Friday, April 09, 2010

The Persistents of Apprendi

Besser v. Walsh, No. 05-4375-pr (2d Cir. March 31, 2010) (Winter, Sack, CJJ, Murtha, DJ)

While the blog does not usually cover habeas cases, this one is important, as it invalidates New York State’s discretionary felony persistent offender sentencing scheme. The decision involves five separate cases heard “in tandem,” which is what the circuit calls cases that present the same legal issue that are heard together but not formally consolidated.

In New York, a first-time felon usually faces an indeterminate sentencing range based on the grade of the offense of conviction. If the court finds that a defendant sustained a qualifying predicate felony, he faces an enhanced sentence as a second felon. A defendant with two prior felonies is a “persistent felony offender,” a designation that in many instances requires a minimum sentence that is greater than the maximum sentence authorized for a second felony offender convicted of the same offense.

Unlike second-felony treatment, which requires merely a finding that the predicate felony exists, persistent felon treatment requires a two findings. First the judge finds that the defendant has at least two prior felonies. This makes the defendant eligible for the enhanced sentence. But in order to impose the enhanced sentence, the court must also find that the “history and character of the defendant and the nature and circumstances of his criminal conduct” are such that it is in the public interest for the defendant to be subject to the longer term.

The New York Court of Appeals repeatedly rejected Apprendi challenges to this scheme even though it would seem fairly clear that it violates Apprendi. After all, Apprendi holds that, 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.” Under this scheme, the maximum is increased by fact-findings that are far more extensive than the mere existence of the prior conviction.

It is somewhat surprising to learn, then, the circuit did not find an Apprendi violation, per se. Rather, it found that the scheme violated Apprendi only as interpreted by Blakely. The reason derives from the habeas corpus standard of review, which constrains federal courts to look only at whether the state court’s interpretation of federal law - in this instance Apprendi - was “reasonable.” In fact, the circuit had twice upheld New York’s persistent felon scheme on Apprendi-based habeas challenges, holding that, despite Apprendi’s use of the phrase “any fact,” it was reasonable to read Apprendi to mean that “certain kinds of judicial fact-finding did not violate Apprendi even if it resulted in a sentence beyond the statutory maximum.”

In other words, according to the circuit, it was "reasonable" to read the word “any” to mean “some.” This is why we do not blog habeas cases.

According to the circuit, Apprendi’s “any” did not really stop meaning “some” until Blakely, which made it “unambiguously clear” that “any” meant “any,” and not “some.” So, in this decision the court at last holds that the New York persistent felony offender scheme violates not Apprendi, but Apprendi as interpreted by Blakely. That Apprendi alone was not enough to secure this result was bad news for one defendant, whose case, although otherwise identical to the other four, became final before Blakely was decided. This is another reason why we do not blog habeas cases.

Finally, instead of simply granting the petitions and ordering new sentencings for four post-Blakely defendants, the court remanded the case to the district court to address whether the application of the unconstitutional sentencing statute was harmless error.



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