Second Circuit Upholds Constitutionality of New York State’s Persistent Felony Offender Sentencing Scheme

October 18, 2010 by Marshall A. Mintz · Leave a Comment 

In Portalatin v. Graham, __ F.3d __, 2010 WL 4055571 (2d Cir. Oct. 18, 2010)(en banc), the Second Circuit, in a 9-3 split, held that the New York State courts did not unreasonably apply Supreme Court precedent when finding that the New York State Persistent Felony Offender sentencing statute (PFO) was Constitutional.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

§ 2254 Petition Addressing Resentencing Is Not Second or Successive, Even If Prior Petition Was Filed

June 24, 2010 by Marshall A. Mintz · Leave a Comment 

In Magwood v. Patterson, the United States Supreme Court held that a when a defendant files a § 2254 Petition which is granted, a subsequent § 2254 Petition challenging the new sentence is not “second or successive,” and therefore not subject to the constraints of § 2244(b) — which requires, among other things, leave from the Court of Appeals.

The Court held that the subsequent Petition was the first application challenging the new judgment, noting that the errors alleged were new — even those errors which could have been brought in the initial § 2254 Petition.

Appellate Counsel’s Failure to Raise a Meritorious Claim Leads to Habeas Relief

April 6, 2010 by Marshall A. Mintz · Leave a Comment 

In Ramchair v. Conway, 08-2004-pr (2d Cir. April 2, 2010), the Second Circuit found that appellate counsel’s failure to raise a claim that the trial court erred in denying a motion for a mistrial rose to the level of constitutional ineffectiveness, and that the New York Court of Appeals’ decision to the contrary was an unreasonable application of clearly established Supreme Court precedent.

The Second Circuit noted that evidence adduced in the district court (in the form of testimony from appellate counsel) established that the failure to raise the claim was not a strategic decision, but based on a mistaken belief that the claim had not been preserved.  Because the arguments raised by appellate counsel were “extremely weak” while the one omitted was “particularly strong,” the representation fell below the standards of reasonably competent performance.