Page 1 of 62 07-1599-pr, 06-3550-pr, 07-3588-pr Portalatin v. Graham UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 5 6 August…

Page 1 of 62
07-1599-pr, 06-3550-pr, 07-3588-pr
Portalatin v. Graham
UNITED STATES COURT OF APPEALS 1
2
F OR THE S ECOND C IRCUIT 3
4
5
6
August Term, 2009 7
8
(En Banc Rehearing: July 9, 2010 Decided: October 18, 2010) 9
10
Docket Nos. 07-1599-pr, 06-3550-pr, 07-3588-pr 11
(consolidated for disposition) 12
13
14
C ARLOS P ORTALATIN , 15
16
Petitioner-Appellee, 17
18
–v.– No. 07-1599-pr 19
20
H AROLD G RAHAM , Superintendent, Auburn Correctional Facility, 21
22
Respondent-Appellant. 23
24
25
26
W ILLIAM P HILLIPS , 27
28
Petitioner-Appellant, 29
30
–v.– No. 06-3550-pr 31
32
D ALE A RTUS , Superintendent, Clinton Correctional Facility, 33
A NDREW M. C UOMO , New York State Attorney General, 34
35
Respondents-Appellees. 36
37
38
39
40
41

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* The Clerk of the Court is directed to amend the official caption in
this action to conform with that of this opinion.
** Senior Circuit Judge Winter was a member of the initial three-judge
panel that heard this appeal, and is therefore eligible to participate in en
banc rehearing. See 28 U.S.C. § 46(c)(1).
*** Senior Circuit Judge Sack was a member of the initial three-judge
panel that heard this appeal, and is therefore eligible to participate in en
banc rehearing. See 28 U.S.C. § 46(c)(1).
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V ANCE M ORRIS , 1
2
Petitioner-Appellant, 3
4
–v.– No. 07-3588-pr 5
6
D ALE A RTUS , Superintendent, Clinton Correctional Facility, 7
A NDREW M. C UOMO , New York State Attorney General, 8
9
Respondents-Appellees. *
10
11
12
13
14
Before: 15
J ACOBS , Chief Judge, W INTER , ** C ABRANES , P OOLER , S ACK , ***
16
K ATZMANN , R AGGI , W ESLEY , H ALL , L IVINGSTON , 17
L YNCH , C HIN , Circuit Judges. 18
19
W ESLEY , J., filed the majority opinion in which J ACOBS , 20
C.J., C ABRANES , K ATZMANN , R AGGI , H ALL , L IVINGSTON , L YNCH , and C HIN , 21
JJ., joined. 22
23
W INTER , J., filed a dissenting opinion in which P OOLER 24
and S ACK , JJ., joined. 25
26
Habeas petitioners challenge the constitutionality of 27
sentences imposed pursuant to New York’s persistent felony 28
offender statute. See N.Y. Penal Law § 70.10. A previously 29
constituted panel of this Court held that the state courts 30
unreasonably applied the Supreme Court’s construction of the 31
Sixth Amendment in Blakely v. Washington, 542 U.S. 296 32
(2004), in affirming the petitioners’ sentences, but 33
remanded to the district court for harmless error analysis. 34

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Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010). Following 1
this rehearing en banc, and for the reasons discussed 2
herein, the Court rejects that conclusion. Petitions 3
denied. 4
5
The grant of Portalatin’s petition is R EVERSED , and the 6
denials of Phillips’s and Morris’s petitions are A FFIRMED . 7
8
9
10
11
L EONARD J OBLOVE , Ann Bordley, Assistant District 12
Attorneys, of counsel, Kings County, Brooklyn, 13
NY, for Respondent-Appellant Harold Graham 14
15
A NDREW C. F INE , The Legal Aid Society, Criminal 16
Appeals Bureau, New York, NY, for Petitioner- 17
Appellant Vance Morris 18
19
M ARTIN M. L UCENTE (Andrew C. Fine, on the brief), The 20
Legal Aid Society, Criminal Appeals Bureau, 21
New York, NY, for Petitioner-Appellant William 22
Phillips 23
24
B ARBARA D. U NDERWOOD (Andrew M. Cuomo, Attorney 25
General of the State of New York, Roseann B. 26
MacKechnie, Deputy Solicitor General for 27
Criminal Matters, Alyson J. Gill, Assistant 28
Attorney General, of Counsel, on the brief), 29
Solicitor General, for Respondent-Appellees 30
Andrew M. Cuomo and Dale Artus 31
32
J OSHUA M ICHAEL L EVINE (Lynn W.L. Fahey, on the brief), 33
Appellate Advocates, New York, NY, for 34
Petitioner-Appellee Carlos Portalatin 35
36
37
38
39
40
41
42
43
44

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W ESLEY , Circuit Judge: 1
Petitioners Carlos Portalatin, William Phillips, and 2
Vance Morris were separately convicted in state court and 3
received sentences pursuant to New York’s persistent felony 4
offender statute, N.Y. Penal Law § 70.10. Each petitioned 5
for a writ of habeas corpus on the ground that the New York 6
courts engaged in an unreasonable application of clearly 7
established federal law in affirming their sentences. 8
Specifically, they argue that the Sixth Amendment guarantee 9
of the right to an impartial jury, as construed by the 10
Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) 11
and its progeny, proscribes the long-used sentencing 12
procedure in New York that results in judicially enhanced 13
sentences for certain recidivist offenders. 14
In the case of petitioner Portalatin, the United States 15
District Court for the Eastern District of New York agreed, 16
issuing a writ of habeas corpus from which the State now 17
appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 18
(E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners 19
Phillips and Morris, the United States District Court for 20
the Southern District of New York separately declined to 21
issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 22

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2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, 1
J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at 2
*1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners 3
appealed. 4
In a consolidated appeal, a panel of this Court 5
concluded that New York’s persistent felony offender 6
sentencing scheme violates the Sixth Amendment, and that the 7
New York courts unreasonably applied clearly established 8
Supreme Court precedent in holding otherwise, but remanded 9
the matters to the district court for consideration of 10
whether those errors were harmless. See Besser v. Walsh, 11
601 F.3d 163, 189 (2d Cir. 2010). 12
A majority of judges in active service then called for 13
this rehearing en banc. The Court now holds that the state 14
courts did not engage in an unreasonable application of 15
clearly established Supreme Court precedent in affirming the 16
convictions. Accordingly, the grant of the writ to 17
Portalatin is reversed, and the denials of the writ to 18
Phillips and Morris are affirmed. 19
20
21
22

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Background 1
A. New York’s Recidivist Sentencing Scheme 2
At issue in this case is the constitutionality of New 3
York’s persistent felony offender (“PFO”) sentencing 4
statute, which authorizes lengthy terms of imprisonment for 5
certain recidivist offenders in New York. 6
New York was the first state in the Union to enact a 7
recidivist sentencing law; that is, one that punishes repeat 8
offenders more harshly than first-time offenders. See 9
generally Susan Buckley, Note, Don’t Steal a Turkey in 10
Arkansas – the Second Felony Offender in New York, 45 11
Fordham L. Rev. 76 (1976). New York provided for the 12
enhancement of sentences for second-time offenders beginning 13
in 1796. Act of March 26, 1796, ch. 30, 1789-1796 N.Y. Laws 14
669 (1887 ed.). It subsequently added a mandatory life 15
sentence for fourth-time offenders, Act of July 19, 1907, 16
ch. 645, 1907 N.Y. Laws 1494-95, which was later reduced to 17
an indeterminate term of between fifteen years and life, 18
Act of April 4, 1932, ch. 617, 1932 N.Y. Laws 1312. 19
Ultimately, in revising the Penal Law in 1965, New York 20
began to move away from that rigid mandatory framework — 21
with respect to non-violent offenders — to permit judges 22

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more flexibility in selecting a sentence that is not unduly 1
harsh in any given case: 2
The primary objection to the existing New York 3
provisions is the mandatory feature which 4
requires the court to blind itself to all 5
relevant sentencing criteria, such as the 6
circumstances surrounding the crime for which 7
sentence is to be imposed, the nature and 8
circumstances of the previous crimes, and the 9
history, character and condition of the 10
offender. 11
12
Comm. Staff Notes, reprinted in proposed New York Penal Law 13
(Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376), § 14
30.10 [now § 70.10], at 284. 15
Accordingly, Article 70 of New York’s penal law now 16
sets forth two categories of recidivists, or “persistent 17
offenders.” A persistent violent felony offender is defined 18
as a person who stands convicted of a violent felony (as 19
defined in N.Y. Penal Law § 70.02) and has previously been 20
convicted of two or more violent felonies (as defined in 21
N.Y. Penal Law § 70.04(1)(b)). Such an individual is 22
subject to an enhanced sentencing range, with a maximum term 23
of life in prison, and a minimum term fixed, based on the 24
category of the offense, anywhere from twelve to twenty-five 25
years. N.Y. Penal Law § 70.08(2), (3). A judge does not 26
have discretion to depart from that enhanced range: “[w]hen 27

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1 The full text of the PFO statute is set forth in Appendix A, infra.
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the court has found . . . that a person is a persistent 1
felony offender the court must impose an indeterminate 2
sentence of imprisonment [as provided herein].” Id. § 3
70.08(2) (emphasis added). 4
By contrast, subject to certain exceptions, a 5
persistent felony offender is defined as a “person, other 6
than a persistent violent felony offender . . . who stands 7
convicted of a felony after having previously been convicted 8
of two or more felonies.” Id. § 70.10(1)(a). 1 Once a 9
defendant is determined to be a PFO, he may receive an 10
indeterminate sentence corresponding to that of a class A-I 11
felony, which ranges from a minimum of fifteen to twenty- 12
five years, and a maximum of life in prison. Id. §§ 13
70.10(2); 70.00(3)(a)(i). However, unlike New York’s 14
persistent violent felony offender statute, the PFO statute 15
does not require the judge to impose a sentence within that 16
elevated range. Instead, the decision whether to impose a 17
class A-I sentence is within the judge’s discretion. Id. § 18
70.10(2). 19
The PFO statute is therefore commonly referred to as 20
the “discretionary” persistent felony offender statute. It 21

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Page 9 of 62
permits, but does not require, a class A-I sentence for 1
certain recidivist felons. The procedure by which a judge 2
determines whether to impose a PFO sentence in a particular 3
case is set forth in New York Criminal Procedure Law § 4
400.20. Pursuant to that provision, the prosecution must 5
first prove beyond a reasonable doubt that the defendant is 6
a PFO — that is, that he has previously been convicted of 7
two or more qualifying felonies — before an enhanced 8
sentence is authorized. See N.Y. Crim. Proc. Law § 9
400.20(1), (5). But the court is also directed to engage in 10
a second inquiry, and to assess whether a PFO sentence is 11
warranted before imposing such a sentence, taking into 12
consideration the “history and character” of the defendant 13
and the “nature and circumstances of his criminal conduct.” 14
Id. 15
If, in the court’s view, the undisputed allegations 16
regarding the defendant’s background and the nature of his 17
criminal conduct justify the imposition of the enhanced 18
sentence, and the court is satisfied that the defendant 19
either has no relevant evidence to the contrary or such 20
evidence would not affect the court’s decision, then the 21
court may impose a class A-I sentence (without a further 22

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hearing) pursuant to § 70.10(2). See id. § 400.20(8). 1
Otherwise, the court may schedule a hearing at which the 2
prosecution and defendant are given an opportunity to 3
present evidence as to whether the A-I sentence is 4
warranted. Id. § 400.20(9). And, at the conclusion of that 5
hearing, 6
[i]f the court both finds that the defendant is a 7
persistent felony offender and is of the opinion 8
that a persistent felony offender sentence is 9
warranted, it may sentence the defendant in 10
accordance with the provisions of [Section 11
70.10(2)]. 12
13
Id. Throughout the proceeding the prosecution bears the 14
burden of proof. Id. § 400.20(5). If the sentencing court 15
imposes a class A-I sentence, “the reasons for the court’s 16
opinion shall be set forth in the record.” N.Y. Penal Law § 17
70.10(2). 18
To illustrate: A defendant who stands convicted as a 19
first-time offender of a class D felony is subject to an 20
indeterminate sentence, with a minimum term of no less than 21
one year and no more than two and one third years, and a 22
maximum term of between three years and seven years. See 23
id. § 70.00(2)(d), (3)(b). Following the defendant’s second 24
conviction of a class D felony, he faces an indeterminate 25

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2 The New York State Department of Correctional Services currently has
custody of approximately 2,450 persistent felons who received sentences
pursuant to either Section 70.08 or 70.10, which accounts for 4.2% of the
total inmate population. State of New York Department of Correctional
Services, Under Custody Report: Profile of Inmate Population Under Custody on
January 1, 2010, available at http://www.docs.state.ny.us/research/reports/
2010/undercustody_report.pdf; see also Joel Stashenko, Penalties for
‘Persistent’ Felons Violate the Constitution, Circuit Says, N.Y.L.J., Apr. 1,
2010, p.6, col. 1. The Department does not distinguish between persistent
felony offenders, and persistent violent felony offenders, for statistical
purposes.
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sentence with a minimum term of between two years and three 1
and one half years, and a maximum term of between four years 2
and seven years. See id. § 70.06(3)(d), (4)(b). A 3
subsequent conviction of a class D felony triggers the PFO 4
statute. Once the prosecution proves the fact of 5
defendant’s two prior convictions beyond a reasonable doubt, 6
the defendant is subject to a class A-I sentence, in the 7
discretion of the court and pursuant to the procedure 8
described above, with a minimum term of between fifteen and 9
twenty-five years, and a maximum term of life in prison. 10
See id. §§ 70.00(2)(a), (3)(a)(i), 70.10(2). 2
11
12
B. Facts and Procedural History 13
1. Carlos Portalatin 14
On July 12, 2002, Portalatin accosted a man at gunpoint 15
and forced him to drive to an empty street in Brooklyn. 16
Following a struggle, the victim managed to escape, and 17

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Page 12 of 62
Portalatin drove away in the car. He was convicted of 1
robbery in the first degree and kidnaping in the second 2
degree, both class B violent felonies. See N.Y. Penal Law § 3
70.02(1). 4
The prosecution asked the court to sentence Portalatin 5
as a persistent felony offender. A sentencing hearing was 6
held on April 28, 2003, at which the prosecution proved that 7
Portalatin had been previously convicted of the following: 8
(1) attempted burglary in the second degree in 1995; and (2) 9
attempted criminal sale of a controlled substance in the 10
fifth degree in 1998. Portalatin did not contest the 11
existence of those convictions. The court concluded that 12
Portalatin “appear[ed] to be eligible for discretionary 13
persistent felony offender adjudication” based on those 14
predicate offenses. 15
Next, at step two, the court conducted an assessment to 16
determine whether a class A-I sentence was warranted. The 17
court considered the circumstances of the crimes for which 18
he was convicted, and also examined the history and 19
character of the defendant: 20
[L]ooking back on the history of this defendant, 21
and having read these reports . . . [H]e began 22
his criminal career in 1989, and we have 23
beginning from that point on, the failure to take 24

