedes that his application for leave ...