Wednesday, June 08, 2005

A Very Narrow Decision on New York's Persistent Felony Offender Law

Brown v. Greiner, Docket No. 03-2242(L) (2d Cir. June 3, 2005) (Walker, Leval, and Katzmann) (Op. by Leval): Too much has been made of this exceedingly narrow decision in the press (see, e.g., yesterday’s front page article in the New York Law Journal) and in the blogsphere (see, e.g., Professor Berman’s description of it as a “major habeas ruling”). Contrary to some accounts, this decision did not rule that New York’s persistent felony offender law comports with the Sixth Amendment as construed in the line of cases beginning with Apprendi (2000), running through Ring (2002) and Blakely (2004), and concluding (at least for now) with Booker (2005). Rather, this case holds merely that the New York courts’ determinations in 2000 and 2001 – when only Apprendi had been decided – that this law did not violate the Sixth Amendment was not an “unreasonable” reading of Apprendi, and thus that the writ should be denied under the AEDPA. This case says nothing about whether the state court decisions are correct in light of the post-Apprendi cases listed above. Indeed, it seems clear that the New York statute violates the rule of both Ring (2002) and Blakely (2004), even if it is not “unreasonable” to conclude otherwise vis-à-vis solely Apprendi.

The essentials are as follows. The Circuit denied the habeas writ to three § 2254 petitioners sentenced to extended prison terms under the New York persistent felony offender statute, N.Y. Penal Law § 70.10. The defendants each argued in state court that their extended sentences violated the Sixth Amendment as construed in Apprendi. The New York courts rejected this argument in 2000 and 2001 – after Apprendi but well before either Ring, Blakely, or Booker. In an opinion by Judge Leval, the Circuit concluded that the state courts’ determination that the persistent felon statute did not violate the Sixth Amendment was not an “unreasonable” interpretation of Apprendi, the only “clearly established” federal law “as determined by the Supreme Court” at the time of the state court decisions.

Section 70.10 requires two findings by the judge before she may impose the enhanced sentence: [1] the defendant must have been “previously convicted of two or more felonies,” and [2] the judge must be “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.” New York Penal Law § 70.10(2). The defendants’ core challenge was that finding [2] violates the Apprendi rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (Finding [1], of course, fits squarely in the Almendarez-Torres exception to the rule.). The state courts rejected this argument, and the defendants’ cases became final in 2000 and 2001.

The Circuit’s review of these decisions via the § 2254 petitions was necessarily deferential, restricted by AEPDA to upholding the decisions unless they were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d). Crucially, the reasonableness vel non of the state court decisions was to be considered only in light of the Supreme Court cases in existence at the time the state courts issued their decisions. And as noted, only Apprendi had been decided at this time.

The Circuit accepted the State’s argument that “the New York courts did not apply Apprendi unreasonably in concluding that the sentencing judge may make the determinations upon which persistent felony defender sentencing turns.” (p. 14). This was so because the “amorphous” finding that a persistent felon sentence is required “to serve the public interest” differed from the kind of fact-finding at issue in Apprendi.

As Judge Gleeson pointed out in granting habeas to one of the petitioners (only to be overturned by the Circuit), however, § 70.10 is functionally “identical” to the capital sentencing scheme struck down in Ring v. Arizona. Brown v. Greiner, 258 F. Supp.2d 68, 92 (E.D.N.Y. 2003). In the Arizona scheme ruled unconstitutional by Ring, a sentence of death – though theoretically authorized by a jury verdict convicting a defendant of first-degree murder -- was unavailable without a judge finding at least one aggregating circumstance and the absence of sufficiently substantial mitigating circumstances. See Ring v. Arizona, 536 U.S. 584, 592 (2002). Similarly, a Class A-1 felony-length sentence is unavailable for defendants under § 70.10 without finding [2], also made by the judge. For Judge Gleeson, this identity was diagnostic of the unreasonableness of the state court decision upholding the extended sentence under § 70.10: “[B]oth statutes require judicial findings, after a hearing, of at least one aggravating factor before the enhanced sentence is available, [and] both violate Apprendi.” 258 F. Supp.2d at 92.

This seems true enough – and the Circuit did not necessarily disagree with Judge Gleeson’s point. Rather, the Circuit side-stepped it by emphasizing (in a critical footnote) that under AEDPA and in light of the timing of the state court decisions challenged in the § 2254 petitions, “[t]he universe of ‘clearly established Federal law, as determined by the Supreme Court of the United States’” contains only Apprendi and the cases preceding it. Accordingly, Ring (as well as Blakely and Booker) was irrelevant to the determination at hand. The Circuit decided that it was reasonable for the New York court to conclude that the “vague, amorphous assessment” involved in finding [2] was “something quite different from the precise finding of a specific fact” in Apprendi. (p. 19) The idea is that finding [1] (the determination of prior convictions) sets the Class A-1 felony ceiling on the sentence, and finding [2] involves a court’s “traditional role” in deciding what sentence to apply below that maximum. (p. 20)

The Court’s reasoning is curious. Why is the vagueness of a factual finding sufficient to exclude it from the Apprendi rule? After all, a judge is still required to make factual findings, after a hearing, before she can impose an enhanced sentence under § 70.10. One is left wanting a more persuasive argument, particularly in light of Judge Gleeson’s point that Ring ultimately foreclosed the state courts’ reasoning. A better argument would have been that the Apprendi majority had flatly rejected a Ring-type argument in Apprendi itself. Recall that prior to Apprendi, Walton v. Arizona had upheld the capital sentencing scheme later overturned in Ring, and that Apprendi explicitly left Walton untouched. Over Justice O’Connor’s protests, Apprendi, 530 U.S. at 538 (O’Connor, J., dissenting), the Apprendi majority distinguished “state capital sentencing schemes requiring judges . . . to find specific aggravating factors before imposing a sentence of death.” Id. at 496 (opinion of the Court). Given the similarity between the Arizona scheme and § 70.10, Apprendi’s refusal to overrule Walton is compelling evidence that the New York courts’ determination that § 70.10 did not violate the Sixth Amendment was not an “unreasonable” reading of Apprendi.

Once the universe of review expands to encompass Ring, of course, the New York courts’ application of Apprendi becomes much less reasonable. Indeed, § 70.10 seems clearly to violate the rule of Ring. Moreover, Judge Leval’s attempt to distinguish the New York law on the basis of the “amorphous[ness]” of the finding required for an enhanced sentence founders in light of Blakely, which ruled that a state judge’s equally “amorphous” finding that the defendant had acted “with deliberate cruelty” in committing the offense cannot increase the statutory maximum. Accordingly, this decision is limited to cases that became final before any of the post-Apprendi cases had been decided.

A final note: The New York Court of Appeals has a case pending on direct appeal that raises the identical issue of whether § 70.10 violates the Sixth Amendment. In deciding this question on direct appeal, that Court must of course apply all the post-Apprendi cases and need not defer to any prior decisions (as AEDPA required in Brown v. Greiner). And according to the Court’s public summary of the issue, the defendants wisely base their arguments on both Ring and Blakely. One hopes the Court of Appeals will abide by these decisions in striking down § 70.10 as a violation of the Sixth Amendment.

(By James Darrow, a rising 3-L at Stanford Law School, and Yuanchung Lee).

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