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advantage of opportunities that might have 1
provided drug treatment, that might have in some 2
way assisted him. We have bench warrants 3
repeatedly. We have parole revocations, and 4
repeated parole revocations to the extent that 5
it’s only when these sentences maxed out that he 6
finally is released, and no sooner is he released 7
than there is a new crime. 8
. . . . 9
He certainly has earned a persistent adjudication 10
as I look at this Rap sheet and the circumstances 11
of this offense and other offenses, and I’m going 12
to adjudicate him a persistent felony offender. 13
14
The court imposed two indeterminate sentences of eighteen 15
years to life imprisonment, to run concurrently. Had the 16
court elected not to sentence Portalatin as a PFO, he would 17
have faced a determinate sentence of between ten and twenty- 18
five years on each count. See N.Y. Penal Law § 70.04(3)(a). 19
Portalatin appealed his conviction, contending that his 20
sentence was imposed in violation of the Sixth Amendment, as 21
construed by the Supreme Court in Apprendi. On May 16, 22
2005, the Appellate Division affirmed the judgment, People 23
v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334, 335 (2d 24
Dep’t 2005), and the New York Court of Appeals subsequently 25
denied him leave to appeal, People v. Portalatin, 5 N.Y.3d 26
793, 793 (2005). Portalatin then sought a writ of habeas 27
corpus in the United States District Court for the Eastern 28

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District of New York, which was granted. Portalatin, 478 F. 1
Supp. 2d at 407. The State took this appeal. 2
3
2. William Phillips 4
On March 13, 1999, Phillips and another man robbed a 5
magazine store in midtown Manhattan. The evidence at trial 6
established that Phillips entered the store with his 7
accomplice, pulled a knife, and demanded money from the 8
store manager. He was convicted following a jury trial of 9
one count of second-degree robbery (at the time a class C 10
violent felony). 11
Following his conviction, the prosecution moved to have 12
Phillips sentenced as a persistent felony offender pursuant 13
to § 70.10. Phillips’s predicate felony offenses included: 14
(1) in 1986, he was convicted of second-degree attempted 15
robbery relating to an incident in which he and an 16
accomplice “grabbed a man on a Bronx Street and forcibly 17
stole his property”; (2) in 1987, he was convicted of third- 18
degree burglary while awaiting sentencing on the 1986 Bronx 19
conviction; (3) also in 1987, he was convicted of fourth- 20
degree grand larceny arising from his theft of a wallet from 21
an undercover police officer; (4) once again in 1987, he was 22

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convicted of third-degree burglary arising from his theft of 1
merchandise from a card store; (5) in 1990, following the 2
completion of his sentences for the above charges, he was 3
convicted of third-degree attempted robbery; and (6) in 4
1994, he was convicted of attempted criminal sale of a 5
controlled substance in the third degree. Phillips also had 6
multiple misdemeanor offenses. 7
A sentencing hearing was held on January 4, 2000, at 8
which the court heard arguments on the prosecution’s § 70.10 9
motion. Phillips did not dispute the existence of his six 10
prior felony convictions. Instead, he challenged the facts 11
found by the jury in his case, maintained his innocence of 12
the March 13, 1999, robbery, and attempted to persuade the 13
court to exercise its discretion not to sentence him as a 14
PFO. 15
On January 13, 2000, the court issued its ruling. 16
First, the court made the threshold determination that 17
“defendant has been convicted of two or more previous 18
felonies and is a persistent felony offender within the 19
meaning of [§ 70.10].” The court then conducted a 20
generalized assessment, and concluded that a class A-I 21
sentence was warranted: 22

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Defendant has demonstrated time and again, 1
throughout his entire adult life, that he cannot 2
be trusted to function normally in society and 3
that he is unwilling and unable to rehabilitate 4
himself. The history and character of defendant 5
and the nature and circumstances of his criminal 6
conduct are such that extended incarceration and 7
lifetime supervision are warranted to best serve 8
the public interest. 9
(citing N.Y. Crim. Proc. Law § 400.20(1); N.Y. Penal Law § 10
70.10). Phillips received an indeterminate sentence of 11
sixteen years to life in prison. Had he not been sentenced 12
as a PFO, he would have faced a determinate sentence of 13
between seven and fifteen years. See N.Y. Penal Law §§ 14
70.02(1); 70.04(1), (3)(b). 15
Following his sentence, Phillips exhausted his appeals 16
in state court, see People v. Phillips, 2 A.D.3d 278, 279, 17
768 N.Y.S.2d 812, 812 (1st Dep’t 2003) (rejecting 18
defendant’s Apprendi challenge); People v. Phillips, 3 19
N.Y.3d 645, 645 (June 24, 2004), on reconsideration, 3 20
N.Y.3d 710, 710 (Sep. 30, 2004) (denying leave to appeal), 21
and then brought the instant petition for a writ of habeas 22
corpus in the United States District Court for the Southern 23
District of New York on the grounds that his sentence was 24
imposed in violation of the principle announced in Apprendi 25
v. New Jersey, 530 U.S. 466 (2000). On June 30, 2006, the 26

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district court rejected his Apprendi challenge and declined 1
to issue a certificate of appealability. Phillips, 2006 WL 2
1867386, at *5-7. Phillips then moved for a certificate of 3
appealability in this Court, which was granted. 4
5
3. Vance Morris 6
Morris was convicted following a jury trial of sixteen 7
counts of criminal contempt in the first degree, a class E 8
felony. See N.Y. Penal Law § 215.51(b). Four final orders 9
of protection had previously been issued against Morris when 10
the police were called to his ex-girlfriend’s apartment on 11
July 18, 2001. The woman informed the officers that Morris 12
had come to her residence in violation of the orders of 13
protection, repeatedly banged on her door, and threatened 14
her. While the officers were still present, Morris twice 15
called the apartment and left messages, each time 16
threatening to kill the woman. 17
Following Morris’s conviction, the State moved to 18
sentence him as a persistent felony offender. At sentencing 19
hearings held in April and July of 2002, Morris conceded 20
various prior felony convictions, including: (1) a 1989 21
conviction for attempted robbery in the third degree; (2) a 22

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1992 conviction for grand larceny in the fourth degree; (3) 1
a 1992 conviction for attempted criminal possession of a 2
controlled substance in the fifth degree; and (4) a 1994 3
conviction for robbery in the third degree. The court 4
therefore concluded that Morris qualified as a persistent 5
felony offender under Section 70.10. 6
Next, at step two, the court evaluated whether or not 7
Morris should be sentenced as a PFO. The sentencing judge 8
described the defendant’s long history of “terrorizing” his 9
ex-girlfriend, as well as several of her neighbors, who on 10
several occasions felt it necessary to call the police for 11
fear that “he’s going to kill us all.” In addition, while 12
Morris was incarcerated at Riker’s Island during the 13
pendency of the case, he called his ex-girlfriend on thirty- 14
two separate occasions in violation of the orders of 15
protection. The court considered the defendant’s other 16
criminal history of violence toward women, which include 17
numerous incidents in the subway, inter alia: 18
firing a projectile in the face of a female 19
passenger in 1986, twice snatching pairs of 20
earrings from the ears of female passengers, 21
slapping a [visibly] pregnant female in the face 22
and snatching necklaces from her neck, twice 23
engaging in public masturbation in the subway 24
station in front of female witnesses and grabbing 25
the buttocks of a female rider while threatening 26

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a sexual assault on her. 1
2
The court concluded that Morris’s “criminal record, 3
which spans nearly two decades, establishes his propensity 4
to prey upon helpless women generally, and upon [the ex- 5
girlfriend] in particular. It also serves to demonstrate 6
his utter lack of self control and inability to be 7
rehabilitated.” Morris was sentenced to sixteen 8
indeterminate terms of fifteen years to life in prison, to 9
be served concurrently. If Morris had not been sentenced as 10
a PFO, he would have faced a determinate sentence of between 11
one and one half years and four years on each of the sixteen 12
counts. See N.Y. Penal Law § 70.06(3)-(4). 13
On direct appeal, Morris asserted an Apprendi challenge 14
to his sentence. The Appellate Division rejected that 15
argument as unpreserved, as well as on its merits. See 16
People v. Morris, 21 A.D.3d 251, 251, 800 N.Y.S.2d 6, 7 (1st 17
Dep’t 2005). The New York Court of Appeals denied leave to 18
appeal on September 27, 2005, People v. Morris, 5 N.Y.3d 19
831, 831 (2005), and Morris submitted a petition for a writ 20
of habeas corpus in federal court. On July 30, 2007, the 21
United States District Court for the Southern District of 22
New York denied that petition. Morris, 2007 WL 2200699, at 23

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3 This consolidated appeal originally included five petitioners, two of
whom have been severed from this en banc rehearing (Besser v. Walsh, No. 05-
4375-pr, and Washington v. Poole, No. 07-3949-pr). Besser’s conviction became
final in state court well before the Supreme Court’s decision in Blakely. His
appeal therefore does not present a unique legal question of “exceptional
importance” for the Court, Fed. R. App. P. 35(a)(2), and is effectively
disposed of by our existing precedent, see Brown v. Miller (“Brown II”), 451
F.3d 54, 55 (2d Cir. 2006); Brown v. Greiner (“Brown I”), 409 F.3d 523, 534-35
(2d Cir. 2005). As a result, our decision in Besser v. Walsh, 601 F.3d 163,
169 (2d Cir. 2010), insomuch as it affirmed the judgment of the district court
denying Besser’s petition, remains final with respect to his appeal. In
addition, because Washington predeceased the resolution of his appeal, we
vacated the district court’s judgment and remanded that case with instructions
to dismiss his petition as moot. See United States v. Munsingwear, Inc., 340
U.S. 36, 39-40 (1950); Mfrs. Hanover Trust Co. v. Yanakas, 11 F.3d 381, 383
(2d Cir. 1993).
Page 20 of 62
*1. Morris brought this appeal. 1
2
4. The Consolidated Appeal and Panel Opinion 3
Because the legal question presented by the three 4
petitioners is identical — specifically, whether New York’s 5
recidivist sentencing scheme runs afoul of the Supreme 6
Court’s holding in Blakely v. Washington, 542 U.S. 296 7
(2004) — their appeals were consolidated by our Court. 3
8
The case was argued in front of a three-judge panel on April 9
16, 2008, and on March 31, 2010, the panel answered that 10
question in the negative. Besser v. Walsh, 601 F.3d 163, 11
169 (2d Cir. 2010). According to the panel, the Sixth 12
Amendment principle announced in Blakely “prohibits the type 13
of judicial fact-finding resulting in enhanced sentences 14
under New York’s PFO statute.” Id. We ordered this 15

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4 Although the claims asserted by Portalatin and Morris were not
preserved on direct appeal, thus independently barred as a matter of state
procedural law, the Appellate Division in each case cited to the New York
Court of Appeals decision in People v. Rosen, 96 N.Y.2d 329 (2001), to support
its conclusion that those claims were defaulted. See Morris, 21 A.D.3d at
251, 800 N.Y.S.2d at 7; Portalatin, 18 A.D.3d at 674, 795 N.Y.S.2d at 335. As
our Court has previously observed, the procedural analysis in Rosen was
Page 21 of 62
rehearing en banc and, for the reasons stated below, we 1
conclude that the state courts did not engage in an 2
unreasonable application of clearly established Supreme 3
Court precedent to conclude otherwise. Each of the 4
petitions is therefore denied. 5
6
Discussion 7
A. Standard of Review 8
We review de novo a district court’s decision to grant 9
or deny a habeas corpus petition. See, e.g., Overton v. 10
Newton, 295 F.3d 270, 275 (2d Cir. 2002). Since the 11
enactment of the Antiterrorism and Effective Death Penalty 12
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 13
federal habeas review of state court convictions has been 14
narrowly circumscribed, see Felker v. Turpin, 518 U.S. 651, 15
654 (1996) (acknowledging that AEDPA “work[ed] substantial 16
changes” to the ability of a federal tribunal to entertain a 17
habeas petition). Where, as here, the challenged state 18
court decision was adjudicated on the merits, 4 the writ may 19

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necessarily interwoven with substantive federal law, and therefore a citation
to Rosen for the proposition that a claim is procedurally barred does not
present an “independent and adequate” procedural ground foreclosing review of
the merits in a subsequent habeas proceeding. See Brown II, 451 F.3d at 56-
57.
Page 22 of 62
not issue unless the state court proceeding: 1
(1) resulted in a decision that was contrary to, 2
or involved an unreasonable application of, 3
clearly established Federal law, as determined by 4
the Supreme Court of the United States; or 5
6
(2) resulted in a decision that was based on an 7
unreasonable determination of the facts in light 8
of the evidence presented in the State court 9
proceeding. 10
11
28 U.S.C. § 2254(d). 12
To qualify as “clearly established” for the purposes of 13
federal habeas review, a rule of law must be embodied in the 14
“holdings, as opposed to the dicta,” of Supreme Court 15
precedent. Williams v. Taylor, 529 U.S. 362, 412 (2000). 16
And, for a state court decision to be “contrary to,” or an 17
“unreasonable application of,” that Supreme Court precedent, 18
the decision must: (1) “arrive[] at a conclusion opposite to 19
that reached by [the Supreme Court] on a question of law”; 20
(2) “decide[] a case differently than [the Supreme Court] on 21
a set of materially indistinguishable facts”; or (3) 22
“identif[y] the correct governing legal principle . . . but 23
unreasonably appl[y] that principle to the facts of the 24

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Page 23 of 62
prisoner’s case.” See id. at 412-13. If none of these 1
conditions is met, even if the federal court would have 2
reached a different conclusion on direct review, the 3
petition must be denied. “As we have interpreted [the 4
AEDPA] standard, we decide not whether the state court 5
correctly interpreted the doctrine of federal law on which 6
the claim is predicated, but rather whether the state 7
court’s interpretation was unreasonable in light of the 8
holdings of the United States Supreme Court at the time.” 9
Policano v. Herbert, 507 F.3d 111, 115 (2d Cir. 2007) 10
(internal quotation marks omitted). To that end, “the range 11
of reasonable judgment can depend in part on the nature of 12
the relevant rule. If a legal rule is specific, the range 13
may be narrow . . . As a result, evaluating whether a rule 14
application was unreasonable requires considering the rule’s 15
specificity.” Yarborough v. Alvarado, 541 U.S. 652, 664 16
(2004). 17
18
B. “Clearly Established” Law: Apprendi, Ring, Blakely, and 19
Cunningham 20
21
In the seminal case of Apprendi v. New Jersey, the 22
Supreme Court applied the Sixth Amendment’s guarantee to a 23
trial by an impartial jury to a state law triggering 24

