James BESSER, a/k/a James Zerilli, Petitioner-Appellant, v. James WALSH, Superintendent, Sullivan Correctional Facility, Respondent-Appellee. William Phillips, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, and Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. Carlos Portalatin, Petitioner-Appellee, v. Harold Graham, Superintendent, Auburn Correctional Facility, Respondent-Appellant. Vance Morris, Petitioner-Appellant, v. Dale Artus, Superintendent, Clinton Correctional Facility, and Andrew M. Cuomo, New York State Attorney General, Respondents-Appellees. William Washington, Petitioner-Appellee, v. Thomas Poole, Superintendent, Five Points Correctional Facility, Respondent-Appellant.
Docket Nos. 05-4375-pr, 06-3550-pr, 07-1599-pr, 07-3588-pr, 07-3949-pr
United States Court of Appeals, Second Circuit
March 31, 2010
601 F.3d 163
WINTER, Circuit Judge
Argued in Tandem: April 16, 2008.
CONCLUSION
We vacate the district court‘s judgment for the foregoing reasons and those stated in the tandem case, Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010). We remand to the district court to order the Board‘s further disclosure and further searches, and to determine if what is discovered in further searches must be disclosed. We also remand to the district court for initial consideration as to whether the Board properly construed the scope of the FOIA requests and searched its own records in response, and whether materials that may be found must be disclosed.
Richard M. Greenberg, Office of the Appellate Defender, New York, New York, for Petitioner-Appellant Besser.
Martin M. Lucente, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Petitioner-Appellant Phillips.
Joshua Michael Levine (Lynne W.L. Fahey), Appellate Advocates, New York, New York, for Petitioner-Appellee Portalatin.
Andrew C. Fine (Paul Wiener), The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Petitioner-Appellant Morris.
Jonathan M. Kirshbaum (Robert S. Dean), Center For Appellate Litigation, New York, New York, for Petitioner-Appellee, Washington.
Mark Dwyer, Assistant District Attorney, of counsel (Robert M. Morgenthau, District Attorney, New York County; Morrie I. Kleinbart, Special Assistant District Attorney; Nicole Beder, Assistant District Attorney, of counsel), New York, New York, for Respondent-Appellee Walsh.
Roseann B. Mackechnie, Deputy Solicitor General for Criminal Matters (Andrew M. Cuomo, Attorney General of the State of New York; Barbara D. Underwood, Solicitor General; Malancha Chanda, Assistant Attorney General, of counsel), New York, New York, for Respondents-Appellees Artus and Cuomo.
Leonard Joblove, Assistant District Attorney, of counsel (Charles J. Hynes, District Attorney, Kings County; Ann Bordley, Assistant District Attorney, of counsel), Brooklyn, New York, for Respondent-Appellant Graham.
Andrew M. Cuomo, Attorney General of the State of New York (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters; Malancha Chanda, Assistant Attorney General, of counsel), New York, New York, for Respondent-Appellant Poole.
Marshall A. Mintz, Mintz & Oppenheim LLP, New York, New York (Richard D. Willstatter, Chair of the Amicus Curiae Committee of the New York State Association of Criminal Defense Lawyers, Vice-Chair of the 2nd Circuit Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, White Plains, New York), for Amici Curiae New York State Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers.
WINTER, Circuit Judge:
The principal question on appeal is whether New York state court decisions affirming sentences enhanced under New York‘s persistent felony offender (“PFO“) statute,
The district court issued a writ of habeas corpus in the petitions of Carlos Portalatin and William Washington and the relevant state authorities brought this appeal.1 See Washington v. Poole, 507 F. Supp. 2d 342, 344 (S.D.N.Y. 2007) (Koeltl, J.); Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). The district court declined to issue the writ in the petitions of James Besser, William Phillips, and Vance Morris, who then appealed. See Morris v. Artus, No. 06 Civ. 4095(RKS), 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.); Phillips v. Artus, No. 05 Civ. 7974(PAC), 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Besser v. Walsh, No. 02 Civ. 6775(LAK), 2005 WL 1489141, at *1 (S.D.N.Y. June 22, 2005) (Kaplan, J.). Because these five appeals presented substantially similar or overlapping issues, we heard them together.
We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York‘s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Because Besser‘s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.
BACKGROUND
a) The Persistent Felony Offender Statute
There are three increasingly harsh levels of sentencing applicable to felony offenders under Article 70 of New York‘s penal laws pertinent to this appeal. First-time felony offenders are generally sentenced according to indeterminate ranges based on the class of offense. See
The difference in a defendant‘s sentencing exposure depends heavily upon which level‘s range is applicable. Once classified as a PFO, a defendant may be subject to a minimum sentence exceeding the maximum sentence for second felony offenders applicable to the crime committed. For example, a first-time offender convicted of a Class E felony would be subject to a term of 1 1/3 to 4 years. See
Under the provisions applicable to first and second felony offenders, the existence or non-existence of a prior felony alone determines the applicable range. See
If the sentencing court imposes a Class A-I sentence, “the reasons for the court‘s opinion shall be set forth in the record.”
