Opinion
06 Civ. 4073 (RWS).
August 14, 2007
Attorney for Petitioner, ERNEST HAYES, 03-A-1558, Green Haven Correctional Facility, Stormville, New York, By: Ernest Hayes, Pro Se.
Attorney for Respondent, ROBERT M. MORGENTHAU, District Attorney, New York County, New York, New York, By: Sheryl Feldman, Esq., Assistant District Attorney, Of Counsel.
OPINION
Ernest Hayes ("Hayes" or the "Petitioner") has sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. For the reasons set forth below, the application is denied.
Prior Proceedings
A judgment of conviction was rendered on March 12, 2003, in New York State Supreme Court, New York County, convicting Hayes of one count each of attempted murder in the second degree, robbery in the first degree, burglary in the first degree, robbery in the second degree, and criminal possession of a weapon in the second and third degrees. He was sentenced to four concurrent prison terms of from twenty-five years to life, to run consecutively to two concurrent sentences of twenty-five years to life. The aggregate sentence of imprisonment is therefore fifty years' to life.
Hayes' conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied. People v. Hayes, 802 N.Y.S.2d 30 (N.Y.App.Div. 1st Dep't 2005), lv. denied, 5 N.Y.3d 882 (N.Y. 2005). His petition for a writ of habeas corpus was filed on May 30, 2006, and considered fully submitted on October 11, 2006.
The Facts
Petitioner was charged by a New York County Grand Jury with one count each of attempted second degree murder and first degree assault, three counts each of first degree robbery and burglary, two counts of second degree robbery, and one count each of weapon possession in the second and third degrees. Petitioner proceeded to trial before a jury on January 23, 2003. To simplify matters for the jury, the judge submitted for their consideration only one count each of attempted second degree murder, first degree burglary, first and second degree robbery, and second and third degree weapon possession. (Answer ¶ 8.) The jury convicted Petitioner of all of those charges on February 5, 2003, and Petitioner was sentenced on March 12, 2003.
1. The People's Case
According to the victim, Diego Vega ("Complainant" or "Vega"), some time during the early morning hours on March 14, 2002, Vega drove his van to the home of his girlfriend Tanya Normandia ("Normandia") at 555 FDR Drive, where Normandia resided with their child and Normandia's mother, stepfather, and niece. (Tr. 530, 551-552.) Vega parked the van in front of Normandia's building and headed toward the building, when he was approached by two men. One of the men, Petitioner, was holding a cigarette and asked for a light. Vega lit Petitioner's cigarette, turned his back to the two men, and proceeded to walk toward his girlfriend's building. (Tr. 552-554, 620-622.)
"Tr." refers to the transcript of the trial proceedings which on January 29, 2003.
According to Vega, Petitioner grabbed Vega's collar, stuck a gun to his neck, and told him to keep walking. (Tr. 554-555, 625, 634.) Vega offered to give the men everything he had, but Petitioner told him to "shut up," "keep going," and to listen to directions. (Tr. 557, 562.) As they approached the building, Vega assisted the two men in obtaining all of Vega's property. (Tr. 558-560, 630.)
Petitioner asked Vega if he had any money or drugs in his apartment, to which Vega responded in the negative. When they reached the building's entrance, the second man, Petitioner's cousin Hafiz Hayes ("Hafiz"), began fumbling with the keys he had taken from Vega until Vega directed him to the correct key. (Tr. 561-563.)
Once inside the building's stairwell, and with Petitioner still pointing a gun at Vega, Hafiz ordered Vega to put his hands out and wrapped them in duct tape, palms together. (Tr. 563-564, 631-632.) Petitioner and Hafiz then ordered Vega to get on the floor, at which point Vega dropped to his knees. Hafiz then wrapped duct tape around Vega's head, covering his entire face with the exception of a very small pinhole near Vega's mouth, which Vega claimed he had managed to create. The small hole enabled Vega to breath a little, although still not well. (Tr. 565-567.)
Vega was then pushed face down on the floor by the two men, who began kicking and beating him in the back of the head and neck with a hard object. According to Vega, he had the presence of mind to feign unconscicusness and upon doing so, the men stopped beating him. (Tr. 567-569.) Vega felt the door to the stairwell open and close a couple of times, and felt someone replace his hat on his head. Then, there was a "ringing sound" in Vega's head, although Vega testified that he didn't feel any gunshots hitting him, and he felt the door close one last time. (Tr. 569-572, 600-601.)
Vega managed to crawl up one flight of stairs to his girlfriend's apartment. (Tr. 573-575.)