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5 Apprendi was convicted of the crime of possession of a firearm for an
unlawful purpose, punishable under New Jersey law by a term of imprisonment of
five to ten years; following the hate-crime enhancement imposed by the
sentencing judge, a term of ten to twenty years was authorized.
Page 24 of 62
enhanced sentencing ranges based on judicial factfinding. 1
530 U.S. at 490. There, a New Jersey hate-crime statute 2
permitted the trial judge to impose an “extended term” of 3
imprisonment if the judge found, by a preponderance of the 4
evidence, that the defendant committed the crime “with a 5
purpose to intimidate an individual or group” based on 6
certain enumerated characteristics. Id. at 468-69. The 7
Supreme Court struck down the statute as a violation of the 8
Sixth Amendment. Id. at 497. Because the hate-crime 9
statute permitted a sentencing judge to enhance a 10
defendant’s term of incarceration beyond the maximum 11
otherwise authorized for the underlying offense, based on 12
facts found by the judge by a preponderance of the evidence, 13
the defendant was effectively being charged, convicted, and 14
sentenced to a more serious crime without the protections of 15
a jury trial. 5 See id. at 483. The Court in Apprendi set 16
forth the rule and its exception, both now well settled: 17
“Other than the fact of a prior conviction, any fact that 18
increases the penalty for a crime beyond the prescribed 19
statutory maximum must be submitted to a jury, and proved 20

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Page 25 of 62
beyond a reasonable doubt.” Id. at 490 (emphasis added). 1
The exception for prior convictions preserved the 2
Court’s earlier holding in Almendarez-Torres v. United 3
States, which affirmed the constitutionality of the use of 4
recidivism as a judicially determined “sentencing factor” 5
authorizing an enhanced sentence. See 523 U.S. 224, 247 6
(1998). There, the Court rejected the argument that 8 7
U.S.C. § 1326(b)(2) violated a defendant’s right to a jury 8
trial because it authorized an enhanced penalty for any 9
alien caught reentering the United States after being 10
deported, if the initial deportation “was subsequent to a 11
conviction for commission of an aggravated felony.” 8 12
U.S.C. § 1326(b)(2); see id. at 226-28. According to the 13
Court, “the sentencing factor at issue here — recidivism — 14
is a traditional, if not the most traditional, basis for a 15
sentencing court’s increasing an offender’s sentence.” 16
Almendarez-Torres, 523 U.S. at 243 (emphasis added). 17
In reaffirming the constitutionality of the use of 18
recidivism as a judicially-found sentencing factor, the 19
Supreme Court has since emphasized that the existence of 20
procedural safeguards embedded in prior criminal 21
proceedings, as well as the lack of dispute or uncertainty 22

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Page 26 of 62
as to the “fact” of a prior conviction, “mitigate[] the due 1
process and Sixth Amendment concerns otherwise implicated in 2
allowing a judge to determine a ‘fact’ increasing the 3
punishment beyond the maximum of a statutory range.” 4
Apprendi, 530 U.S. at 488. To be sure, “[t]he Court’s 5
repeated emphasis on the distinctive significance of 6
recidivism leaves no question that the Court regarded that 7
fact as potentially distinguishable for constitutional 8
purposes from other facts that might extend the range of 9
possible sentencing.” Jones v. United States, 526 U.S. 227, 10
249 (1999); see also Parke v. Raley, 506 U.S. 20, 26 (1992) 11
(acknowledging that recidivism has formed the basis for 12
sentencing enhancements “dat[ing] back to colonial times,” 13
and that recidivist sentencing laws were “currently . . . in 14
effect in all 50 states”). 15
The rule of Apprendi was later reinforced in Ring v. 16
Arizona, in which the Supreme Court struck down a capital 17
sentencing scheme that vested the trial judge with the 18
discretion to determine the presence or absence of 19
statutorily enumerated aggravating factors required for the 20
imposition of a death sentence. 536 U.S. 584, 588 (2002). 21
Under the Arizona law, a defendant could not be sentenced to 22

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6 We agree with the panel opinion insofar as it acknowledged that the
principle announced in Blakely was not “clearly established” prior to its
disposition. See Besser, 601 F.3d at 181-83; see also Brown II, 451 F.3d at
57 n.1; Brown I, 409 F.3d at 533-34. Because Blakely extended the rule of
Apprendi, instead of merely applying it to a new set of facts, its holding was
not “dictated” by prior Supreme Court precedent, and it therefore does not
apply retroactively on collateral review under the Teague doctrine or AEDPA.
See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion); Mungo v.
Duncan, 393 F.3d 327, 333-34 (2d Cir. 2004). But the Supreme Court has not
definitively stated when the ‘snapshot’ is taken to determine the universe of
clearly established Supreme Court precedent for purposes of AEDPA. Compare
Williams, 529 U.S. at 390 (referring to point at which the “state-court
conviction became final”) (Stevens, J., for the Court), with id. at 412
(focusing on the “time of the relevant state-court decision”) (O’Connor, J.,
for the Court). This poses a question of federal law unique to one of the
petitioners. Because Blakely was issued after the Appellate Division
adjudicated Phillips’s appeal on the merits, but before the New York Court of
Appeals denied him leave to appeal, the time of that snapshot is relevant.
Yet we need not resolve that question today. Even assuming the operative date
to be the latter, for the reasons discussed infra, Phillips’s reliance on
Page 27 of 62
death unless the judge found at least one “aggravating 1
circumstance.” Id. at 592-93. Absent that factual finding, 2
the defendant faced a maximum sentence of life in prison. 3
Id. at 597. The result was therefore presaged by Apprendi: 4
“[b]ecause Arizona’s enumerated aggravating factors operate 5
as ‘the functional equivalent of an element of a greater 6
offense,’ the Sixth Amendment requires that they be found by 7
a jury.” Id. at 609 (quoting Apprendi, 530 U.S. at 494 8
n.19). That Arizona dubbed those findings “aggravating 9
factors” altered the analysis no more than New Jersey’s use 10
of the term “sentencing enhancement,” because “[t]he 11
dispositive question . . . is one not of form, but effect.” 12
Ring, 536 U.S. at 602 (internal quotation marks omitted). 13
In Blakely v. Washington, the Supreme Court expanded 6 on 14

-- 27 of 87 --

Blakely does not alter the resolution of his petition.
Page 28 of 62
the principle announced in Apprendi when it was presented 1
with a challenge to a sentence imposed pursuant to 2
Washington’s Sentencing Reform Act. 542 U.S. at 313-14. 3
Blakely was convicted of “second-degree kidnaping involving 4
domestic violence and use of a firearm,” which carried a 5
statutory maximum sentence of ten years. Id. at 298-99 6
(citing Wash. Rev. Code §§ 9A.40.030(1), 10.99.020(3)(p), 7
9.94A.125). However, pursuant to other statutory 8
provisions, a sentencing judge was required to impose a 9
“standard” sentence of between forty-nine and fifty-three 10
months unless the judge found “substantial and compelling 11
reasons justifying an exceptional sentence.” Id. at 299 12
(quoting Wash. Rev. Code § 9.94A.120(2)). An illustrative 13
list of aggravating factors was set forth in the Act, and 14
the sentencing judge was required to set forth findings of 15
fact and conclusions of law supporting a so-called 16
“exceptional” sentence. Id. at 299. The trial judge 17
decided to give Blakely an exceptional sentence of ninety 18
months, based on the fact that he had acted with “deliberate 19
cruelty,” one of the enumerated grounds for departure. Id. 20
at 300. 21

-- 28 of 87 --

Page 29 of 62
The Supreme Court reversed the sentence. The Court 1
first restated the familiar rule (and exception) of 2
Apprendi: “Other than the fact of a prior conviction, any 3
fact that increases the penalty for a crime beyond the 4
prescribed statutory maximum must be submitted to a jury, 5
and proved beyond a reasonable doubt.” Id. at 301 (emphasis 6
added). But the Blakely court went further, and clarified 7
that the relevant “statutory maximum” may not necessarily 8
coincide with the maximum penalty prescribed by the penal 9
code. Instead, “the ‘statutory maximum’ for Apprendi 10
purposes is the maximum sentence a judge may impose solely 11
on the basis of the facts reflected in the jury verdict or 12
admitted by the defendant.” Id. at 303 (emphasis in 13
original). For Blakely, the relevant “Apprendi maximum” was 14
fifty-three months: Because the judge was powerless to 15
sentence Blakely to anything more than fifty-three months 16
based solely on his conviction and the facts admitted 17
pursuant to his guilty plea, the statutory maximum was “no 18
more 10 years . . . than it was 20 years in Apprendi 19
(because that is what the judge could have imposed upon 20
finding a hate crime) or death in Ring (because that is what 21
the judge could have imposed upon finding an aggravator).” 22

-- 29 of 87 --

Page 30 of 62
Id. at 304. 1
Moreover, Blakely clarified that a sentencing scheme 2
can violate the Sixth Amendment even if those “facts” that a 3
sentencing judge is required to find are not specifically 4
enumerated by statute. Id. at 305. That the list of 5
aggravating circumstances in the Washington statute was 6
“illustrative rather than exhaustive” did not elide the 7
constitutional flaw: “Whether the judge’s authority to 8
impose an enhanced sentence depends on finding a specified 9
fact (as in Apprendi), one of several specified facts (as in 10
Ring), or any aggravating fact (as [in Blakely]),” id., the 11
authority is derivative of an unconstitutional source. 12
Because Blakely’s ninety-month sentence could not have been 13
imposed but for the judge’s finding of “deliberate cruelty,” 14
it was imposed in violation of the Sixth Amendment. Id. 15
Thus, Blakely settled that the Apprendi maximum is the 16
sentence that is authorized based solely on those factual 17
predicates that are found within the constraints of the 18
Sixth Amendment. That is, those facts that are: (1) proven 19
to a jury beyond a reasonable doubt; (2) admitted by the 20
defendant; or (3) findings of recidivism. 21
Lastly, in Cunningham v. California, the Supreme Court 22

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Page 31 of 62
addressed the validity of California’s determinate 1
sentencing law (“DSL”) in light of Apprendi, Ring and 2
Blakely. Cunningham v. California, 549 U.S. 270, 274 3
(2007). Under the DSL, most substantive offenses were 4
assigned three tiers of determinate sentences: a lower-, a 5
middle-, and an upper-term sentence. Id. at 277. But the 6
discretion of the trial judge to select either the upper- 7
term or lower-term sentence was circumscribed: the statute 8
provided that “the court shall order imposition of the 9
middle term, unless there are circumstances in aggravation 10
or mitigation of the crime.” Id. (quoting Cal. Penal Code § 11
1170(b)) (emphasis added). Circumstances in aggravation 12
were defined as “facts which justify the imposition of the 13
upper prison term,” which were to be “established by a 14
preponderance of the evidence” and “stated orally on the 15
record.” Id. at 278 (quoting Cal. Jud. Council Rules 16
4.405(d), 4.420(b), 4.420(e)) (emphasis in original). 17
Hence, the middle term was the default sentence absent 18
further factual findings. 19
Cunningham was convicted of “continuous sexual abuse of 20
a child” under the age of fourteen, for which the prescribed 21
terms were six, twelve, and sixteen years, respectively. 22

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Page 32 of 62
Id. at 275. At a post-trial sentencing hearing, the judge 1
found by a preponderance of the evidence six aggravating 2
circumstances including, inter alia, the “particular 3
vulnerability” of his victim. Id. Cunningham was sentenced 4
to the upper term of sixteen years. Id. at 276. 5
The Supreme Court held that the DSL violated the Sixth 6
Amendment. In rejecting the State’s argument that the 7
Apprendi maximum was the upper-term sentence — for 8
Cunningham, sixteen years — the Court reaffirmed the 9
principle announced in Blakely that a sentence must be fully 10
authorized by factual predicates obtained in compliance with 11
the Constitution: “If the jury’s verdict alone does not 12
authorize the sentence, if, instead, the judge must find an 13
additional fact to impose the longer term, the Sixth 14
Amendment requirement is not satisfied.” Id. at 290. 15
Because the judge was required to make a factual finding in 16
order to impose the upper-term sentence, the Apprendi 17
maximum was not the upper term, but the middle term, and the 18
use of judicial factfinding to impose the upper term 19
violated the Sixth Amendment. Id. at 292-93. 20
Because Cunningham was decided well after the 21
conviction of each petitioner became final, it is urged by 22

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Page 33 of 62
the State that we cannot consider it in our analysis. To 1
the contrary, a Supreme Court holding is generally operative 2
retroactively in a collateral proceeding so long as it does 3
not announce a “new rule” within the meaning of Teague. 4
See, e.g., Beard v. Banks, 542 U.S. 406, 411 (2004). “[A] 5
case announces a new rule when it breaks new ground or 6
imposes a new obligation on the States or Federal 7
Government. To put it differently, a case announces a new 8
rule if the result was not dictated by precedent existing at 9
the time the defendant’s conviction became final.” Teague, 10
489 U.S. at 301 (emphasis added, internal citations 11
omitted). Similarly, under AEDPA, “clearly established 12
federal law” is “law that is dictated by Supreme Court 13
precedent existing at the time the defendant’s conviction 14
became final.” McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 15
2003) (internal quotations and brackets omitted). Thus, if 16
the holding of a case was “dictated” by extant Supreme Court 17
precedent at a particular time, the constitutional rule 18
embodied in that case was necessarily “clearly established” 19
at that time. 20
In that light, we have no trouble concluding that the 21
identification of a Sixth Amendment violation in Cunningham 22

-- 33 of 87 --

7 For the purposes of Teague, a state conviction becomes “final” when
“the availability of direct appeal to the state courts has been exhausted and
the time for filing a petition for a writ of certiorari has elapsed or a
timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S.
383, 390 (1994). The moment of finality for Teague purposes is not to be
confused with the relevant time for determining what federal law is “clearly
established” for purposes of AEDPA. The two concepts are distinct, and we
express no view as to the proper time at which to fix the latter. See supra
note 6.
8 The existence of dissenting opinions in Cunningham does not persuade
us otherwise. See 549 U.S. at 295 (Kennedy, J., dissenting); id. at 310
(Alito, J., dissenting). The dissenters questioned whether California’s DSL
might be susceptible to a remedial construction akin to that afforded the
federal sentencing scheme in Booker, see id. at 297-311 (Alito, J.,
dissenting), and expressed fundamental disagreement with Apprendi itself,
positing a limiting principle to reduce its collateral effects, see id. at
295-97 (Kennedy, J., dissenting). In any event, we do not presume that a non-
unanimous decision by the Supreme Court necessarily establishes a “new rule”
of law. See, e.g., Banks, 542 U.S. at 416 n.5 (“Because the focus of the
Page 34 of 62
was dictated at the time that the petitioners’ convictions 1
became final on direct review. 7 Specifically, the decision 2
in Blakely can be said to have compelled the result in 3
Cunningham, because Blakely left no doubt that the Apprendi 4
maximum is the highest sentence authorized by 5
constitutionally-obtained factual predicates alone: those 6
contained in the jury verdict, those admitted by the 7
defendant, and those respecting recidivism. See Blakely, 8
542 U.S. at 305. Thus, it should have been “apparent to all 9
reasonable jurists,” Lambrix v. Singletary, 520 U.S. 518, 10
527-28 (1997), that the demise of California’s DSL was 11
portended by the holding of Blakely. The State offers no 12
persuasive analytical distinction between the sentencing 13
schemes in Blakely and Cunningham, nor can we discern any. 8
14