Because second felony offender status usually exposes a defendant to maximum sentences below the maximum (and often the minimum) of the Class A-I range, serious constitutional issues arise, as discussed infra, and our interpretation of the PFO statute is critical to the constitutional analysis. In the briefs submitted by state authorities, it was suggested that a finding of two felony convictions alone locks in the Class A-I range, with life as a maximum. We disagree. The history/character/criminal conduct findings, which are subject to appellate review, are necessary to lock in the Class A-I range and, if such findings do not justify a Class A-I sentence, require the sentencing court to sentence the defendant in a lesser range, usually as a second felony (or violent felony) offender.
The state authorities rely for their argument upon language in Rivera. We therefore quote the pertinent portion of that decision at length:
[D]efendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, ... no further findings are required. This conclusion
takes defendant‘s sentence outside the scope of the violations described in Apprendi and its progeny. The [United States] Supreme Court has held that a judge (as opposed to a jury) may find the fact of a defendant‘s prior conviction without violating the Sixth Amendment. ...
After determining defendant‘s status as a persistent felony offender, the [court that sentenced Rivera] went on to consider other facts in weighing whether to impose the authorized persistent felony offender sentence. ... If, based on all it heard, the [sentencing] court‘s view of the facts surrounding defendant‘s history and character were different, the court might well have exercised its discretion to impose a less severe sentence.
Nevertheless, the relevant question under the United States Constitution is not whether those facts were essential to the trial court‘s opinion (
N.Y. Crim. Proc. Law § 400.20[1][b] ), but whether there are any facts other than the predicate convictions that must be found to make recidivist sentencing possible (see Blakely, 542 U.S. at 302-303, 124 S. Ct. 2531...). Our answer is no........
To reiterate our analysis ..., a defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed, while the People retain the burden to show that the defendant deserves the higher sentence. Nevertheless, once a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally.
The court‘s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident. ... A determination of that kind, however, is based not on the law but as an exercise of the Appellate Division‘s discretion in the interest of justice as reserved uniquely to that Court (
N.Y. Crim. Proc. Law § 470.20[6] ).7See e.g., People v. Williams, 239 A.D.2d 269, 269-270, 658 N.Y.S.2d 264 (1st Dept 1997) (reducing a persistent felony offender sentence in the interest of justice, based on defendant‘s rehabilitation). ...
Rivera, 800 N.Y.S.2d 51, 833 N.E.2d at 198-99.
While Rivera states that two prior convictions alone render a defendant “eligible for,” or “subject to,” a Class A-I sentence--or make such a sentence “possible“--it follows the language of the PFO statute in giving a sentencing court discretion to impose such a sentence but only if the court finds that “the history and character of the defendant and the nature and circumstances of [defendant‘s] criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest. . . .”
Therefore, it is clear from the statute and from Rivera that, absent findings beyond the existence of two or more felony convictions, the Class A-I range may not be imposed, and a defendant must be sentenced within a lesser range, usually as a second felony offender. (Of course, the criminal history may in some cases be sufficient to support such findings.) It is also clear that a Class A-I sentence usually has a statutory maximum above the statutory maximum for second felony offenders. Compare
The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to the sentencing scheme. See People v. Quinones, 12 N.Y.3d 116, 879 N.Y.S.2d 1, 906 N.E.2d 1033, 1034 (2009); Rivera, 800 N.Y.S.2d 51, 833 N.E.2d at 195; People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, 846 (2001). Before Blakely and Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), we twice held that Rosen did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or the Supreme Court‘s later decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). See Brown v. Miller (“Brown II“), 451 F.3d 54, 56-57 (2d Cir. 2006) (addressing both Apprendi and Ring); Brown v. Greiner (“Brown I“), 409 F.3d 523, 526 (2d Cir. 2005) (addressing Apprendi). But, as discussed infra, neither Brown decision addresses the effect of the Supreme Court‘s more recent decisions in Blakely and Cunningham.
b) Prior State Court and Federal Proceedings Concerning the Petitions
1) James Besser
Besser was convicted, following a jury trial, of one count of enterprise corruption, a Class B felony, in violation of
New York moved to have Besser sentenced as a Class A-I offender pursuant to the PFO statute. Counsel for Besser registered objections to, inter alia, substantial portions of the state‘s statement of alleged facts regarding his history and character and its supporting exhibits, which included court and police records.