Normandia testified at trial that she heard a loud noise that sounded like a gunshot at around 2:00 a.m. (Tr. 531, 542.) She then heard very loud knocking at her door. Looking through the door's peep hole, she could not see Vega's face because of the duct tape, but recognized his sweater. (Tr. 532-533, 542.) Normandia opened the door to find Vega "wrapped around with tape" and blood "everywhere." (Tr. 532-533.) After Normandia and her parents worked to remove the tape, her stepfather asked Vega what had happened. Normandia testified that Vega had told them that "two black guys had robbed him for his van" but that he did not know who they were. (Tr. 533.)
Normandia placed a call to 911 at around 2:11 a.m. (Tr. 534.) The audiotape of the call was admitted into evidence over the objection of defense counsel, who offered to stipulate to whatever facts the prosecution believed to be relevant on the tape. (Tr. 181-183.)
Shortly after Normandia placed the call to 911, two police officers arrived at Normandia's apartment. They found Vega on the floor, blood all over the walls and floor around him. Asked by the officers about what had happened, Vega responded that two black men wearing a lot of gold jewelry whom he didn't know had taken his van. (Tr. 41-46.) While Officer Fogg tended to Vega, Officer Waldron went down to the stairwell to guard the crime scene, where there was a large amount of blood and Vega's hat on the floor. (Tr. 46-47.)
Vega was taken to the hospital. After his head had been partially shaved, a neurosurgeon observed what were eventually identified as two gunshot wounds, an entry and exit wound, above Vega's right ear. A CAT scan revealed broken bone and foreign metal fragments in Vega's skull in the area of the two wounds. (Tr. 352-353, 360, 363-364.) Surgery was ultimately performed, during which at least three "sizable" metal fragments were removed from "the actual brain tissue." (Tr. 357-360.) The surgeon testified that she could not tell whether the bullet had entered the head directly or instead ricocheted off another object before entering Vega's head. (Tr. 373.)
Another deformed bullet fragment was recovered from inside Vega's hat found at the crime scene. (Tr. 62, 70-71, 76, 78.) Blood-stained tape and Vega's bloody clothing were retrieved from inside Normandia's apartment. (Tr. 57-59, 61, 80-82.)
At around 4:30 a.m. on the same morning as the offense, Petitioner phoned his girlfriend, Naomi Barrimond ("Barrimond"), and told her that they were going to move to Cleveland, Ohio that day. (Tr. 321, 323-324.) Petitioner and Hafiz arrived at her apartment around a half-hour later in Vega's van. Petitioner, Barrimond, her daughter, and Hafiz were in the van and on the road to Cleveland by 5:15 or 5:30 a.m. (Tr. 324-327.)
While stopped for a bathroom break, Barrimond noticed a gun in the front seat of the van. (Tr. 328-330.) Later, when a Pennsylvania Trooper tried to pull the van over for a minor traffic violation, Barrimond grabbed the gun from the front seat and put it in a green Eddie Bauer bag that held her baby's clothes. (Tr. 330, 343.) Petitioner refused to stop and a twenty-three-mile, high-speed chase ensued. When the van was finally stopped by several Pennsylvania Troopers, Petitioner, Hafiz, and Barrimond were all arrested and taken to the state police barracks, as was the van. (Tr. 214-217.)
A warrant to search the van was obtained and executed. (Tr. 221, 233.) During this time, Barrimond had told one of the officers about the gun in the bag. The bag was retrieved and the gun was found inside with five live bullets and one spent shell casing. (Tr. 224, 235-236, 240-243, 266-267.)
After running the van's plates, a Pennsylvania Trooper contacted the 7th Precinct Detective Squad in New York and notified them that they had individuals in custody with the van. The Pennsylvania Troopers then obtained a second warrant to search the van and seized clothing belonging to Petitioner and Hafiz, two rolls of gray duct tape, and two rolls of black electrical tape. (Tr. 245-246, 251-254.)
Petitioner and Barrimond were sent to county jail where Petitioner was housed in the "detox unit" and Barrimond in the women's unit. Petitioner attempted to get a note to Barrimond, encouraging her to say that Hafiz had showed up to get them with the van, that they didn't know where Hafiz had gotten the van, and that the gun belonged to Hafiz. (Tr. 281-287, 307, 313, 315-317; People's Ex. 25.)