-- 34 of 87 --

inquiry is whether reasonable jurists could differ as to whether precedent
compels the sought-for rule, we do not suggest that the mere existence of a
dissent suffices to show that the rule is new.” (emphasis in original)).
Page 35 of 62
See Butler v. Curry, 528 F.3d 624, 636 (9th Cir. 2008) 1
(noting that the Court in Cunningham “simply applied the 2
rule of Blakely to a distinct but closely analogous 3
sentencing scheme”). Because Cunningham did not extend the 4
principle announced in Blakely, but merely applied it to a 5
new set of facts, we hold that Cunningham constitutes 6
“clearly established law” for the petitioners. 7
Nevertheless, for reasons discussed in the remainder of 8
this opinion, we conclude that neither Cunningham nor any 9
other clearly established Supreme Court precedent supports 10
the petitioners’ position. 11
12
C. Apprendi and New York’s PFO Statute 13
1. The operative interpretation: Rosen, Rivera and 14
Quinones 15
16
The New York Court of Appeals has interpreted the PFO 17
statute on three occasions since the Supreme Court’s 18
decision in Apprendi, each time affirming its 19
constitutionality in response to Sixth Amendment challenges. 20
See People v. Quinones, 12 N.Y.3d 116, 131 (2009); People v. 21
Rivera, 5 N.Y.3d 61, 71 (2005); People v. Rosen, 96 N.Y.2d 22

-- 35 of 87 --

Page 36 of 62
329, 336 (2001). Of course, we do not defer to that court’s 1
interpretation of federal law, but we are bound by its 2
construction of New York law in conducting our analysis. We 3
examine each case in turn. 4
In Rosen, the New York Court of Appeals rejected for 5
the first time an Apprendi challenge to New York’s PFO 6
statute. See 96 N.Y.2d at 335. The court acknowledged the 7
familiar rule of Apprendi: “Other than the fact of a prior 8
conviction, any fact that increases the penalty for a crime 9
beyond the prescribed statutory maximum must be submitted to 10
a jury, and proved beyond a reasonable doubt.” Id. at 334 11
(quoting Apprendi, 530 U.S. at 490). But the court went on 12
to hold that the only “fact” necessary to impose a PFO 13
sentence under § 70.10 is the “fact” of recidivism, placing 14
the PFO statute squarely within the exception to the rule: 15
“It is clear from the . . . statutory framework that the 16
prior felony convictions are the sole determin[ant] of 17
whether a defendant is subject to enhanced sentencing as a 18
persistent felony offender.” Id. at 335 (emphasis added). 19
Only after that finding is made will a court look to the 20
defendant’s “history and character,” and the “nature and 21
circumstances of his criminal conduct,” to determine where, 22

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Page 37 of 62
within this now expanded sentencing range, a sentence should 1
be imposed. See id. To that end, “the sentencing court is 2
thus only fulfilling its traditional role — giving due 3
consideration to agreed-upon factors — in determining an 4
appropriate sentence within the permissible statutory 5
range.” Id. 6
In Rivera, the New York Court of Appeals revisited the 7
constitutionality of § 70.10 in light of Blakely and Ring, 8
and repeated its conclusion that recidivism findings are the 9
only necessary factual predicates to impose a PFO sentence. 10
Because “[t]he statute authorizes indeterminate sentencing 11
once the court finds persistent felony offender status,” 12
Rivera, 5 N.Y.3d at 66 (emphasis added), the court held, 13
“the predicate felonies are both necessary and sufficient 14
conditions for imposition of the authorized sentence for 15
recidivism; that is why we pointedly called the predicate 16
felonies the ‘sole’ determinant [in Rosen],” id. at 68 17
(quoting Rosen, 96 N.Y.2d at 335). 18
The court acknowledged that the statute, as written, is 19
susceptible to a construction that would pose an Apprendi 20
problem: 21
We could have decided Rosen differently by 22
reading the statutes to require judicial 23

-- 37 of 87 --

Page 38 of 62
factfinding as to the defendant’s character and 1
criminal acts before he became eligible for a 2
persistent felony offender sentence. If we had 3
construed the statutes to require the court to 4
find additional facts about the defendant before 5
imposing a recidivism sentence, the statutes 6
would violate Apprendi. 7
Id. at 67 (emphasis in original). But, as the court 8
explained, the statutes raise no constitutional concern 9
because 10
we did not read the law that way. Under our 11
interpretation of the relevant statutes, 12
defendants are eligible for persistent felony 13
offender sentencing based solely on whether 14
they had two prior felony convictions. 15
Id. (emphasis in original). 16
In thus reiterating its construction of the PFO statute 17
in Rosen, the court in Rivera clearly construed state law to 18
provide for an expanded range of authorized sentences once a 19
defendant is adjudged a persistent felony offender, at which 20
point the trial judge is directed to exercise discretion in 21
determining where within that newly expanded range to impose 22
a sentence: 23
The statutory language requiring the sentencing 24
court to consider the specified factors and to 25
articulate the reason for the chosen sentence 26
grants defendants a right to an airing and an 27
explanation, not a result. 28
29
. . . . 30

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Page 39 of 62
[A] defendant adjudicated as a persistent felony 1
offender has a statutory right to present 2
evidence that might influence the court to 3
exercise its discretion to hand down a sentence 4
as if no recidivism finding existed, while the 5
People retain the burden to show that the 6
defendant deserves the higher sentence. 7
8
Id. at 68. In other words, according to New York’s highest 9
court, the maximum “range” of available sentences is 10
established once the defendant is proven to have two prior 11
qualifying felonies: The judge may impose a sentence within 12
the range permitted for an A-I felony, or may instead impose 13
a lower sentence within the range permitted for a second 14
felony offense. 15
Rivera also addressed the statute’s “mandatory 16
consideration and articulation” of those factors that a 17
trial judge finds relevant in determining what sentence to 18
impose. Id. at 69. The court interpreted that legislative 19
directive to serve two distinct functions. 20
First, it provides a defendant with notice and an 21
opportunity to respond to those factors that the court deems 22
relevant to the exercise of its sentencing discretion within 23
the ranges authorized by the PFO statute. “The statutory 24
language requiring the sentencing court to consider the 25
specified factors and to articulate the reason for the 26

-- 39 of 87 --

9 “A reversal or a modification of a judgment, sentence or order must be
based upon a determination made . . . [a]s a matter of discretion in the
interest of justice.” N.Y. Crim. Proc. Law § 470.15(3)(c).
Page 40 of 62
chosen sentence grants defendants a right to an airing and 1
an explanation, not a result.” Id. at 68; cf. Rita v. 2
United States, 551 U.S. 338, 356 (2007) (“Confidence in a 3
judge’s use of reason underlies the public’s trust in the 4
judicial institution. A public statement of those reasons 5
helps provide the public with the assurance that creates 6
that trust.”). 7
And second, the judge’s articulation of reasoning 8
facilitates an appellate review function that is distinct 9
from the issue of whether the PFO sentence was lawfully 10
imposed. In New York, intermediate appellate courts are 11
vested with the capacious authority to review and modify 12
criminal sentences in the interests of justice. See N.Y. 13
Crim Proc. Law § 470.15(3)(c). 9 Notably, that oversight 14
power is unrelated to the legality of the sentence; the 15
power to reverse or modify a sentence based on a legal error 16
is addressed separately in the statute. See id. § 17
470.15(3)(a). Even absent legal error, it rests within the 18
discretion of the Appellate Division to modify a sentence in 19
the interest of justice if it is deemed to be “unduly harsh 20

-- 40 of 87 --

10 “Upon modifying a judgment or reversing a sentence as a matter of
discretion in the interest of justice upon the ground that the sentence is
unduly harsh or severe, the court must itself impose some legally authorized
lesser sentence.” N.Y. Crim. Proc. Law § 470.20(6).
Page 41 of 62
or severe.” 10 In that light, Rivera notes, a sentencing 1
judge should set forth those considerations deemed relevant 2
to the imposition of a PFO sentence for the benefit of an 3
appellate court that must later determine whether the 4
sentence was too severe. Rivera explains: 5
[O]nce a defendant is adjudged a persistent 6
felony offender, a recidivism sentence cannot be 7
held erroneous as a matter of law, unless the 8
sentencing court acts arbitrarily or 9
irrationally. 10
11
The court’s opinion is, of course, subject to 12
appellate review, as is any exercise of 13
discretion. The Appellate Division, in its own 14
discretion, may conclude that a persistent felony 15
offender sentence is too harsh or otherwise 16
improvident. In this way, the Appellate Division 17
can and should mitigate inappropriately severe 18
applications of the statute. A determination of 19
that kind, however, is based not on the law but 20
as an exercise of the Appellate Division’s 21
discretion in the interest of justice as reserved 22
uniquely to that Court. 23
24
5 N.Y.3d at 68-69 (emphasis added) (citing N.Y. Crim. Proc. 25
Law § 470.20(6)). Rivera thus concluded that the PFO 26
statute does not violate the principle announced in Blakely, 27
because it simply creates a recidivist sentencing scheme: 28
the only factual predicates necessary for a judge to impose 29

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Page 42 of 62
a class A-I sentence are those respecting the defendant’s 1
criminal history, and it therefore falls within the carve- 2
out of Almendarez-Torres. Id. at 67. 3
Most recently, in Quinones, the New York Court of 4
Appeals reaffirmed the validity of the PFO statute in light 5
of the Supreme Court’s decision in Cunningham, which it 6
found readily distinguishable. It reiterated much of the 7
reasoning of Rivera, concluding that 8
the New York sentencing scheme, after a defendant 9
is deemed eligible to be sentenced as a 10
persistent felony offender, requires that the 11
sentencing court make a qualitative judgment 12
about, among other things, the defendant’s 13
criminal history and the circumstances 14
surrounding a particular offense in order to 15
determine whether an enhanced sentence, under the 16
statutorily prescribed sentencing range, is 17
warranted. Stated differently, New York’s 18
sentencing scheme, by requiring that sentencing 19
courts consider defendant’s “history and 20
character” and the “nature and circumstances” of 21
defendant’s conduct in deciding where, within a 22
range, to impose an enhanced sentence, sets the 23
parameters for the performance of one of the 24
sentencing court’s most traditional and basic 25
functions, i.e., the exercise of sentencing 26
discretion. 27
12 N.Y.3d at 130. 28
29
2. Brown I and Brown II 30
Our Court has examined the PFO statute on two prior 31

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Page 43 of 62
occasions. Each was presented in the posture of a habeas 1
petition, and in both cases we denied relief. 2
In Brown I, we deemed it a reasonable conclusion by the 3
state court that “the judicial finding of at least two 4
predicate felony convictions comported with the dictates of 5
Apprendi,” and noted that the second-prong inquiry called 6
for under the PFO statute “is of a very different sort” from 7
the judicial factfinding proscribed by Apprendi. 409 F.3d 8
at 534. “It is a vague, amorphous assessment of whether, in 9
the court’s ‘opinion,’ ‘extended incarceration and life-time 10
supervision’ of the defendant ‘will best serve the public 11
interest.’” Id. (quoting N.Y. Penal Law § 70.10(2)). In 12
sum, “[w]e [could not] say the New York Court of Appeals 13
unreasonably applied Apprendi when it concluded that this 14
second determination is something quite different from the 15
fact-finding addressed in Apprendi and its predecessors.” 16
Id. at 534-35. 17
In Brown II, we revisited the issue in light of the 18
Supreme Court’s holding in Ring, and found the PFO statute 19
to be distinguishable from the Arizona capital sentencing 20

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11 Although decided in 2006, Brown II did not consider the effects, if
any, of Blakely on the validity of the PFO statute because the petitioner’s
conviction in Brown II became final before Blakely was decided. Brown II, 451
F.3d at 57 n.1.
Page 44 of 62
scheme invalidated in Ring. Brown II, 451 F.3d at 59. 11 We 1
noted that “Ring did not expound upon the rule announced in 2
Apprendi in a way that is significant to the disposition of 3
this case.” Id. “Each case involved a statute that 4
required the sentencing judge to find some specified fact 5
before imposing an enhanced sentence.” Id. Thus, we 6
concluded that it was not unreasonable for the state court 7
to identify a crucial distinction between the 8
unconstitutional factfinding required under the statutes at 9
issue in both Ring and Apprendi, and the discretionary 10
assessment called for by the PFO statute. Id. 11
But neither Brown I nor Brown II speaks to the question 12
that we face today: In light of the New York Court of 13
Appeals’ construction of the PFO statute in Rivera, and the 14
Supreme Court holdings in Blakely and Cunningham, does the 15
PFO statute suffer from a constitutional defect that the 16
state courts were objectively unreasonable to overlook? We 17
hold that it does not. 18
19
20

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Page 45 of 62
D. The New York courts did not engage in an unreasonable 1
application of clearly established Supreme Court 2
precedent in affirming the petitioners’ sentences. 3
Petitioners rely principally on two distinct, though 4
related, arguments to support their contention that the PFO 5
statute requires sentencing judges in New York to engage in 6
unconstitutional factfinding. First, they urge that the 7
step two determination under the PFO statute violates the 8
Sixth Amendment because a sentencing judge is required to 9
make factual findings beyond those respecting the predicate 10
felony convictions before imposing a class A-I sentence. 11
Second, they argue that even if a judge may impose a PFO 12
sentence based solely on the defendant’s predicate felony 13
convictions, the step two determination nonetheless entails 14
unconstitutional factfinding because a judge is required to 15
form a qualitative judgment about the defendant’s criminal 16
history before imposing a PFO sentence, an inquiry that 17
necessarily implicates facts beyond the purview of 18
Almendarez-Torres. 19
Petitioners’ first contention is that the step two 20
determination under the PFO statute (whether a class A-I 21
sentence is warranted) consists of impermissible factfinding 22
under Blakely because it requires the judge to hold a 23

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Page 46 of 62
hearing and set forth findings of fact, beyond those of the 1
prior convictions, before she may impose a PFO sentence. 2
For the reasons that follow, we cannot say that the state 3
courts were unreasonable to reject this argument. 4
Whether the step two determination under the PFO 5
statute entails unconstitutional factfinding hinges not on 6
its nature, but its effect. A core principle has guided 7
this aspect of the Supreme Court’s jurisprudence in the wake 8
of Apprendi: judicial factfinding violates a defendant’s 9
right to a jury trial when it results in a sentence in 10
excess of the Apprendi maximum for a given offense. The 11
Apprendi maximum, in turn, is the apogee of potential 12
sentences that are authorized based on factual predicates 13
obtained in compliance with the Sixth Amendment: those found 14
by the jury, those admitted by the defendant, and findings 15
of recidivism. In contrast, judicial factfinding that is 16
undertaken to select an appropriate sentence within an 17
authorized range — up to and including the Apprendi maximum 18
— does not offend the Sixth Amendment. For “the Sixth 19
Amendment by its terms is not a limitation on judicial 20
power, but a reservation of jury power.” Blakely, 542 U.S. 21
at 308. “The Sixth Amendment question, the Court has said, 22