The court found the predicate felony convictions qualified Besser for sentencing pursuant to the PFO statute. The judge then reviewed the evidence submitted by the state that included information relating to Besser‘s uncharged murder attempts and to a brutal beating for which charges were then pending. It concluded that Besser‘s “history and character warrant[ed] a sentence of extended incarceration and lifetime supervision 14.” Besser received a sentence under the PFO statute of 15 years to life imprisonment. Had Besser been sentenced as a second felony offender, he would have been subject to a sentence of a minimum of 4.5 years to a maximum of 25 years. See
Besser appealed, challenging, inter alia, his sentence as imposed in violation of his Sixth Amendment rights under Apprendi. On May 1, 2001, the New York Court of
On August 26, 2002, Besser filed the present petition in the Southern District. Judge Kaplan denied the petition, based on our decision in Brown I, 409 F.3d 523, but “grant[ed] a certificate of appealability on the question whether New York‘s [PFO] statute violates the rule of Apprendi. . . .” See Besser v. Walsh, 2005 WL 1489141, at *1.
2) Vance Morris
Morris was convicted by a jury, of sixteen counts of first degree criminal contempt, a Class E felony. See
On appeal, Morris raised several issues, including, for the first time, an Apprendi challenge to his sentence. On August 4, 2005, the Appellate Division unanimously affirmed, stating that even if Morris had preserved the Apprendi challenge, it would be rejected. See People v. Morris, 21 A.D.3d 251, 800 N.Y.S.2d 6, 7 (2005) (citing Rivera, 800 N.Y.S.2d 51, 833 N.E.2d 194, and Rosen, 728 N.Y.S.2d 407, 752 N.E.2d 844). On September 27, 2005, the New York Court of Appeals summarily denied Morris leave to appeal. People v. Morris, 5 N.Y.3d 831, 804 N.Y.S.2d 45, 837 N.E.2d 744 (2005).
Morris subsequently petitioned for a writ of habeas corpus pursuant to
3) William Phillips
Phillips was convicted by a jury of second degree robbery of a candy and newspaper store, a Class C violent felony offense at that time, in violation of
In a collateral proceeding brought pursuant to
Thereafter, Phillips appealed both his conviction and the denial of his Section 440.20 motion. On December 18, 2003, the Appellate Division unanimously affirmed the underlying conviction and the denial of the Section 440.20 motion, concluding that “the particular facts upon which the sentencing court based its determination were all permissible under Apprendi . . . .” People v. Phillips, 2 A.D.3d 278, 768 N.Y.S.2d 812, 812 (2003). The New York Court of Appeals denied Phillips leave to appeal without prejudice to renewal, and then, on September 30, 2004, denied leave again upon reconsideration. People v. Phillips, 3 N.Y.3d 645, 782 N.Y.S.2d 417, 816 N.E.2d 207 (2004), on reconsideration, 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 (2004).
Phillips then brought the instant petition in the Southern District for a writ of habeas corpus. On June 30, 2006, Judge Crotty rejected Phillips‘s Apprendi challenge, relying on Brown I, 409 F.3d 523, and Brown II, 451 F.3d 54. Phillips v. Artus, 2006 WL 1867386, at *5-*7. The court declined to issue a certificate of appealability. Id. at *7. Phillips then moved for a certificate of appealability in this court, which was granted.9
4) Carlos Portalatin
Portalatin was found guilty by a jury of one count each of second degree kidnapping and first degree robbery in connection with a carjacking incident. See
Portalatin brought an Apprendi challenge to his sentencing under the PFO statute for the first time in his appeal to the Appellate Division. Finding Portalatin‘s Apprendi challenge both unpreserved and without merit, the court affirmed his judgment of conviction and sentence on May 16, 2005. People v. Portalatin, 18 A.D.3d 673, 795 N.Y.S.2d 334, 335 (2005) (citing Rosen, 728 N.Y.S.2d 407, 752 N.E.2d 844). On July 6, 2005, Portalatin‘s application for leave to appeal was denied by the New York Court of Appeals. People v. Portalatin, 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 (2005).
Portalatin then sought a writ of habeas corpus in the Eastern District, which Judge Gleeson granted on March 22, 2007. Portalatin v. Graham, 478 F. Supp. 2d at 386. The state then took this appeal.
