The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Represented by counsel, Norman P. Effman, Esq., Angel Seda ("Seda" or "Petitioner") has filed a motion for a certificate of appealability (Docket No. 20) with regard to this Court's Decision and Order entered March 7, 2011 (Docket No. 18), denying Seda's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In that Order, I held that because Seda had failed to make a substantial showing of denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), a certificate of appealability would not issue as to any of his claims.
Seda is presently serving a sentence of an indeterminate term of
imprisonment of 22 years to life. He was convicted on charges of
burglary in the second degree (N.Y. Penal Law § 140.25(2)) (one count)
and attempted burglary in the second degree (N.Y. Penal Law §§ 110.00,
140.25(2)) (one count). The separate counts of the indictment involved
accusations of two acts, one a burglary of October 13, 2003, and the
second, an attempted burglary on October 22, 2003. The October 13
thburglary involved the home of a
Buffalo Police Officer, whose tenant was
also a Buffalo Police Officer. He was adjudicated as a persistent
felony offender under New York Penal Law § 70.10, New York's
much-challenged recidivist statute. He was originally sentenced by
former Erie County Supreme Court Justice Ronald Tills *fn1
to consecutive terms of 22 years to life. That sentence
was modified by the Appellate Division, Fourth Department, of New York
State Supreme Court, which ordered the two sentences to run
concurrently instead of consecutively. People
Seda , 35 A.D.3d 1162 (App. Div. 4 th Dept. 2006).
In a timely habeas petition pursuant to 28 U.S.C. § 2254, Seda--proceeding pro se at the time--asserted that trial counsel had provided ineffective assistance by failing to request a suppression hearing, failing to move for severance, failing to challenge the prosecutor's use of peremptory challenges, failing to give an opening statement, erroneously admitting a tape-recording of a 911 call into evidence, giving a deficient summation, and failing to challenge the constitutionality of Seda's predicate felony convictions. Seda also argued that New York's persistent felony offender statute, Penal Law § 70.10, is unconstitutional under the Sixth Amendment as explicated by the Supreme Court in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. Finally, Seda challenged the length of his sentence, arguing that it was harsh and excessive and constituted an abuse of discretion.
During the pendency of the petition, Seda retained Attorney Effman, who submitted a memorandum of law in support of Seda's habeas claims.
This Court considered the substance of all of Seda's arguments for
habeas relief and found the ineffective assistance of trial counsel claim and the
Apprendi claim to be without merit, and the
harsh-and-excessive sentence claim to be not cognizable on federal
habeas review. Finding that Seda had not made a "substantial showing
of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), with
regard to any of the claims, the Court declined to issue a certificate
In his motion for a certificate of appealability (Docket No. 20), Seda argues that trial counsel's failure to challenge the constitutionality of Seda's predicate felony convictions "pertains not only to the argument of ineffective assistance of counsel, but also to the constitutional issue as to the legality of New York's statute in light of Apprendi and its progeny." Affidavit of Norman Effman, Esq. ("Effman Aff."), ¶11 (Docket No. 20). He concedes, "[t]hat issue would appear to have been resolved against Petitioner based on the en banc decision" of the Second Circuit in Portalatin v. Graham , 624 F.3d 69 (2d Cir. 2010), and the United States Supreme Court's denial of certiorari on March 21, 2011. Id. , ¶12 (Docket No. 20). He states that the issue of the constitutionality of New York State's persistent felony offender sentencing statute "is still potentially before the United States Supreme Court in that the Supreme Court has not yet determined an application for review of the New York State Court of Appeals decision in People v. Battles , 16 N Y 3rd [sic] 54." Id. (Docket No. 20).
In Battles , one person was burned to death and three others severely burned as a result of defendant having poured gasoline over several individuals and setting a fire. After a jury trial, defendant was convicted of depraved indifference murder (New York Penal Law ("P.L.") § 125.25(2)), second-degree manslaughter (P.L. § 125.15(1)), and three counts of depraved indifference assault (P.L.§ 120.10(3)). He was sentenced as a persistent felony offender to concurrent sentences of 25 years to life on the depraved indifference murder and manslaughter convictions, to be followed by consecutive terms of 25 years to life on the depraved indifference assault convictions related to Gregory Davis and Wheeler, and a consecutive term of 20 years to life on the depraved indifference assault conviction related to Elliott, for an aggregate sentence of 95 years to life.
Defendant Battles appealed, asserting, among other claims, that
the imposition of consecutive sentences was illegal because the
victims were all burned in a fire that had a single source of
ignition, that is, the crimes shared a common actus reus.
Battles also argued that his sentencing as a persistent
felony offender was unconstitutional under Apprendi v. New
Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), and its progeny, in particular, Cunningham v.
California, 549 U.S. 270 (2007 ) . The
Appellate Division modified the judgment by vacating the conviction of
second-degree manslaughter and the sentence imposed thereon, and
otherwise affirmed. The Appellate Division further held that
defendant's Apprendi claim was unpreserved and
without merit. It rejected, without discussion, defendant's
consecutive sentencing claim as without merit. People v.
Battles , 65 A.D.3d 1161, 886 N.Y.S.2d 170 (App. Div. 2d
On appeal to the New York Court of Appeals, the majority held,
without discussion, that Battles's challenge to the constitutionality
of his sentencing as a persistent felony offender was without merit.
People v. Battles , 16 N.Y.3d 54, 59 (N.Y. 2010)
(citing People v. Quinones, 12 N.Y.3d 116, 879
N.Y.S.2d 1, 906 N.E.2d 1033 (N.Y. 2009); People v. Bell
, 15 N.Y.3d 935, 915 N.Y.S.2d 208, 940 N.E.2d 913 (N.Y. 2010)).
As Attorney Effman points out, Chief Judge Jonathan Lippman wrote a blistering dissent in the Battles cases, arguing that there is no material difference between the California recidivist sentencing statute struck down by the United States Supreme Court in Cunningham v. California , 549 U.S. 270 (2007), and New York's persistent felony offender sentencing statute, Penal Law § 70.10. Judge Lippman noted that the Court of Appeals' rationale for distinguishing Penal Law § 70.10 "has been the focus of extensive federal habeas litigation." Id. (citing Besser v. Walsh , 601 F.3d 163 (2d Cir. 2010) (holding that the Court of Appeals' rationale was unreasonable subsequent to the Supreme Court's decision in Blakely v. Washington , 542 U.S. 296 (2004), and, accordingly, that the decisions in People v. Rivera , 5 N.Y.3d 61 (N.Y. 2005), and Quinones , 12 N.Y.3d 116, misapplied clearly established Supreme Court precedent). As Judge Lippman noted, Besser "was shortlived", for after "en banc reconsideration, it was vacated by the Second Circuit in a divided ruling, Portalatin v. Graham , 624 F.3d 69 (2d Cir. 2010)). Judge Lippman read Portalatin as "hardly plac[ing] a federal imprimatur upon [New York's] Apprendi jurisprudence" given that "[i]t was decided under the extraordinarily ...