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Page 47 of 62
is whether the law forbids a judge to increase a defendant’s 1
sentence unless the judge finds facts that the jury did not 2
find (and the offender did not concede).” Rita, 551 U.S. at 3
352 (citing Blakely, Cunningham and Booker) (emphases in 4
original). 5
Our analysis must therefore begin with the PFO statute 6
to determine the Apprendi maximum for each petitioner. That 7
assessment is necessarily guided by the construction placed 8
on the statute by the New York Court of Appeals, which, with 9
some emphasis, has interpreted the statute to authorize a 10
class A-I sentence based on the defendant’s predicate felony 11
convictions alone: “The statute authorizes indeterminate 12
sentencing once the court finds persistent felony offender 13
status,” and “defendants are eligible for persistent felony 14
offender sentencing based solely on whether they had two 15
prior convictions.” Rivera, 5 N.Y.3d at 66, 67 (emphasis in 16
original). Rivera emphasized that “the predicate felonies 17
[are] the ‘sole’ determinant” for whether a judge is 18
authorized to impose a PFO sentence, and that “no additional 19
factfinding beyond the fact of two prior felony convictions 20
is required” to impose the enhanced sentence.” Id. at 68, 70 21
(emphasis in original). 22

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12 Petitioners urge that the PFO statute is constitutionally defective
because the authorized ranges within which a judge has the discretion to
operate are not always continuous. That is, if a sentencing judge decides
that a PFO sentence is not warranted, the judge may not impose just any lesser
sentence. Instead, the judge must impose a sentence authorized for a second
felony offender, which, in some circumstances, might be well below that
authorized for a PFO. See Besser, 601 F.3d at 172 n.7 (referring to this
potential discontinuity as a sentencing “dead-zone”). For example, a
defendant who stands convicted of a class D felony faces a sentence of between
fifteen to twenty-five years and life as a PFO, but generally a maximum of
seven years if the judge elects to sentence him as a second felony offender.
See N.Y. Penal Law §§ 70.04(3)(c), 70.06(3)(d). Our Court is not persuaded
that such a sentencing gap implicates the Sixth Amendment, for there is no
constitutional mandate that a judge’s discretion to reduce sentences exist
unfettered. Nor is such a gap at all unique to the PFO scheme. For instance,
a defendant convicted of his second class B felony drug offense may be
sentenced to either (1) between two and twelve years in prison; or (2)
probation, but the judge is not authorized to sentence the defendant to
anything in between. See N.Y. Penal Law §§ 70.70(3)(b)(i), 70.70(3)(c),
60.04(5). In any event, the Supreme Court has never suggested — much less
clearly held — that a sentencing scheme raises Sixth Amendment concerns simply
because the court’s discretionary reduction of a sentence will place the
Page 48 of 62
In essence, Rivera construed the statutory directive 1
that a sentencing judge articulate the reasons for imposing 2
a class A-I sentence as one of procedure: the explanation 3
itself satisfies the statutory requirement, regardless of 4
whether it contains any facts beyond those respecting the 5
defendant’s predicate felonies. Accordingly, any other 6
facts upon which the sentencing judge chooses to rely cannot 7
properly be understood as “elements” of the underlying 8
offense in terms of Apprendi, because they are not necessary 9
factual predicates to the imposition of the sentence. 10
Instead, they simply inform the judge’s discretion to select 11
an appropriate sentence within those ranges authorized by 12
statute. 12
13

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defendant in a significantly lower sentencing range. See Williams v. Artuz,
237 F.3d 147, 153-54 (2d Cir. 2001) (habeas relief barred where “no Supreme
Court holding” supporting the petitioner’s claim).
Page 49 of 62
Petitioners assert that Rivera’s construction of the 1
PFO statute is belied by its text, specifically the 2
provision stating that “[s]uch sentence may not be imposed 3
unless . . . [the court] is of the opinion that the history 4
and character of the defendant and the nature and 5
circumstances of his criminal conduct [warrant the 6
sentence.].” N.Y. Crim. Proc. Law § 400.20(1) (emphasis 7
added). If, as petitioners contend, those findings as to 8
the defendant’s history and character are factual predicates 9
essential to the imposition of the A-I sentence, the PFO 10
statute would violate the Sixth Amendment. The New York 11
Court of Appeals acknowledged as much: “If we had construed 12
the statutes to require the court to find additional facts 13
about the defendant before imposing a recidivism sentence, 14
the statutes would violate Apprendi.” Rivera, 5 N.Y.3d at 15
67. But, as we have already observed, the court plainly 16
stated that it “did not read the law that way.” Id. 17
Whether our Court agrees or disagrees with the Court of 18
Appeals’ construction of New York law is of no moment. As 19
the Supreme Court has long held, “state courts are the 20

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Page 50 of 62
ultimate expositors of state law,” Mullaney v. Wilbur, 421 1
U.S. 684, 691 (1975), and “[n]either this Court nor any 2
other federal tribunal has any authority to place a 3
construction on a state statute different from the one 4
rendered by the highest court of the State.” Johnson v. 5
Fankell, 520 U.S. 911, 916 (1997). More, it would be 6
perverse for a federal court to discourage a state court 7
from searching for “every reasonable construction” of a 8
state statute to “save [the] statute from 9
unconstitutionality.” Skilling v. United States, 130 S. Ct. 10
2896, 2929-30 & n.41 (2010) (quoting Hooper v. California, 11
155 U.S. 648, 657 (1895); see also United States v. 12
Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (collecting 13
cases discussing rule of constitutional avoidance); In re 14
Jacob, 86 N.Y.2d 651, 667 (1995) (same). 15
Of course, we recognize that we are bound only by the 16
New York Court of Appeals’ interpretation of what the terms 17
of the statute mean, and that we are not similarly 18
constrained by that court’s pronouncement of the statute’s 19
“operative effect” for constitutional purposes. See 20
Wisconsin v. Mitchell, 508 U.S. 476, 483-84 (1993). Yet the 21
decision in Rivera was not merely a characterization of the 22

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Page 51 of 62
PFO statute’s practical operation, but an exposition of its 1
terms. Under Rivera, the statute authorizes a class A-I 2
sentence once the court establishes the defendant’s status 3
as a persistent felony offender, and a judge may impose an 4
enhanced sentence based on the defendant’s criminal history 5
alone. Rivera, 5 N.Y.3d at 66, 70-71. 6
We must presume that the New York Court of Appeals 7
meant what it said: the statutory directive to consider the 8
history and character of the defendant, and the nature and 9
circumstances of his crime, is a procedural requirement that 10
is only triggered once a judge is already authorized to 11
impose the class A-I sentence. According to Rivera, it 12
would not be an error of law for a sentencing judge to 13
impose a class A-I sentence based solely on the recidivism 14
findings alone. “Once a defendant is adjudged a persistent 15
felony offender, a recidivism sentence cannot be held 16
erroneous as a matter of law, unless the sentencing court 17
acts arbitrarily or irrationally.” Id. at 68. Lower courts 18
in New York, as they must, consistently rely upon that 19
construction in sentencing. Compare People v. Bazemore, 52 20
A.D.3d 727, 728, 860 N.Y.S.2d 602, 603 (2d Dep’t 2008) 21
(noting that lower court’s “conclusory recitation” 22

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Page 52 of 62
insufficient to comply with procedural requirements of the 1
PFO statute), and People v. Murdaugh, 38 A.D.3d 918, 919-20, 2
833 N.Y.S.2d 557, 559 (2d Dep’t 2007) (same), with People v. 3
Tucker, 41 A.D.3d 210, 212, 839 N.Y.S.2d 15, 18 (1st Dep’t 4
2007) (affirming PFO sentence based solely on lower court’s 5
evaluation of defendant’s criminal history), and People v. 6
Young, 41 A.D.3d 318, 319-20, 838 N.Y.S.2d 550, 551-52 (1st 7
Dep’t 2007) (same). 8
Petitioners also observe that in Rivera, the Court of 9
Appeals reaffirmed that at step two of New York’s PFO 10
scheme, “the People retain the burden to show that the 11
defendant deserves a higher sentence,” see 5 N.Y.3d at 68, 12
and argue that this shows that the effect of the statute is 13
to require additional factfinding before an A-I sentence may 14
be lawfully imposed. We disagree with this 15
characterization, for again, it misconstrues the effect of 16
the facts found at this step. Rivera’s reference to the 17
State’s “burden” notwithstanding, the court made clear that 18
“Criminal Procedure Law § 400.20, by authorizing a hearing 19
on facts relating to the defendant’s history and character, 20
does not grant defendants a legal entitlement to have those 21
facts receive controlling weight in influencing the court’s 22

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Page 53 of 62
opinion.” Id. (emphasis added); see also id. (indicating 1
similarly that “a defendant adjudicated as a persistent 2
felony offender has a statutory right to present evidence 3
that might influence the court to exercise its discretion to 4
hand down a sentence as if no recidivism finding existed” 5
(emphasis added)). 6
Thus, while the meaning of Rivera’s reference to the 7
State’s “burden” is not entirely clear — it might, for 8
example, mean that the State is obligated to prove by a 9
preponderance of the evidence any of the facts it introduces 10
in an attempt to persuade the sentencing judge, or might 11
merely refer in an informal sense to the notion that it 12
typically will be incumbent upon the State to oppose 13
sentencing arguments advanced by defendants — the Court of 14
Appeals was emphatic that the statute does not impose an 15
overarching evidentiary burden upon the State that must be 16
satisfied before the sentencing court may lawfully impose an 17
A-I sentence. In other words, although the sentencing 18
judge, in considering whether to impose the statutorily 19
authorized A-I sentence or instead a lesser sentence, “may 20
implicitly rule on those facts he deems important to the 21
exercise of his sentencing discretion,” the facts in 22

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13 Indeed, as construed by the New York Court of Appeals, the step two
inquiry under the PFO statute might well be analogized to the judicial
consideration of statutory factors that Congress asks of district court judges
in the federal system. See 18 U.S.C. § 3553(a). Although § 3553(a) applies
to all federal sentences, whereas the challenged step two inquiry applies only
to PFO sentences, that distinction does not bear on our Sixth Amendment
analysis. Under both schemes the required discretionary assessment will have
an impact on the sentence ultimately imposed, but not an unconstitutional
impact, because the court is merely “finding facts” to aid in the selection of
an appropriate sentence within a pre-determined range authorized by statute.
And “[w]e have never doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory range.” United States v.
Booker, 543 U.S. 220, 233 (2005). Just as “[i]n a system that says the judge
may punish burglary with 10 to 40 years, every burglar knows he is risking 40
years in jail,” Blakely, 542 U.S. at 309, a third-time felon in New York knows
that he is risking twenty-five years to life in prison.
Page 54 of 62
question “do not pertain to whether the defendant has a 1
legal right to a lesser sentence,” a distinction that “makes 2
all the difference insofar as judicial impingement upon the 3
traditional role of the jury is concerned.” Blakely, 542 4
U.S. at 309 (emphasis in original). 5
In sum, because the New York Court of Appeals has 6
interpreted step two of the PFO sentencing scheme as a 7
procedural requirement that informs only the sentencing 8
court’s discretion, the New York courts were not 9
unreasonable to conclude that this consideration is unlike 10
the factfinding requirements invalidated in Blakely and 11
Cunningham. 13 Here, under the New York Court of Appeals’ 12
construction, the Apprendi maximum for each petitioner was 13
fixed at that of a class A-I felony once the recidivism 14
findings were established: an indeterminate sentence, with a 15

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Page 55 of 62
minimum term of between fifteen and twenty-five years, and a 1
maximum term of life in prison. See N.Y. Penal Law § 2
70.10(2). Under Rivera, any facts that the sentencing judge 3
considered beyond those respecting recidivism do not 4
implicate the Sixth Amendment, for they did not — and could 5
not — lead to a sentence in excess of that Apprendi maximum. 6
Petitioners’ first argument therefore does not persuade us 7
that habeas relief is warranted. 8
Petitioners’ second argument also focuses on the step 9
two determination required under the PFO statute. They 10
contend that — notwithstanding the Court of Appeals’ 11
authoritative construction in Rivera — the PFO statute 12
continues to require unconstitutional factfinding, because 13
even assuming the predicate felony convictions are 14
sufficient to authorize a PFO sentence, the mere fact of 15
those convictions does not suffice. Instead, a sentencing 16
judge must form an opinion about the nature of those 17
convictions before imposing a PFO sentence, an endeavor that 18
necessarily entails factfinding beyond the scope of 19
Almendarez-Torres. That is, a court is required to consider 20
subsidiary facts and surrounding circumstances of those 21
convictions to arrive at a conclusion whether “extended 22

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Page 56 of 62
incarceration and life-time supervision will best serve the 1
public interest.” N.Y. Penal Law § 70.10; see Rivera, 5 2
N.Y.3d at 70-71 (noting that a sentencing judge would be 3
authorized to impose a class A-I sentence with no further 4
factual findings, “[i]f, for example, a defendant had an 5
especially long and disturbing history of criminal 6
convictions”); see also Young, 41 A.D.3d at 320, 838 7
N.Y.S.2d at 552 (affirming sentence imposed based on 8
“court’s discretionary evaluation of the seriousness of 9
defendant’s criminal history”). Petitioners urge that this 10
assessment is a factfinding endeavor under Blakely, and must 11
therefore be reserved for a jury. 12
Assuming — without deciding — that petitioners are 13
correct in reading New York law to require a sentencing 14
judge to consider subsidiary facts respecting a defendant’s 15
criminal history before imposing a PFO sentence, we are not 16
persuaded that such consideration equates to judicial 17
“factfinding” in violation of Blakely. At bottom, 18
petitioners urge that the Almendarez-Torres exception to the 19
rule of Apprendi should be read narrowly (and the rule of 20
Blakely broadly) to forbid a sentencing judge from forming 21
an opinion about a defendant’s criminal history, based on 22

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14 The range of opinions authored by the Supreme Court in Shepard v.
United States, 544 U.S. 13 (2005), bespoke the lingering uncertainty
surrounding the recidivism exception, and suggested that the Court might be
poised to reconsider its holding in Almendarez-Torres. See id. at 25 (Souter,
J., for a plurality) (questioning whether facts relating to a defendant’s
prior conviction could be considered by a sentencing judge in light of
Apprendi); id. at 27-28 (Thomas, J., concurring in part and concurring in the
judgment) (opining that the recidivism exception to Apprendi had been eroded
and should be overruled); id. at 37-38 (O’Connor, J., dissenting) (challenging
the plurality’s purported extension of Apprendi, and defending the traditional
use of recidivism as a sentencing factor). In the intervening five years,
however, the Court has not undertaken such a reconsideration of Almendarez-
Torres, much less reversed or even limited its holding. Thus, in our own
review of federal sentences, we have concluded that, despite the reservations
expressed in Shepard, “Almendarez-Torres continues to bind this court in its
application of Apprendi.” United States v. Snype, 441 F.3d 119, 148 (2d Cir.
2006); see also United States v. Bonilla, - - - F.3d - - -, No. 09-1799-cr,
2010 WL 3191402, at *8-9 (2d Cir. Aug. 13, 2010) (rejecting, as frivolous,
contention that prior conviction exception of Almendarez-Torres should be
overturned).
Page 57 of 62
facts underlying those prior convictions, before imposing a 1
recidivism sentence. Yet there is no clear holding of the 2
Supreme Court to command such a result. 14 “Given the lack of 3
holdings from th[e] [Supreme Court]” construing the 4
recidivism exception as narrowly as petitioners urge, “it 5
cannot be said that the state court unreasonably applied 6
clearly established federal law.” Carey v. Musladin, 549 7
U.S. 70, 77 (2006) (internal alterations and quotation marks 8
omitted); see also Lockyer v. Andrade, 538 U.S. 63, 72 9
(2003) (declining to find a legal principle “clearly 10
established” in light of Supreme Court precedents that “have 11
not been a model of clarity,” and “have not established a 12
clear or consistent path for courts to follow”). 13