5) William Washington
Washington was convicted by a jury of fourth degree grand larceny, a Class E felony, in connection with his theft of a wallet at a bus terminal. See
DISCUSSION
a) Standard of Review
We review de novo a decision to grant or deny a petition for writ of habeas corpus. Morris v. Reynolds, 264 F.3d 38, 45 (2d Cir. 2001). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA“), “with respect to any claim that was adjudicated on the merits in State court proceedings,” a federal court may not grant habeas relief unless the state court‘s resolution of the claim on the merits:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court decision is “contrary to” clearly established law for AEDPA purposes only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (O‘Connor, J., for the Court). An “unreasonable application” of clearly established federal law occurs “if [a] state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner‘s case,’ or refuses to extend a legal principle that the Supreme Court has clearly established to a new situation in which it should govern.” Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006) (quoting Williams, 529 U.S. at 407-08, 120 S. Ct. 1495) (citations omitted). The proper inquiry is not whether a state court‘s application of, or refusal to extend, the governing law was erroneous, but whether it was “objectively unreasonable,” Williams, 529 U.S. at 409-10, 120 S. Ct. 1495, “mean[ing] that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.” Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted).
Clearly established federal law “refers to the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S. Ct. 1495. To assess “clearly established” law,
AEDPA deference applies only if a state court has disposed of a federal claim “on the merits” and “reduce[d] its disposition to judgment.” See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). In the present matter, petitioners’ federal claims were all disposed “on the merits” by the New York courts. Phillips‘s federal claim was rejected “on the merits” by the state court‘s conclusion that “the particular facts upon which the sentencing court based its determination were all permissible under Apprendi . . . .” People v. Phillips, 768 N.Y.S.2d at 812. The state court similarly rejected Washington‘s claim “on the merits” by concluding that “[t]he procedure under which defendant was adjudicated a persistent felony offender is not unconstitutional.” People v. Washington, 799 N.Y.S.2d at 218.
The federal claims raised by Portalatin, Morris, and Besser were also decided “on the merits” for AEDPA purposes because each state court cited People v. Rosen in ruling that those claims were procedurally barred. See People v. Besser, 726 N.Y.S.2d 48, 749 N.E.2d at 733; People v. Morris, 800 N.Y.S.2d at 7; People v. Portalatin, 795 N.Y.S.2d at 335. We held in Brown I that the state court in People v. Rosen could not have invoked state procedural law and barred Rosen‘s Sixth Amendment claim without first having found that the claim was without merit. Brown I, 409 F.3d at 532. And we later held in Brown II that a citation to Rosen in holding that a claim is procedurally barred establishes that the state court decision was interwoven with federal law. Brown II, 451 F.3d at 56-57. Therefore, the procedural rulings in the present matter are not “adequate” and “independent” grounds for the decision and do not bar us from addressing the federal claims on habeas review. See Brown II, 451 F.3d at 56-57; Brown I, 409 F.3d at 532. We thus proceed with these appeals under AEDPA‘s deferential standard of review.
b) AEDPA Claim and “Clearly Established” Sixth Amendment Law
Our analysis will proceed as follows: we first address whether it was objectively unreasonable to uphold petitioners’ Class A-I sentences in light of the Supreme Court decisions applying Apprendi. We then turn to whether that law was “clearly established” at the relevant time for each petitioner. This inquiry leads to two further questions: first, to what period of time do we look in determining whether a legal rule was “clearly established” under
1) The Apprendi Rule
The Sixth and Fourteenth Amendments guarantee that in federal and state “criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”
In Apprendi, the petitioner was convicted of possession of a firearm for an unlawful purpose, punishable under New Jersey law by a term of incarceration of 5 to 10 years. Id. at 468, 120 S. Ct. 2348. A separate hate crime statute, however, authorized an “extended term” of imprisonment of 10 to 20 years if the trial judge found that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id. at 468-69, 120 S. Ct. 2348 (quoting
On several subsequent occasions, the Supreme Court elaborated on the reach of Apprendi. In Ring, the Supreme Court addressed a capital sentencing scheme that required sentencing judges to find at least one statutorily-enumerated aggravating circumstance before imposing the death penalty. See Ring, 536 U.S. at 592-93. Absent such a finding and “[b]ased solely on the jury‘s verdict finding [of guilt], the maximum punishment [Ring] could have received was life imprisonment.” Id. at 597, 122 S. Ct. 2428 (citing
Then came Blakely. Under Washington state‘s Sentencing Reform Act, judges were ordinarily required to impose a sentence within a “standard range” that might well be significantly below the statutory maximum for the underlying offense. See Blakely, 542 U.S. at 299, 124 S. Ct. 2531. The charged offense in Blakely‘s case, second degree kidnapping, was a class of felony subject to a maximum sentence of 10 years. Id. (citing
The Supreme Court stated that review of Blakely‘s sentence required “apply[ing] the rule we expressed in Apprendi v. New Jersey: ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.‘” Blakely, 542 U.S. at 301, 124 S. Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. 2348) (citation omitted). The Court then reiterated 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.” Id. at 303, 124 S. Ct. 2531 (emphasis in original). Thus, for purposes of Apprendi, the statutory maximum for Blakely was not the 10 years prescribed for the class of felony, but the top of the standard range, 53 months, the applicable maximum absent additional fact-finding. See id. at 303-04, 124 S. Ct. 2531. Because a judge had to find facts in order to impose a sentence beyond the 53 monthrange, the Court concluded that Washington‘s sentence violated the Sixth Amendment. See id. at 313-14, 124 S. Ct. 2531.
