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Second Circuit: New York’s Persistent Felony Offender Statute Held Constitutional in En Banc Ruling

by Matt Clarke

The Second Circuit Court of Appeals found that New York’s Persistent Felony Offender Statute (PFOS), N.Y. Penal Law § 70.10 , which allows enhancement of sentences for prior felony convictions, violated the Sixth Amendment to the U.S. Constitution. However, that finding was later reversed by an en banc ruling.

James Besser, William Phillips, Carlos Portalatin, Vance Morris and William Washington (petitioners), New York state prisoners, filed separate federal habeas corpus petitions pursuant to 28 U.S.C. § 2254 that challenged the constitutionality of the PFOS. They alleged that the PFOS violated the Sixth Amendment as clarified and controlled by Blakely v. Washington, 542 U.S. 296 (2004) [PLN, Aug. 2004, p.14]. The district courts granted relief for Portalatin and Washington but denied relief to the other three petitioners.
All five habeas cases were appealed, then consolidated.

The Second Circuit held that application of the PFOS would increase the sentences of the petitioners. The PFOS requires that the state trial judge find a defendant has two prior felony convictions, and that “the history and character of the defendant and the nature and circumstances of his criminal conduct” make it in the public interest to enhance the sentence. If such facts are found by the court, the defendant is given an indeterminate sentence of 15 years to life. The minimum PFOS sentence often exceeds the maximum sentence that could be imposed if the PFOS was not used to enhance the sentence.
Defendants sentenced under the PFOS may appeal the sentence enhancement. The state court of appeals may modify the sentence “in the interest of justice.”

The Second Circuit held that making sentencing enhancement dependent upon a ruling by the judge on facts other than the simple existence of previous convictions was contrary to Blakely, which requires that a jury make any findings of fact that could result in a sentence enhancement. However, prior to Blakely, the law was unsettled on whether this violated the Sixth Amendment.

Because Besser’s conviction became final before the Supreme Court decided Blakely, he could not receive relief due to the doctrine of nonretroactivity set forth in Teague v. Lane, 489 U.S. 288 (1988). However, the other petitioners were eligible for relief.

Yet this type of issue was subject to harmless error analysis pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993). Because none of the district courts had conducted an adequate harmless analysis and the issue had not been adequately briefed on appeal, the Second Circuit vacated the judgments of the district courts in the Portalatin, Washington, Morris and Phillips cases and remanded those cases for a harmless error analysis. The district court’s denial of Besser’s petition was upheld.

The petitioners were represented by New York City attorneys Richard M. Greenberg (Besser); Martin M. Locente of the Legal Aid Society (Phillips); Joshua Michael Levine (Portalatin); Andrew C. Fine of the Legal Aid Society (Morris); and Jonathan M. Kirshbaum (Washington). See: Bessler v. Walsh, 601 F.3d 163 (2nd Cir. 2010).

Upon rehearing en banc, however, the Second Circuit reversed the panel decision on October 18, 2010. The en banc Court of Appeals held that the state courts’ rejection of the petitioners’ argument that the sentencing courts had engaged in impermissible fact-finding when determining whether imposition of a PFOS sentence was warranted, and rejection of arguments that the PFOS statute required sentencing courts to engage in impermissible fact-finding before imposing a PFOS sentence, did not constitute an objectively unreasonable application of clearly established federal law.

Therefore, New York’s PFOS was not unconstitutionally applied and the grant of habeas relief to Portalatin was reversed, while the denials of habeas relief to Phillips and Morris were affirmed. Washington’s case was not addressed in the en banc ruling, as he had died while the appeal was pending and his petition was thus rendered moot. See: Portalatin v. Graham, 624 F.3d 69 (2nd Cir. 2010), petition for cert filed.

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Related legal case

Portalatin v. Graham