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Page 58 of 62
Given the lack of guidance as to the precise scope of 1
the recidivism exception, it is unsurprising that the 2
exception does not enjoy uniform application among appellate 3
courts charged with reviewing federal sentences. For 4
example, some courts, including our own, have held that the 5
recidivism exception encompasses such “related facts” as the 6
type and length of sentence imposed, and whether the 7
defendant was on probation when the crime was committed. 8
United States v. Cordero, 465 F.3d 626, 632-33 n.33 (5th 9
Cir. 2006); see also United States v. Corchado, 427 F.3d 10
815, 820 (10th Cir. 2005); United States v. Williams, 410 11
F.3d 397, 402 (7th Cir. 2005); United States v. Fagans, 406 12
F.3d 138, 141-42 (2d Cir. 2005). In contrast, the Ninth 13
Circuit has concluded that the defendant’s probationary 14
status at the time of the crime does not fall within the 15
recidivism exception. See Butler v. Curry, 528 F.3d 624, 16
636 (9th Cir. 2008). Yet, notably, the Ninth Circuit has 17
also acknowledged that the principle remains unsettled, and 18
accordingly has refused to grant habeas relief when a state 19
court has concluded that probationary status may 20
constitutionally be relied upon as a recidivism-based 21
sentence enhancement. Kessee v. Mendoza-Powers, 574 F.3d 22

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Page 59 of 62
675, 679 (9th Cir. 2009). 1
So too here. It might well be constitutionally 2
significant whether a sentencing judge is required to find, 3
for example, that a defendant’s criminal history is 4
“especially violent” before imposing a sentence, or whether, 5
as in New York, a sentencing judge simply must find that the 6
nature of his criminal history justifies “extended 7
incarceration and life-time supervision.” Or, perhaps after 8
Blakely and Cunningham, it does not matter. The Supreme 9
Court may answer that question at some future time. But, if 10
our Court cannot divine a clear answer from the Court’s 11
existing holdings, AEDPA prevents us from faulting a state 12
court for selecting one reasonable conclusion over another. 13
For the time being, the recidivism exception remains, and 14
the Supreme Court has yet to assess a statute in light of 15
Blakely that tethers the authorization for an enhanced 16
sentence solely to findings respecting recidivism. We 17
therefore cannot say that the state courts unreasonably 18
applied clearly established Supreme Court precedent in 19
concluding that the PFO statute is simply different in kind 20
from those invalidated in Blakely and Cunningham. 21
22

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Page 60 of 62
* * * 1
To conclude, the state courts were not unreasonable to 2
discern an appreciable distinction between the PFO statute 3
and those struck down in Blakely and Cunningham: the 4
Washington and California statutes stripped sentencing 5
judges of any discretion to impose an elevated sentence 6
unless they found an additional fact not embodied in the 7
jury verdict. In Blakely, a defendant found guilty of 8
kidnaping was entitled to a sentence of forty-nine to fifty- 9
three months, but for an additional finding of “substantial 10
and compelling reasons justifying an exceptional sentence.” 11
542 U.S. at 299. In Cunningham, a defendant found guilty of 12
continuous sexual abuse of a child was entitled to a 13
sentence of twelve years, but for an additional finding of 14
“circumstances in aggravation.” 549 U.S. at 277. 15
In contrast, the PFO statute — as interpreted by the 16
New York Court of Appeals — creates a recidivist sentencing 17
scheme in which the only factual predicates necessary to 18
impose the enhanced sentence relate to the defendant’s 19
criminal history. Unlike in Blakely and Cunningham, 20
recidivism findings are the touchstone: the predicate 21
felonies alone expand the indeterminate sentencing range 22

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Page 61 of 62
within which the judge has the discretion to operate, and 1
that discretion is cabined only by an assessment of 2
defendant’s criminal history. And the Supreme Court has not 3
yet sounded the death knell for recidivist sentencing laws, 4
nor do its precedents counsel the extent to which a 5
sentencing judge may consider facts respecting recidivism to 6
guide the exercise of her sentencing discretion. The 7
petitions are therefore denied. 8
9
Conclusion 10
For the foregoing reasons, the order granting the writ 11
of habeas corpus to Petitioner-Appellee Portalatin is 12
R EVERSED . The orders denying the writ to Petitioner- 13
Appellants Morris and Phillips are A FFIRMED . The panel 14
opinion, 601 F.3d 163, is hereby V ACATED . 15
16
17
18
19
20
21
22

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Page 62 of 62
Appendix A. 1
New York Penal Law § 70.10: 2 1. Definition of persistent felony offender. 3 (a) A persistent felony offender is a person, other than a 4 persistent violent felony offender as defined in section 5 70.08, who stands convicted of a felony after having 6 previously been convicted of two or more felonies, as 7 provided in paragraphs (b) and (c) of this subdivision. 8 (b) A previous felony conviction within the meaning of 9 paragraph (a) of this subdivision is a conviction of a 10 felony in this state, or of a crime in 11 another jurisdiction, provided: 12 (i) that a sentence to a term of imprisonment in 13 excess of one year, or a sentence to death, was 14 imposed therefor; and 15 (ii) that the defendant was imprisoned under sentence 16 for such conviction prior to the commission of the 17 present felony; and 18 (iii) that the defendant was not pardoned on the 19 ground of innocence; and 20 (iv) that such conviction was for a felony offense 21 other than persistent sexual abuse, as defined in 22 section 130.53 of this chapter. 23 (c) For the purpose of determining whether a person has two 24 or more previous felony convictions, two or more convictions 25 of crimes that were committed prior to the time the 26 defendant was imprisoned under sentence for any of such 27 convictions shall be deemed to be only one conviction. 28 2. Authorized sentence. When the court has found, pursuant to the 29 provisions of the criminal procedure law, that a person is a 30 persistent felony offender, and when it is of the opinion that the 31 history and character of the defendant and the nature and 32 circumstances of his criminal conduct indicate that extended 33 incarceration and life-time supervision will best serve the public 34 interest, the court, in lieu of imposing the sentence of 35 imprisonment authorized . . . for the crime of which such person 36 presently stands convicted, may impose the sentence of 37 imprisonment authorized by that section for a class A-I felony. 38 In such event the reasons for the court’s opinion shall be set 39 forth in the record. 40

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1
Portalatin v. Graham 1 07-1599 2
3
WINTER, Circuit Judge, with whom Judges Pooler and Sack concur, 4
5
dissenting: 6
7
I respectfully dissent. My dissent assumes familiarity with 8
the panel opinion, Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), 9
and will be limited to a response to Judge Wesley’s opinion. 10
These appeals concern petitions for writs of habeas corpus 11
in which the petitioners challenge the constitutionality of what 12
actually happened in their sentencing proceedings. Petitioners 13
claim that the sentencing judges enhanced petitioners’ sentences 14
beyond the standard maximum for their crimes of conviction based 15
on the sentencing judges’ findings of facts that were not found 16
by a jury, admitted by petitioners, or sheltered by the Supreme 17
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 18
224, 247 (1998), which held that the fact of prior conviction 19
need not be treated as an element of criminal offense. That some 20
kind of factfinding occurred with regard to each of the 21
petitioners has not been seriously questioned, and that extensive 22
factfinding occurred in one of the cases was expressly conceded 23
in the in banc oral argument by the Solicitor General of New 24

-- 63 of 87 --

1Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d. Cir. 2009) (“When the
state court has adjudicated the merits of the petitioner’s claim, we apply the
deferential standard of review established by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), under which we may grant a writ of habeas corpus only if
the state court’s adjudication ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law as determined by the Supreme Court of
the United States.’” (quoting 28 U.S.C. § 2254(d))).
2Apprendi v. New Jersey, 530 U.S. 466 (2000).
3To dispel any doubt that the original panel had an accurate view of New York
law, I set out the details of the original panel’s understanding of sentencing under
the PFO statute in Exhibit A to this opinion. To avoid any claim that I am misstating
the various steps or legal effects of PFO sentencing, the Appendix cites as support,
where pertinent, the PFO statute, People v. Rivera, 5 N.Y.3d 61 (N.Y. 2005), and the
majority opinion.
2
York. My colleagues rely heavily upon AEDPA deference 1 but 1
identify only one constitutional argument dispositive of the 2
claims of all petitioners -- regarding the applicable maximum 3
sentences for Apprendi 2 purposes -- and that one has been 4
specifically rejected by the Supreme Court in Cunningham v. 5
California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 6
U.S. 296 (2004). Except for that discussion, my colleagues’ 7
opinion never responds directly to petitioners’ claims and 8
proffers no other identifiable constitutional theory to which 9
AEDPA deference can be given. Instead, it undertakes an abstract 10
discussion of New York Penal Law Section 70.10 and New York 11
Criminal Procedure Law Section 400.20, New York’s Persistent 12
Felony Offender (“PFO”) sentencing statute, that demonstrates 13
only that the PFO statute can be applied in a constitutional 14
manner. However, these appeals are not facial challenges to the 15
statute but rather to the manner in which the statute was 16
actually applied to each petitioner. 3
17

-- 64 of 87 --

4There is a difficulty in analyzing the various sentencing proceedings arising
from the emergence of the Almendarez-Torres issue at the in banc stage. None of the
sentencing courts believed it necessary to distinguish between facts relating to the
predicate PFO convictions that might be sheltered under Almendarez-Torres and other
facts relating to the character, history, and criminal conduct of the particular
defendant. The original panel remanded for an examination of harmless error claims.
Besser, 601 F.3d at 188-89. That remand would have included claims that some facts
might be sheltered under the Almendarez-Torres umbrella.
3
The dissent will first discuss the sentencings of the three 1
remaining petitioners (five petitioners were involved in the 2
panel proceeding). It will then turn to the majority opinion 3
with regard to the four issues at stake in this proceeding, 4
giving full AEDPA deference to all relevant arguments: (i) what 5
are the maximum sentences applicable to petitioners for Apprendi 6
purposes; (ii) whether judicial factfinding altered the maximum 7
sentence applicable to each petitioner; (iii) if so, whether such 8
judicial factfinding was permissible under Almendarez-Torres; and 9
(iv) whether all of the judicial factfinding was permissible 10
because it involved traditional sentencing considerations. 11
a) The Petitioners’ Sentencings 12
The sentencings of the three petitioners represent a fair 13
cross-section of the various issues at stake in this in banc. 4
14
1) Phillips 15
Phillips’ sentencing was the simplest. He was convicted of 16
a Class C felony, robbery in the second degree, carrying a 17
maximum sentence as a second felony offender of 15 years. N.Y. 18
Penal Law § 70.06(3)(b). Phillips had six prior felony 19
convictions: two burglaries in the third degree; grand larceny 20

-- 65 of 87 --

5Conclusory statements such as these made by the sentencing court have been
treated by the Supreme Court as findings of fact. See Cunningham v. California, 549
U.S. 270, 277, 288-89 (2009) (treating sentencing judge’s finding of “circumstances in
aggravation or mitigation of the crime” as findings of fact); Blakely v. Washington,
542 U.S. 296, 299, 303-04 (2004) (treating sentencing judge’s finding of “substantial
and compelling reasons justifying an exceptional sentence” as findings of fact).
4
in the fourth degree; attempted robbery in the second degree; 1
attempted robbery in the third degree; and attempted criminal 2
sale of a controlled substance in the third degree. The 3
sentencing court found: 4
Defendant has demonstrated time and again, 5
throughout his entire adult life, that he 6
cannot be trusted to function normally in 7
society and that he is unwilling and unable 8
to rehabilitate himself. The history and 9
character of defendant and the nature and 10
circumstances of his criminal conduct are 11
such that extended incarceration and lifetime 12
supervision are warranted to best serve the 13
public interest. CPL 400.20(1); PL 70.10. 14
15
This case arguably raises serious Almendarez-Torres issues. The 16
principal document in the record apparently is the prosecution’s 17
PFO motion containing Phillips’ legal history. The conclusory 18
statement of the sentencing court, while clearly a finding of 19
fact for Apprendi purposes, 5 may have been limited to inferences 20
drawn solely from the predicate PFO convictions and felony of 21
conviction and arguably fall within an interpretation of 22
Almendarez-Torres entitled to AEDPA deference. The Almendarez- 23
Torres issue, if raised by the prosecutors, could have been 24
addressed by the district court pursuant to the original panel 25
remand. 26

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5
2) Portalatin 1
Portalatin was convicted of second degree kidnapping and 2
first degree robbery, both Class B felonies carrying a maximum of 3
25 years as a second felony offender. N.Y. Penal Law § 4
70.06(3)(a). Portalatin’s sentencing involved similar but 5
somewhat more extensive conclusions, including some facts outside 6
any reasonable interpretation of Almendarez-Torres. The 7
prosecution moved by letter for PFO sentencing based on two prior 8
felony convictions, attempted burglary in the second degree and 9
attempted criminal sale of a controlled substance in the fifth 10
degree. The sentencing court also had before it the legal 11
history of Portalatin as well as a report prepared for the 12
defense that covered virtually all aspects of his life. The 13
court concluded: 14
[L]ooking back on the history of this 15
defendant, and having read these reports 16
. . . . [H]e began his criminal career in 17
1989, and we have beginning from that point 18
on, the failure to take advantage of 19
opportunities that might have provided drug 20
treatment, that might have in some way 21
assisted him. 22
We have bench warrants repeatedly. We 23
have parole revocations, and repeated parole 24
revocations to the extent that it’s only when 25
these sentences maxed out that he finally is 26
released, and no sooner is he released than 27
there is a new crime. 28
. . . . 29
He certainly has earned a persistent 30
adjudication as I look at this Rap sheet and 31
the circumstances of this offense and other 32
offenses, and I’m going to adjudicate him a 33
persistent felony offender. 34