In so holding, Blakely rejected the argument that the Apprendi rule did not apply because Washington‘s sentencing laws did not require the finding of any specific fact or facts, but rather required application of the amorphous test of “substantial and compelling reasons,” id. at 299, as a prerequisite for the imposition of a sentence enhanced beyond the standard range. See id. at 305, 124 S. Ct. 2531. The Court explained that it was irrelevant “[w]hether the judge‘s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as [in Blakely])) . . . .” Id. It also rejected as irrelevant the fact that a sentencing court, after finding aggravating facts, was required to assess the appropriateness of an enhanced sentence. See id. at 305 n. 8, 124 S. Ct. 2531 (“Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.” (emphasis omitted)). Because the judge-made “deliberate cruelty” finding resulted in Blakely being sentenced beyond 53 months, the Court reversed the state court‘s decision that there was no Apprendi violation and remanded for further proceedings. Id. at 298, 303, 314, 124 S. Ct. 2531.
Blakely clarified Apprendi by making it unambiguously clear that any fact (other than a prior conviction), no matter how generalized or amorphous, that increases a sentence for a specific crime beyond the statutory maximum must be found by a jury. Before Blakely, a court could reasonably have concluded (as was argued in Blakely) that certain kinds of judicial fact-finding did not violate Apprendi even if it resulted in a sentence beyond a statutory maximum. Indeed, we so held in Brown II, 451 F.3d at 55, and Brown I, 409 F.3d at 526. Of course, those decisions involved the reasonableness of New York court de
In Brown I, we concluded that it was not unreasonable to read Apprendi to proscribe only those sentencing schemes that permit a court to find some statutorily-enumerated, specific fact(s) to impose an enhanced sentence. Brown I, 409 F.3d at 534-35. Brown II reconsidered that holding in light of Ring and concluded that Ring had not undermined Brown I. Brown II, 451 F.3d at 55. We held that, even after Ring, it was not unreasonable “to conclude that [] determinations regarding the defendant‘s history, character, and offense fall into a different category from the essential statutory elements of heightened sentencing, or functional equivalents thereof, that were addressed by the Supreme Court‘s Apprendi ruling.” Id. at 58 (quoting Brown I, 409 F.3d at 535). In other words, because the “amorphous’ determination” required by the statute did not require “judicial factfinding of an element of the crime,” it did not violate Apprendi. Id. at 59. However, while Brown I and Brown II remain good law as to the issue they addressed--whether upholding the PFO statute was an unreasonable application of clearly established federal law after Apprendi but before Blakely/Cunningham--Blakely makes it clear that even “amorphous” judicial findings that alter maximum sentences offend the Sixth Amendment.
Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), also requires discussion because the challenged sentencing regime, California‘s determinate sentencing law (“DSL“), bears a remarkable similarity to both the sentencing scheme in Blakely and the New York PFO statute. Under the DSL, substantive offenses were assigned upper, middle, and lower range maximum sentences. Id. at 861. In Cunningham‘s case, the lower range was 6 years, the middle range was 12 years, and the upper range was 16 years. Id. at 860. Sentencing judges were required to impose the middle range unless there were “circumstances in aggravation or mitigation of the crime.” Id. at 861 (quoting
The Supreme Court held in Cunningham that “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi‘s bright-line rule.” Id. at 868 (citations omitted). In reaching this conclusion, the Court rejected the contention that the upper range was the relevant statutory maximum for Apprendi purposes and that judges were simply exercising the traditional discretion common to sentencing. Id. It reiterated that “[i]f the jury‘s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Id. at 869.
Cunningham also rejected an attempt to compare California‘s mandatory sentencing scheme and the post-Booker Federal Sentencing Guidelines, id. at 869-70, which had been rendered advisory by the Court, see United States v. Booker, 543 U.S. 220, 246, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)
2) Was Blakely “clearly established” at the relevant time for each petitioner?
