Thursday, June 08, 2006

Yet Another Misreading of Apprendi and Ring and Their Application to New York’s Persistent Felon Statute

Brown v. Miller, Docket No. 05-5014-pr (2d Cir. June 7, 2006) (Cabranes, Sotomayor, Raggi): In this disappointing opinion, the Circuit relies on the same ad hoc reasoning it first used in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) (click here for our discussion), to reject the habeas petitioner’s claim that his sentence, imposed after the sentencing court determined that he was a persistent felon under N.Y. Penal Law § 70.10, violated the Sixth Amendment. The sole difference between this case and Greiner is that while this petitioner’s conviction became final after both Apprendi and Ring, the Greiner petitioner’s conviction became final after Apprendi but before Ring. This difference, in turn, alters the question presented on federal habeas in light of the AEDPA: While the question in Greiner was whether the state court’s decision upholding § 70.10 was an unreasonable application of Apprendi, the question here is whether the state court’s identical determination in this case was an unreasonable application of both Apprendi and Ring. The Circuit concludes that this is a distinction without significance and follows Greiner in rejecting the petition.

Section 70.10 requires two findings by the judge before s/he 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). In light of Apprendi’s holding that "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), the petitioner in Greiner argued that his enhanced sentence, based in part on finding [2], violated Apprendi. (Finding [1], of course, fits squarely under the Almendarez-Torres exception to the Apprendi rule).

The Circuit rejected this argument in Greiner, concluding that the state court did not act unreasonably in determining that 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. While Apprendi "involved findings of specifically enumerated facts that were necessary to increase sentencing ranges," 409 F.3d at 534, the New York statute involved "a vague, amorphous assessment of whether, in the court’s ‘opinion,’ ‘extended incarceration and life-time supervision’ of the defendant ‘will best serve the public interest.’" Id. (quoting § 70.10(2)).

The Circuit relies on the same ad hoc distinction, found nowhere in the Supreme Court’s cases, to dismiss the petition in this case. Nowhere does the Circuit explain why such a distinction should make a difference for Sixth Amendment purposes. If a court cannot impose a greater sentence based on a narrow judicial finding that the defendant committed the crime for racist reasons, as in Apprendi, why should it be permitted to do the same based on a broader judicial finding that "the nature and circumstances of his criminal conduct" (§ 70.10) warrants such a sentence? Opportunities for circumvention of the Apprendi rule abound under the Circuit’s "amorphous" evasion of the Sixth Amendment.

Greiner is thus bad enough. But as this Blog noted, it is arguably defensible given that the universe of relevant precedents under AEDPA was limited to Apprendi. As Judge Gleeson pointed out in granting the writ in one of the cases consolidated in Greiner (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 aggravating circumstance and the "absence of sufficiently substantial mitigating circumstances." 536 U.S. 584, 592 (2002). The latter finding is no less amorphous than finding [2] under § 70.10. Even assuming the validity of the Circuit’s "amorphousness" rescue of the state court in Greiner, therefore, no such assistance is available to the state court here, which acted after Ring was decided.

The Circuit’s sole response to this is that even Ring "involved a statute that required the sentencing judge to find some specified fact before imposing an enhanced sentence." Op. 9. Ring, of course, did not rely on this point in striking down the Arizona law. Nor did it distinguish the required finding of "one aggravating circumstance" from the required finding of the "absence of sufficiently substantial mitigating circumstances" in ruling that the statute as a whole violated Apprendi and the Sixth Amendment.

The sole bright spot is the Court’s explicit acknowledgment that the question of whether § 70.10 violates the Sixth Amendment in light of Blakely and Booker, in addition to Apprendi and Ring, remains open. Op. 9 fn.3. Additionally, the opinion does not rely upon or otherwise address the New York Court of Appeals’s equally but differently misguided decision in People v. Rivera, 5 N.Y.3d 61 (2005), which upheld § 70.10 against an Apprendi-Ring-Blakely-Booker challenge on direct appeal. Rivera did so by essentially rewriting the statute to permit an enhanced sentence based solely on finding [1] (and thus placing § 70.10 safely under the Almendarez-Torres umbrella). Op. 7. Click here for our critique of Rivera.


Anonymous Richard Willstatter said...

Should make an interesting cert petition. New federal habeas petitions will come along post-Rivera which will directly challenge the NY court's decision. Maybe those will be even stronger. It appears that the NY and 2nd Cir courts simply refuse to apply Apprendi and Ring.

June 8, 2006 at 8:41 PM  

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