-- 67 of 87 --

6
1
Some of the facts found may be sheltered by an arguably 2
reasonable interpretation of Almendarez-Torres. However, missed 3
opportunities for drug treatment and the issuance of bench 4
warrants may not be facts relating to PFO convictions, although 5
reliance on them may well have been harmless. All these matters 6
could have been resolved on the original panel remand. 7
3) Morris 8
Morris’s sentencing involved extensive factfinding. After 9
his conviction on 16 counts of criminal contempt for violating 10
orders prohibiting contact with his girlfriend, Class E felonies, 11
the prosecutor entered evidence of convictions for (i) attempted 12
robbery in the third degree; (ii) grand larceny in the fourth 13
degree and attempted criminal possession of a controlled 14
substance in the fifth degree (deemed in the aggregate to be one 15
conviction pursuant to N.Y. Penal Law Section 70.10(1)(c)); and 16
(iii) robbery in the third degree. This evidence qualified 17
Morris as a PFO. The pertinent choice in Morris’s case was 18
between a Class E felony second offender sentence with a maximum 19
of 4 years and a Class A-I sentence with a maximum of life. N.Y. 20
Penal Law § 70.06(3)(d). 21
After an adjournment of the sentencing hearing to obtain a 22
psychiatric examination of Morris, the sentencing judge 23
considered the evidence. This consideration included, inter 24
alia, numerous documents such as the psychiatric evaluation, 25

-- 68 of 87 --

7
tapes of 911 calls from Morris’s girlfriend or her neighbors, 1
evidence of numerous instances of obscene behavior on subways, 2
numerous instances of violence or assault on subways, 3
contemptuous behavior in court, contemptuous behavior toward a 4
female prison guard, and a negative report on Morris from the 5
Department of Probation. The defense evidence consisted largely 6
of his girlfriend’s testimony as to his lack of violent behavior. 7
After hearing argument by counsel, the court concluded that 8
Morris should receive a Class A-I sentence. The court rendered 9
extensive written findings of fact formally labeled “Findings of 10
Fact.” The court made a negative credibility finding with regard 11
to the girlfriend’s testimony. The court credited the 12
prosecution’s evidence described above and found that Morris 13
exhibited a propensity for violence, “a disturbing lack of self- 14
control and a pattern of abusive and contemptuous behavior, 15
particularly toward women.” It concluded that the “People . . . 16
met their burden of establishing by a preponderance of the 17
evidence that a sentence [as a Class A-I felon] is warranted.” 18
The sentencing was upheld on appeal. 19
The record of Morris’s sentencing indicates consideration by 20
the court of many actions and characteristics of Morris, and 21
conflicting testimony, that are not related to or inferences 22
drawn from his prior felonies or felony of conviction. The 23
record also indicates that the sentencing judge engaged in what 24

-- 69 of 87 --

8
he deemed to be factfinding to choose between the second offender 1
Class E felony sentence with a four year maximum, and a Class A-I 2
sentence with a minimum of 15 years and maximum of life. 3
b) The Majority Opinion 4
Blakely/Cunningham prohibit a sentencing court from finding 5
facts that were not found by a jury, admitted by a defendant, or 6
sheltered by Almendarez-Torres, where such facts are relied upon 7
to elevate the otherwise applicable maximum sentencing range to 8
one with a higher maximum. Cunningham v. California, 549 U.S. 9
270, 282-83 (2007); Blakely v. Washington, 542 U.S. 296, 303-04 10
(2004). Each petitioner argues that his sentencing involved such 11
factfinding and altering of the otherwise applicable maximum 12
sentence. 13
My colleagues argue that: (i) the maximum sentence 14
applicable to all petitioners was, for Apprendi purposes, life; 15
(ii) once two prior felony convictions are shown, the “second 16
step” need not involve dispositive factfinding; (iii) a 17
reasonable interpretation of Almendarez-Torres, if AEDPA 18
deference is shown, allows the sentencing court to find facts 19
relating to the predicate felonies sufficient to impose a Class 20
A-I sentence; and (iv) nothing occurs under the PFO statute that 21
is not recognized as discretionary sentencing using traditional 22
factors. I deal with each argument seriatim. 23
1) Giving All Due AEDPA Deference, What is the Apprendi 24

-- 70 of 87 --

6My colleagues’ opinion states: “[U]nder the New York Court of Appeals’
construction, the Apprendi maximum for each petitioner was fixed at that of a class A-
I felony once the recidivism findings were established: an indeterminate sentence,
with a minimum term of between fifteen and twenty-five years, and a maximum term of
life in prison. Under Rivera, any facts that the sentencing judge considered beyond
those respecting recidivism do not implicate the Sixth Amendment, for they did not --
and could not -- lead to a sentence in excess of that Apprendi maximum.” Maj. op. 54
(internal citation omitted).
7My colleagues quoted Blakely as saying 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.” Maj. op. 29
(quoting Blakely, 542 U.S. at 303). They also observed that this “‘statutory maximum’
may not necessarily coincide with the maximum penalty prescribed by the penal code.”
Id.
9
Maximum for Each Petitioner? 1
My colleagues join the New York Court of Appeals in 2
reasoning that because life imprisonment is the highest sentence 3
to which a defendant is exposed under the PFO statute, life 4
imprisonment is the maximum sentence for Apprendi purposes. 6 If 5
my colleagues are correct that life imprisonment is the maximum 6
sentence to which the petitioners were subject for Apprendi 7
purposes, then I would agree that the petitions must be denied. 8
But I do not agree. 9
As my colleagues’ own description of Blakely indicates, 7
10
precisely the same argument was made in Blakely and rejected by 11
the Supreme Court, which stated: 12
The State nevertheless contends that there 13
was no Apprendi violation because the 14
relevant “statutory maximum” is not 53 15
months, but the 10-year maximum for class B 16
felonies in § 9A.20.021(1)(b). It observes 17
that no exceptional sentence may exceed that 18
limit. See § 9.94A.420. Our precedents make 19
clear, however, that the “statutory maximum” 20
for Apprendi purposes is the maximum sentence 21

-- 71 of 87 --

10
a judge may impose solely on the basis of the 1
facts reflected in the jury verdict or 2
admitted by the defendant. 3
4
Blakely, 542 U.S. at 303. That the Court directly ruled on this 5
issue is underlined by Justice O’Connor’s dissent. Id. at 318 6
(“Under the majority’s approach, any fact that increases the 7
upper bound on a judge’s sentencing discretion is an element of 8
the offense.”) (O’Connor, J., dissenting). 9
Each petitioner concedes that he was “eligible for,” 10
“subject to,” etc., a Class A-I sentence solely because of his 11
prior multiple felonies. Each also argues that without the 12
findings of facts as to which the prosecution bore the burden of 13
proof and that were not found by the jury (discussed in the next 14
subsection), he had to be sentenced within a range carrying a 15
lower maximum. No party disputes the existence of a choice 16
between sentencing within a range with a lower maximum and 17
sentencing to a Class A-I term. Blakely is therefore directly 18
on point. 19
Cunningham reaffirmed Blakely in this respect. 549 U.S. at 20
288-89 (using Blakely’s definition of the Apprendi maximum to 21
find California’s sentencing scheme unconstitutional). 22
Cunningham, moreover, involved non-continuous sentences, as is 23
the case in Morris’s petition. In that regard, the Cunningham 24
decision directly contradicts the statement in Footnote 12 of my 25
colleagues’ opinion that the Supreme Court has never suggested 26

-- 72 of 87 --

11
that non-continuous schemes raise Sixth Amendment concerns. Maj. 1
op. 48. In the very heart of the Court’s holding, it stated: 2
California’s Legislature has adopted 3
sentencing triads, three fixed sentences with 4
no ranges between them. Cunningham’s 5
sentencing judge had no discretion to select 6
a sentence within a range of 6 to 16 years. 7
His instruction was to select 12 years, 8
nothing less and nothing more, unless he 9
found facts allowing the imposition of a 10
sentence of 6 or 16 years. Factfinding to 11
elevate a sentence from 12 to 16 years, our 12
decisions make plain, falls within the 13
province of the jury employing a beyond-a- 14
reasonable-doubt standard, not the bailiwick 15
of a judge determining where the 16
preponderance of the evidence lies. 17
18
Cunningham, 549 U.S. at 292. 19
Similarly, in Morris’s case, the sentencing judge had to 20
choose between two ranges: 1.5 to 4 years and 15 years to life 21
-- an eleven-year gap between the maximum in the lower range and 22
the minimum in the higher range. Cunningham is, therefore, also 23
directly on point. 24
The reasoning adopted by my colleagues with respect to 25
analyzing the maximum sentence for Apprendi purposes has thus 26
been expressly rejected by the Supreme Court, and AEDPA deference 27
is inapplicable. See Dolphy v. Mantello, 552 F.3d 236, 238 (2d 28
Cir. 2009) (AEDPA deference not applicable where state court’s 29
adjudication was “contrary to, or involved an unreasonable 30
application of, clearly established Federal law as determined by 31
the Supreme Court of the United States”) (internal quotation 32

-- 73 of 87 --

8Maj. op. 47, 50, 51 .
9Maj. op. 47.
12
marks omitted). The Apprendi maximum for each petitioner is the 1
maximum second felony offender sentence for their crime of 2
conviction. That maximum in each case is less than life 3
imprisonment. 4
2) Factfinding for Apprendi Purposes 5
Believing that the immediately preceding discussion 6
establishes that petitioners’ PFO sentencing involved a choice 7
between sentencing ranges with different maximum sentences for 8
Apprendi purposes, I turn to the next question: whether in 9
petitioners’ cases that choice was based on the sentencing 10
judges’ findings of facts beyond those found by the jury in the 11
felony of conviction or admitted by the defendant. Whether the 12
findings are sheltered by Almendarez-Torres is dealt with in the 13
next subsection. 14
Conspicuously absent from my colleagues’ opinion is any 15
clear denial that, in petitioners’ cases, “step two” -- 16
consideration of evidence relating to the character, history, and 17
nature of the criminal conduct of the defendant -- involved 18
factfinding beyond the multiple prior felonies. 19
Instead the opinion is at pains to establish that, under the 20
PFO sentencing statute, two prior felonies alone “authorize” 8 a 21
Class A-I sentence, that defendants are “eligible for” 9 or 22

-- 74 of 87 --

10Maj. op. 10.
11Maj. op. 38, 47, 51.
12Maj. op. 47.
13Maj. op. 47.
14Maj. op. 37.
15Maj. op. 48.
16Maj. op. 49.
13
“subject to” 10 a Class A-I sentence based “solely” 11 on two prior 1
felonies; that two prior felonies are the “sole determinant for 2
whether a judge is authorized to impose a PFO sentence”; 12 that 3
“no additional factfinding beyond the fact of two prior felony 4
convictions is required” 13 to impose a PFO sentence; that two 5
prior felony convictions are “necessary and sufficient” 14 to 6
impose the enhanced sentence; and that the second step findings 7
are not “necessary” for 15 or “essential to” 16 a recidivist 8
sentence. 9
None of the quoted phrases purport to be mandatory, i.e., 10
they do not state that two predicate felonies alone require a 11
Class A-I sentence. All that the phrases purport to state is 12
that the multiple predicate felonies alone: (i) trigger the PFO 13
sentencing process, (ii) expose the defendant to the possibility 14
of a Class A-I sentence, and (iii) may be sufficient in and of 15
themselves to justify such a sentence. However, none of that is 16
disputed, and none of that disposes of any of the appeals before 17
us. 18

-- 75 of 87 --

14
All of the petitioners assert colorable claims that their 1
Class A-I sentences were based on factfinding going beyond the 2
predicate felonies, without which a second felony offender 3
sentencing range with lower maximum sentences would concededly 4
have been applicable. To put it another way, my colleagues have 5
successfully defended the PFO statute against a facial attack by 6
showing that the predicate felonies may alone justify a Class A-I 7
sentence, while not addressing the claims before us that 8
factfinding beyond the predicate felonies actually occurred and 9
enhanced the sentences of the petitioners. 10
Without linking their discussion to any relevant and 11
identifiable constitutional theory, my colleagues also downplay 12
the importance of the second step, describing it as “procedural,” 13
one that merely informs the exercise of sentencing discretion. 14
Maj. op. 51, 54. In fact, the Supreme Court has expressly held 15
that 16
broad discretion to decide what facts may support an 17
enhanced sentence, or to determine whether an enhanced 18
sentence is warranted in any particular case, does not 19
shield a sentencing system from the force of our 20
decisions. If the jury’s verdict alone does not 21
authorize the sentence, if, instead, the judge must 22
find an additional fact to impose the longer term, the 23
Sixth Amendment requirement is not satisfied. 24
25
Cunningham, 549 U.S. at 290 (citing Blakely, 542 U.S. at 305 & 26
n.8). Regardless of whether the second step is labeled 27
“procedural” or whether it informs discretion, the second step in 28
the case of all petitioners involved which of two sentencing 29

-- 76 of 87 --

17My colleagues’ opinion states: “[A]ny facts that the sentencing judge
considered beyond those respecting recidivism do not implicate the Sixth Amendment,
for they did not -- and could not -- lead to a sentence in excess of that Apprendi
maximum.” Maj. op. 54. The Apprendi maximum issue is discussed supra.
15
ranges was to be selected and the choice was between ranges with 1
different maximum sentences. 2
Conceding that facts beyond the felony convictions may be 3
considered in the second step, 17 my colleagues also quote Rivera 4
to the effect that defendants do not have “a legal entitlement to 5
have those facts receive controlling weight in influencing the 6
court’s opinion.” Maj. op. 52 (quoting People v. Rivera, 5 7
N.Y.3d 61, 68 (N.Y. 2005)) (emphasis omitted). Of course, the 8
defendant has no “legal entitlement” to prevail at the second 9
step or to have his or her evidence given “controlling weight.” 10
No petitioner is arguing that showing up at a sentencing 11
hearing and expressing remorse entitled him to sentencing as a 12
second felony offender as a matter of law. Each is arguing only 13
that judicial factfinding took place and unconstitutionally 14
guided the choice between the two legally available sentencing 15
ranges. 16
My colleagues make a final attempt to downplay the second 17
step. They describe the statutory requirement of a statement of 18
reasons by the sentencing judge for imposing a Class A-I range 19
sentence rather than a lower range sentence as intended only to 20
“facilitate[] an appellate review function that is distinct from 21

-- 77 of 87 --

18This is a peculiar basis for downplaying the significance of the second step,
given that this court frequently remands appeals on the ground that the sentencing
judge’s statement of reasons is not sufficient to permit appellate review. See, e.g.,
United States v. Richardson, 521 F.3d 149, 159-60 (2d Cir. 2008); United States v.
DeMott, 513 F.3d 55, 58 (2d Cir. 2008); United States v. Hall, 499 F.3d 152, 156-57
(2d Cir. 2007).
16
the issue of whether the PFO sentence was lawfully imposed.” 18
1
Maj. op. 40. That characterization is correct so far as 2
“lawfully imposed” means only that once two prior felonies have 3
been proven, a defendant is legally “eligible for,” “subject to,” 4
etc. a Class A-I sentence. It cannot mean more than that because 5
it is also conceded that an appellate court can overturn the 6
“lawfully imposed” sentence and resentence (or order 7
resentencing) to a legally available lower range. For example, 8
no one claims that a mistaken finding of fact relating to a 9
defendant’s prior bad conduct on which a sentencing judge based a 10
Class A-I sentence could not be the ground for overturning on 11
appellate review a Class A-I sentence on appeal. If not, it can 12
hardly be said that no significant factfinding takes place in the 13
second step. 14
My colleagues’ avoidance of a definitive answer to whether 15
factfinding beyond the predicate felonies may occur in the second 16
step or to whether it did occur in the case of any of the 17
petitioners, must be contrasted with the position taken by 18
appellate counsel for the prosecution and by the Rivera decision 19
itself. In the in banc oral argument, the New York Solicitor 20