As noted, the legal rule invoked by petitioners was not clearly established until Blakely clarified Apprendi. Therefore, we must decide whether Blakely was clearly established federal law “as of the time of the relevant state-court decision” for each petitioner. Williams, 529 U.S. at 412, 120 S. Ct. 1495 (O‘Connor, J., for the Court). If Blakely postdates the “relevant time” for any petitioner, then our Brown cases would control and foreclose the current challenge. See Brown II, 451 F.3d at 57 n. 1; Brown I, 409 F.3d at 533 n. 3.10
For all but one petitioner, it does not matter which formula we use in assessing the “relevant time.” Besser‘s conviction became final well before Blakely, and our Brown decisions dispose of his claim for habeas relief. Similarly, because the state court decisions involving Portalatin, Morris and Washington all postdate Blakely, their claims are not controlled by the Brown decisions, and we must instead evaluate New York‘s sentencing law in light of Blakely. However, Blakely came down after the New York Appellate Division decided Phillips’ appeal but before the Court of Appeals of New York denied Phillips leave to appeal. Phillips’ appeal thus turns on which approach we adopt in determining the relevant time.
We have previously noted that the Supreme Court has offered “inconsistent guidance” on this question. See Brown II, 451 F.3d at 57 n. 1; Brown I, 409 F.3d at 533 n. 3.10 However, as the Court recently explained, “the relevant state-court judgment for purposes of our review under AEDPA is that adjudicating the merits of [petitioner‘s] state habeas application, in which these claims were properly raised. . . .” Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654, 1659, 167 L. Ed. 2d 585 (2007).
We understand this formulation to mean that any state court decision involving the merits of an Apprendi claim is an application of federal law, whether or not the decision contains a discussion. Even if such a decision is a denial of leave to appeal or denial of a motion for reconsideration, application of federal law is still a
Applying this formulation here, Phillips may rely on Blakely as clearly established while the state courts were actively reviewing his claims. Thus, Blakely is clearly established law for purposes of the petitions filed by Portalatin, Morris, Washington, and Phillips.
3) Cunningham and “Clearly Established” Law
We turn to a final issue related to the term “clearly established federal law.” As noted, Cunningham invalidated a statutory scheme very similar to the PFO statute. The state argues that we may not consider Cunningham because it postdates the relevant state court decisions for the remaining petitioners. We disagree. Under both AEDPA and Teague, a petitioner may rely on a decision issued subsequent to the relevant period if that decision is “dictated” by preexisting Supreme Court precedent. See Artuz, 326 F.3d at 96; see also Williams, 529 U.S. at 381, 120 S. Ct. 1495 (Stevens, J., concurring) (quoting Teague, 489 U.S. at 301, 109 S. Ct. 1060); id. at 412, 120 S. Ct. 1495 (O‘Connor, J., for the Court). By “dictated,” we mean that the result must have been “apparent to all reasonable jurists” during the operative time frame. See Beard v. Banks, 542 U.S. 406, 413, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004) (quoting Lambrix v. Singletary, 520 U.S. 518, 528, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997)). Accordingly, neither Teague nor AEDPA preclude us from considering post-dated decisions that merely restate or codify “old” rules of law that were “clearly established” at the time.
Applying that principle here, we conclude that Blakely compelled the result in Cunningham and that we must therefore consider it as “clearly established law” for AEDPA purposes. Cunningham presented no issue of fact or law materially distinguishable from Blakely because the sentencing schemes in Blakely and Cunningham were “closely analogous.” See Butler v. Curry, 528 F.3d 624, 635-36 (9th Cir. 2008). Both schemes required a judge to impose a sentence within a standard range absent a finding of circumstances (other than those taken into account in the conviction) justifying an enhanced sentence. See Cunningham, 127 S. Ct. at 861-62; Blakely, 542 U.S. at 304, 124 S. Ct. 2531. And we agree with the Ninth Circuit that Cunningham, in rejecting California‘s scheme, merely “reiterated the[] same points, rejecting arguments already disapproved in Blakely. ... [It] did not add ‘any new elements or criteria for“’ determining when a state statute violates the Sixth Amendment.” Butler, 528 F.3d at 636 (citation omitted).
To be sure, the statutory scheme in Blakely is not precisely identical to the scheme in Cunningham. But a decision does not announce a “new” legal rule simply because it applies “a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Penry v. Lynaugh, 492 U.S. 302, 314, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (quoting Mackey v. United States, 401 U.S. 667, 695, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 307, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Holding otherwise would render any application of Blakely a “new” rule and thus not “clearly established law” for AEDPA purposes. See Butler, 528 F.3d at 638-39; see also Duncan v. United States, 552 F.3d 442, 445 (6th Cir. 2009) (“[T]he Apprendi line of cases is long. Logically, at some point in this chain ... the rule Apprendi announced must stop being a new rule in every varying application and instead must become an old one that applies on collateral review.“).
Because Cunningham presented no issue of law or fact materially distinguishable from Blakely, we conclude that Blakely dictated the result in Cunningham. Indeed, the Court‘s opinion in Cunningham suggests as much. See Cunningham, 127 S. Ct. at 868 (“[T]hat should be the end of the matter . . . .” (quoting Blakely, 542 U.S. at 313, 124 S. Ct. 2531)). As such, we may consider it in determining whether the state courts here unreasonably applied clearly established federal law.
c) AEDPA and “Contrary to,” or “Unreasonable Application” of “Clearly Established Law”
In rejecting the Sixth Amendment challenges of Phillips, Portalatin, Morris and Washington to the PFO statute, New York courts relied on the views expressed by the Court of Appeals in a series of opinions. We now turn to whether, in view of Blakely and Cunningham, those decisions are “contrary to” or an “unreasonable application of” clearly established Sixth Amendment law.
The New York Court of Appeals has considered Apprendi arguments with regard to the PFO statute on at least three occasions and each time has concluded that the scheme is constitutional. See Quinones, 906 N.E.2d at 1033; Rivera, 833 N.E.2d at 194; Rosen, 752 N.E.2d at 844. Rivera, decided after Blakely and Booker, elaborates on Rosen and offers the most thorough interpretation and analysis of the PFO statute. The court‘s more recent decision in Quinones merely reiterates and confirms the logic of Rosen and Rivera. Compare Quinones, 906 N.E.2d at 1036-42, with Rivera, 833 N.E.2d at 197-201, and Rosen, 752 N.E.2d at 846-47.
In upholding the PFO statute, Rivera emphasized that the history/character/criminal conduct findings are of the sort that have always guided the exercise of discretion in sentencing, Rivera, 833 N.E.2d at 199-200, and that “fall[] squarely within the most traditional discretionary sentencing role of the judge.” Id. at 200. By way of footnote, Rivera noted:
... Our statutes contemplate that the sentencing court-after it has adjudicated the defendant a persistent felony offender-will consider holistically the defendant‘s entire circumstances and character, including traits touching upon the need for deterrence, retribution and rehabilitation unrelated to the crime of conviction. This is different from the type of factfinding involved in Apprendi. In this respect, we note that in Brown v. Greiner, 409 F.3d 523, 534 (2d Cir. 2005), the United States Court of Appeals for the Second Circuit described the contested second phase of our sentencing procedure as “a vague, amorphous assessment” of whether the public
interest would be served through imposition of the recidivist sentence.
Id. at 200 n. 8. The Court of Appeals also analogized the history/character/criminal conduct findings to the federal Guidelines provision in Section 3553(a). See id. at 199. Finally, it concluded, “[o]nce the defendant is adjudicated a persistent felony offender, the requirement that the sentencing justice reach an opinion as to the defendant‘s history and character is merely another way of saying that the court should exercise its discretion.” Id. at 201.
To reiterate our earlier discussion of New York‘s sentencing scheme: first felony offenders are generally subject to a low minimum and a maximum that varies greatly depending on the crime, see
Under both the Washington law at issue in Blakely and the California law challenged in Cunningham, the convicted defendant was “eligible for” or “subject to” a sentencing range with a high maximum.11 See Cunningham, 127 S. Ct. at 861-62; Blakely, 542 U.S. at 299, 124 S. Ct. 2531. However, before a sentencing court could exercise its discretion to impose a sentence in the range with the high maximum, it had to conclude that some aggravating or compelling circumstance justified it. See Cunningham, 127 S. Ct. at 861 (allowing for an enhanced sentence upon the finding of “circumstances in aggravation“); Blakely, 542 U.S. at 299, 124 S. Ct. 2531 (allowing for enhanced sentencing upon a finding of “substantial and compelling reasons“). In the absence of such findings, these sentencing courts lacked any discretion to sentence above the standard range that had a lower maximum. See Cunningham, 127 S. Ct. at 862; Blakely, 542 U.S. at 304, 124 S. Ct. 2531. Additionally, under both schemes, a decision to sentence above the standard range was reviewable for evidentiary sufficiency. See Cunningham, 127 S. Ct. at 861 n. 2; Blakely, 542 U.S. at 299-300, 304, 124 S. Ct. 2531.