-- 78 of 87 --

19SG: The judge found that [Morris] was a persistent felony offender on
the two prior crimes and found quite a number of additional facts.
. . .
Court: With all three petitioners here, facts were found and were relied
upon in imposing the PFO sentence that went beyond any of the
convictions, isn’t that right?
SG: I believe that is true, [although] I’m not as familiar with the
Portalatin facts.
17
General conceded that facts were found in the sentencing 1
proceedings of the petitioners. 19 Moreover, in Rivera, the New 2
York Court of Appeals used the words “fact” or “factfinding” 3
freely with regard to the second step. See e.g., Rivera, 5 4
N.Y.3d at 67-68 (referring repeatedly to the sentencing court’s 5
consideration of “facts” found in the second step). The court 6
neither limited the inquiry to predicate crimes nor downplayed 7
the importance of the second step. The Court of Appeals 8
described that step as one in which “the sentencing court . . . 9
will consider holistically the defendant’s entire circumstances 10
and character, including traits touching upon the need for 11
deterrence, retribution and rehabilitation unrelated to the crime 12
of conviction.” Rivera, 5 N.Y.3d at 69 n.8. 13
With regard to the petitioners before us, the sentencing 14
judges showed no signs of viewing the second step as anything but 15
involving the consideration of evidence and the finding of facts. 16
As noted, in Morris’s case, the sentencing judge made extensive 17
findings of fact and formally labeled them as such. See supra at 18
8. 19
Finally, the constitutional significance of the second step 20

-- 79 of 87 --

18
is underscored by the statutory provision that “the burden of 1
proof is upon the people” in this phase. N.Y. Crim. Proc. Law § 2
400.20(5). In the first step, the PFO predicate convictions must 3
be proven beyond a reasonable doubt. Id. In the second step, 4
“[m]atters pertaining to the defendant’s history and character 5
and the nature and circumstances of his criminal conduct” need be 6
proven only by a preponderance of the evidence. Id. All 7
relevant evidence must be considered and the ordinary rules of 8
evidence, save for those relating to privileges, do not apply. 9
Id. In Rivera’s own words, “the People retain the burden to show 10
that the defendant deserves the [Class A-I] sentence.” 5 N.Y.3d 11
at 68. My colleagues state that it is “not entirely clear” what 12
this statement means. Maj. op. 53. In fact, it is a routine 13
formulation pertinent to sentencing generally -- including the 14
federal system, see 18 U.S.C. § 3553 -- where a range of 15
sentences is permissible. It means what it says. If the 16
prosecution failed to prove by a preponderance of the evidence 17
that one or more of the petitioners “deserve,” a Class A-I 18
sentence, the petitioner would have been sentenced to a range 19
with a lower maximum. Rivera, 5 N.Y.3d at 68 20
In short, however characterized, the second step with regard 21
to the present petitioners involved the presentation of evidence 22
upon which the sentencing judge found facts and chose between 23
sentencing ranges with different maximum sentences. Nothing in 24

-- 80 of 87 --

19
my colleagues’ opinion, save for the discussion of Almendarez- 1
Torres, responds to the claim of each petitioner that factfinding 2
altered the sentencing and applicable maximum range. 3
3) Giving Full AEDPA Deference, What is the Effect of 4
Almendarez-Torres? 5
The decision in Almendarez-Torres has played a minor role in 6
this litigation until now. None of the New York sentencing 7
courts in the present petitions mentioned it, much less attempted 8
to distinguish evidence or facts sheltered by Almendarez-Torres 9
from those not sheltered. In Rivera, the Court of Appeals 10
mentioned Almendarez-Torres only with regard to proving the 11
existence of prior convictions. 5 N.Y.3d at 67. Certainly the 12
original panel’s remand would have allowed the district courts to 13
consider whether facts found by New York sentencing courts in 14
each of appellants’ sentencing hearings were sheltered by 15
Almendarez-Torres. 16
My colleagues’ discussion of Almendarez-Torres concerns in 17
part the breadth of that decision with regard to what facts are 18
sheltered by it. There are many variations here: e.g., (i) it 19
shelters only the existence of the fact of the prior convictions; 20
or (ii) it shelters only the existence of prior convictions and 21
matters proven to a jury or admitted by the defendant in 22
connection with the convictions; or (iii) it shelters the 23
existence of the convictions, matters proven or admitted, and 24

-- 81 of 87 --

20
matters relating to the convictions not proven to a jury or 1
admitted by the defendant; and (iv) inferences drawn from any of 2
the above. My colleagues give AEDPA deference to (iv). Maj. op. 3
56-57. 4
I will not quarrel with their conclusion because it is 5
largely irrelevant at this stage. Even if AEDPA deference were 6
shown to (iv), it disposes of none of the appeals before us, 7
except perhaps for Phillips, as to whom the failure to 8
rehabilitate may be an inference drawn solely from the predicate 9
convictions. In the other sentencing proceedings before us, 10
evidence was proffered and mentioned by the sentencing judges 11
that was not even arguably covered by Almendarez-Torres. While 12
consideration of Almendarez-Torres might identify some sheltered 13
facts and then lead to a conclusion that other findings were 14
harmless -- a difficult conclusion perhaps in Morris’s case -- 15
the panel left that to the remand. 16
I must also note that my colleagues’ discussion of 17
Almandarez-Torres implies that the PFO statute at the second step 18
limits consideration, or findings, of facts to matters sheltered 19
by that decision. Maj. op. 56 (addressing only the situation 20
where “a sentencing judge . . . consider[s] subsidiary facts 21
respecting a defendant’s criminal history before imposing a PFO 22
sentence”). Again, they fail to address appellants’ claims of 23
what actually happened at their sentencing hearings, where facts 24

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20My colleagues state that “the step two inquiry under the PFO statute might
well be analogized to the judicial consideration of statutory factors that Congress
asks of district court judges in the federal system.” Maj. op. 54 n.13.
21
going beyond matters relating to the prior convictions were 1
allegedly found. 2
4) Giving Full AEDPA Deference, Is Factfinding Regarding 3
Traditional Sentencing Factors Free of Apprendi Restraints? 4
Reference has been made throughout these proceedings to the 5
fact that the second step and its factfinding involve the 6
consideration of traditional sentencing factors and is not unlike 7
the requirements of Section 3553(a). 20 I agree but find the 8
point irrelevant. 9
Blakely/Cunningham radically altered the use of traditional 10
sentencing factors where findings of fact and conclusions 11
regarding traditional factors alter maximum sentences. Indeed, 12
each of those cases involved sentencing enhancements altering 13
maximum sentences based on generalized findings well within the 14
range of traditional factors -- “substantial and compelling 15
reasons justifying an exceptional sentence,” Blakely, 542 U.S. at 16
299, and “circumstances in aggravation or mitigation of the 17
crime,” Cunningham, 549 U.S. at 277 -- but were still held 18
unconstitutional. As for Section 3553(a), that provision is 19
certainly an expression of traditional factors, but it cannot be 20
used to alter maximum sentences. That is in fact what Booker was 21

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21Some of the briefing has suggested that while the PFO statute as once applied
violated Blakely/Cunningham, Rivera altered its application in a way that renders it
constitutional. Whether the PFO procedures are now different is irrelevant with
regard to the present petitions because the petitioners claim that the procedure under
which they were sentenced was unconstitutional. See Liberta v. Kelly, 839 F.2d 77, 81
(2d Cir. 1988) (defendant could challenge the constitutionality of the criminal
statute under which he was convicted, even where the court affirmed his conviction by
excising prospectively the allegedly unconstitutional portions, because defendant had
been convicted under the unaltered statute). In any event, if New York’s application
of the PFO statute has been altered, the alteration can be considered when cases
involving petitioners subject to the newly altered procedures arise.
22
about. 21
1
CONCLUSION 2
Except for the argument made with regard to maximum 3
sentences for Apprendi purposes, which has been specifically 4
rejected by the Supreme Court, nothing in my colleagues’ opinion 5
identifies a constitutional argument that even arguably disposes 6
of Portalatin’s and Morris’s claims regarding factfindings 7
altering their maximum sentences. I therefore respectfully 8
dissent. 9

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23
Exhibit A 1
2
Using a Class E felony as an example, the original panel’s 3
view of the mechanics (what happens) of PFO sentencing is as 4
follows: 5
The defendant is convicted of a felony. 6
The maximum sentence for a first or second 7
felony offender is 4 years. N.Y. Penal Law 8
§§ 70.00(2)(e), 70.06(3)(e). After the 9
conviction, the prosecution enters into 10
evidence certified convictions or gets a 11
stipulation from the defense, sufficient to 12
prove beyond a reasonable doubt two or more 13
prior felony convictions of the defendant. 14
Maj. op. 8. 15
Because of the prior convictions, and 16
without more, the defendant has the status of 17
a persistent felony offender and is “eligible 18
for” or “subject to” a Class A-I felony 19
sentence of 15 years to life. See People v. 20
Rivera, 5 N.Y.3d 61, 66-67 (N.Y. 2005) 21
(citing N.Y. Penal Law § 70.10(1)(a)); Maj. 22
op. 10-11. The sentencing judge has, by 23
virtue of the prior felony convictions alone, 24
“authori[ty]” to impose a Class A-I sentence. 25
See Rivera, 5 N.Y.3d at 66; Maj. op. 47. 26
The “authority” to impose a Class A-I 27
sentence is not absolute but is 28
circumscribed. Before a Class A-I sentence 29
may be imposed, the prosecution “retain[s] 30
the burden to show that the defendant 31
deserves the [Class A-I sentence].” Rivera, 32
5 N.Y.3d at 68; see also N.Y. Crim. Proc. Law 33
§ 400.20(5). The defendant may present 34
evidence at a hearing to influence the 35
sentencing court “to exercise its discretion 36
to hand down a sentence as if no recidivism 37
finding existed.” Rivera, 5 N.Y.3d at 68; 38
see also N.Y. Crim. Proc. Law § 400.20(1)); 39
Maj. op. 9-10, 52. 40
The sentencing judge has discretion to 41
impose a Class A-I sentence or a lesser 42
“authorized” sentence. See Rivera, 5 N.Y.3d 43

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24
at 67; N.Y. Penal Law § 70.10(2); N.Y. Crim. 1
Proc. Law § 400.20(1). The exercise of this 2
discretion is guided by “factfinding” based 3
on the evidence adduced at the sentencing 4
hearing, including the prior felonies and the 5
felony of conviction. See Rivera, 5 N.Y.3d 6
at 66-68; N.Y. Penal Law § 70.10(2); N.Y. 7
Crim. Proc. Law § 400.20(1)-(2); Maj. op. 52- 8
53. 9
The choice between a Class A-I sentence 10
and a lower sentence would, in the case of a 11
Class E felony, be a choice between: (i) a 12
Class A-I sentence with a range of a minimum 13
of 15 years to a maximum of life, and (ii) a 14
first or second felony offender sentence with 15
a maximum of 4 years. Compare N.Y. Penal Law 16
§§ 70.00(2)(e), 70.06(3)(e), with id. § 17
70.00(2)(a); see Rivera, 5 N.Y.3d at 68-69 18
n.7 (citing People v. Williams, 658 N.Y.S.2d 19
264, 265 (App. Div. 1997) (finding a Class 20
A-I sentence to be “an improvident exercise 21
of discretion” and ordering the resentencing 22
of the defendant “as a second felony 23
offender”)); see also People v. Jennings, 822 24
N.Y.S.2d 501, 502 (App. Div. 2006) (“If the 25
sentencing court had not found defendant a 26
persistent felony offender, the maximum 27
sentence it could have imposed would have 28
been an indeterminate term of two to four 29
years . . . .”); Maj. op. 10 (discussing 30
possible sentences in the case of a Class D 31
felony). 32
The sentencing judge may reach a variety 33
of conclusions regarding the exercise of 34
discretion. The nature and number of the 35
prior felonies and the evidence leading to 36
the felony of conviction may themselves be 37
“sufficient” to justify the Class A-I 38
sentence. See Rivera, 5 N.Y.3d at 70-71 39
(“If, for example, a defendant had an 40
especially long and disturbing history of 41
criminal convictions, a persistent felony 42
offender sentence might well be within the 43
trial justice’s discretion even with no 44
further factual findings.”). Or the prior 45
felony convictions and felony of conviction 46
along with other evidence may be sufficient 47
to justify a Class A-I felony sentence. See 48

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25
Rivera, 5 N.Y.3d at 67-69; N.Y. Penal Law § 1
70.10(2); N.Y. Crim. Proc. Law § 400.20(1)- 2
(2). Or the evidence may be such that the 3
sentencing judge in his or her discretion 4
imposes a first or second felony offender 5
sentence. See Rivera, 5 N.Y.3d at 67 (“If, 6
based on all it heard, the court’s view of 7
the facts surrounding defendant’s history and 8
character were different, the court might 9
well have exercised its discretion to impose 10
a less severe sentence.”); N.Y. Penal Law § 11
70.10(2); N.Y. Crim. Proc. Law § 400.20(1). 12
Imposition of a Class A-I persistent 13
felony offender sentence rather than a first 14
or second felony offender sentence is subject 15
to appellate review under a deferential 16
standard. See Rivera, 5 N.Y.3d at 68 17
(“[O]nce a defendant is adjudged a persistent 18
felony offender, a recidivism sentence cannot 19
be held erroneous as a matter of law, unless 20
the sentencing court acts arbitrarily or 21
irrationally. The court’s opinion is, of 22
course, subject to appellate review, as is 23
any exercise of discretion.”). If an 24
appellate court vacates the Class A-I 25
sentence, it must substitute a first or 26
second felony offender sentence with a 27
maximum of 4 years in the case of a Class E 28
felony or remand for that purpose. See 29
Rivera, 5 N.Y.3d at 69 n.7 (citing Williams, 30
658 N.Y.S.2d at 265 (finding a Class A-I 31
sentence to be “an improvident exercise of 32
discretion” and ordering the resentencing of 33
the defendant “as a second felony offender”); 34
N.Y. Crim. Proc. Law § 470.20; see also 35
People v. LaSalle, 95 N.Y.2d 827, 829, 734 36
N.E.2d 749, 750 (2000) (memorandum decision); 37
Jennings, 822 N.Y.S.2d at 502 (finding that 38
“if the sentencing court had not found 39
defendant a persistent felony offender, the 40
maximum sentence it could have imposed would 41
have been an indeterminate term of two to 42
four years”). 43

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