New York‘s scheme is virtually indistinguishable in these respects. The law allows higher-tier, Class A-I sentencing when the sentencing judge has made factual findings related to a defendant‘s criminal history, character, and nature of the criminal conduct that justify the higher sentencing range. See
For the reader‘s benefit, we include a chart comparing the sentences that Blakely and Cunningham were subject to, see generally Cunningham, 127 S. Ct. at 861; Blakely, 542 U.S. at 299, 124 S. Ct. 2531, with the sentences petitioner Morris was subject to under the New York scheme.
| “Lesser” Sentence | Requisite Judicial Fact-Finding to Enhance Sentence | “Enhanced” or “Upper Tier” Sentence | |
|---|---|---|---|
| Washington Sentencing Law (Blakely) | “Standard” term of 49 to 53 months | “substantial and compelling reasons justifying an exceptional sentence” | 10-year Maximum Sentence |
| second-degree kidnapping with a firearm | |||
| California DSL (Cunningham) | “Middle” term of 12 years | “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime” | 16-year Maximum Sentence |
| continuous sexual abuse of a child under 14 | |||
| New York‘s Sentencing Scheme | Second Felony Offender Sentence-- | Two qualifying prior felony convictions | Indeterminate term of 15 years to life |
| (Morris) | indeterminate term of 1.5 to 4 years | AND | |
| Class E felony conviction | “the court . . . is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest” |
In addition, the statutory labels “history and character” and “nature and circumstances of [the] criminal conduct” can no longer (after Blakely/Cunningham) reasonably be described as the kind of judicial fact-finding constitutionally permissible, see Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), because they are amorphous and do not involve hard facts. The Blakely standard determined to be a jury question was only “substantial and compelling reasons,” see Blakely, 542 U.S. at 299, 124 S. Ct. 2531, while the corresponding test in Cunningham was “circumstances in aggravation,” see Cunningham, 127 S. Ct. at 861. If anything, the PFO statute‘s history/character/criminal conduct standard is less amorphous than those. Finally, Cunningham rejected the attempted analogy to the federal guidelines. See id. at 869-71.
To sum up, the PFO statute cannot be squared with the statement by Justice Ginsburg in her opinion for the Court in Cunningham: “If the jury‘s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Id. at 869.
d) Harmless Error
However, it is not enough to conclude that New York state courts have unreasonably applied the Sixth Amendment to Phillips, Washington, Morris, and Portalatin. The state also contends that any constitutional error in their sentencing was harmless. In light of our conclusion that the state court decisions affirming Besser‘s sentence were not unreasonable applications of clearly established law, we need not discuss this issue with respect to him.
Many constitutional errors are not such as to “necessarily render[] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). So long as the “defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Id. at 218, 126 S. Ct. 2546 (quoting Neder, 527 U.S. at 8, 119 S. Ct. 1827) (alteration in original). Accordingly, the Supreme Court has held that a state court‘s failure to submit a sentencing factor to the jury, a Sixth Amendment viola
In deciding whether the application of the unconstitutional statute to each petitioner was harmless, we must apply the Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), test and ask if the error “had substantial and injurious effect or influence” on the sentence. Id. at 631, 113 S. Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 2328, 168 L. Ed. 2d 16 (2007) (holding that a federal habeas “court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the substantial and injurious effect standard ... whether or not the state appellate court recognized the error ...“) (internal quotation marks omitted); Recuenco, 548 U.S. at 221-22, 126 S. Ct. 2546; Calderon v. Coleman, 525 U.S. 141, 145-47, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998) (per curiam) (holding that for habeas relief to be granted based on constitutional error in the capital penalty phase, the error must have had substantial and injurious effect on the jury‘s verdict in the penalty phase); Brinson v. Walker, 547 F.3d 387, 395 (2d Cir. 2008); Butler, 528 F.3d at 648.
The State bears the burden of persuasion in such cases, Fry, 127 S. Ct. at 2327 n. 3; United States v. Dominguez Benitez, 542 U.S. 74, 81 n. 7, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004), and “in cases of grave doubt as to harmlessness the petitioner must win,” O‘Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). Grave doubt exists when, “in the judge‘s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435, 115 S. Ct. 992.
In the present case, we believe it prudent to remand for further proceedings on the question of harmlessness. No district court made a detailed analysis of the harmless error issue with respect to the sentences for the four petitioners, and we do not believe the record on appeal is sufficiently developed for us to address the matter accurately in the first instance. We therefore remand the remaining four petitions for proceedings consistent with this opinion.
CONCLUSION
We have considered the parties’ remaining claims and find them to be without merit. For the foregoing reasons, we affirm the district court‘s order in Besser. We vacate and remand in Portalatin, Washington, Morris, and Phillips. Any subsequent appeal in any of the remanded cases should be referred for decision to this panel in light of the time it has invested in these matters. All parties to such an appeal are directed to inform the clerk of our instruction.
In re Hector M. ROMAN, Attorney.
Docket Nos. 08-9002-am, 07-9064-am.
United States Court of Appeals, Second Circuit.
April 6, 2010.