The items seized from the van were sent to the New York police in a sealed condition. (Tr. 469-474.) No fingerprints were recovered from either the gun, magazine, bullets, or shell, from the two rolls of duct tape retrieved from the van, or from the pieces of tape retrieved from the crime scene. (Tr. 102-105, 112-115, 120-131.) The pieces of tape retrieved from the crime scene had not been taken from the rolls of tape removed from the van. (Tr. 139-145.)
The gun was tested and found to be operable. (Tr. 167-170.) The three bullet fragments removed from Vega's brain during surgery and the fragment retrieved from his hat could not be positively identified as being portions of the same bullet due to their deformity. However, they all bore some of the same rifling impressions and tool marks and their aggregate weight was less than that of a normal bullet, which allowed an expert to conclude that it was possible that the fragments were portions of the same bullet. In addition, the test fires from the gun and the largest of the four fragments both had right-hand rifling impressions, and the twists and width of the grooves were similar, allowing for the conclusion that it was possible that the fragment was fired from the gun retrieved from the van. (Tr. 409-413.)
An expert testified at trial that there was gunshot residue on both the jackets and pants worn by Petitioner and Hafiz at the time of their arrests. The expert further testified that the people wearing that clothing had either discharged a firearm or were within three to five feet from the discharge. However, he could not determine which garment had been worn by the shooter. (Tr. 452-459, 464.)
Vega identified both Hafiz and Petitioner out of separate line-ups at the 7th Precinct. (Tr. 585-586.) Vega also identified Petitioner at trial as the robber who had been holding the gun. (Tr. 554-555, 634.)
2. Motion for a Trial Order of Dismissal
3. Petitioner's Sentencing as a Persistent Violent Felony Offender
"S." refers to the transcript of Petitioner's March 12, 2003, sentencing.
Defense counsel asserted that Petitioner was not a persistent violent felon because on the same day that he was sentenced on the weapon offense, he was resentenced on the assault conviction, receiving concurrent time on both cases. Therefore, both cases qualified as only one predicate violent offense according to defense counsel. (S. 4-7.)
The court rejected the defense argument and held that Petitioner qualified for sentencing as a persistent violent felony offender. (S. 8-9.)
4. Petitioner's Direct Appeal
On appeal, Petitioner's submitted a brief raising six claims, including that: (1) the trial court's decision to admit the audiotape of Normandia's call to 911, where the audiotape was irrelevant and aroused the sympathy of the jury, violated Petitioner's right to due process under the Fourteenth Amendment; (2) the insufficiency of the evidence to prove Petitioner's intent to kill Vega violated Petitioner's right under the Fourteenth Amendment; (3) the sentencing court erred in ordering that Petitioner serve consecutive sentences; (4) Petitioner was erroneously adjudicated a persistent violent felony offender; (5) the third degree criminal possession of a weapon count should have been dismissed since it involved the same weapon as the second degree criminal possession count; and (6) the Petitioner's adjudication and sentence under New York's persistent violent felony offender statute was unconstitutional under the principles announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). (Answer ¶ 9; Resp't's Mem. in Opp'n, App. A at 2-3.) The district attorney's office filed a response brief, arguing that all of Petitioner's claims were without merit. (Answer ¶ 10; Respt's Mem. in Opp'n, App. B.)
In a decision and order dated October 6, 2005, the Appellate Division unanimously affirmed Petitioner's conviction. See Hayes, 802 N.Y.S.2d 30. The Appellate Division held:
The verdict convicting defendant of attempted murder was based on legally sufficient evidence and was not against the weight of the evidence. . . .
The court properly exercised its discretion in admitting an audiotape of an emotionally charged 911 call made by a testifying witness. . . . we conclude that the tape was not inflammatory, and that it was relevant to trial issues concerning the victim's physical condition. . . .
The court properly directed that the sentences for the robbery and weapon convictions be served consecutively to the sentences for the attempted murder and burglary convictions. . . .
We have considered and rejected defendant's remaining claims.Hayes, 820 N.Y.S.2d 30 (internal citations omitted).
Petitioner timely sought leave to appeal the Appellate Division's decision to the New York Court of Appeals, asking for review of the issues raised before the Appellate Division. In a decision dated November 16, 2005, the Court of Appeals denied Petitioner's application. Hayes, 5 N.Y.3d 882.
Discussion 1. The Petition Is Appropriate for Consideration in Part
First, the petition is timely. The Court of Appeals denied Petitioner leave to appeal on November 16, 2005. See id. Petitioner's conviction became final ninety days later, on February 14, 2006, the date his time to seek a writ of certiorari to the Supreme Court expired. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 534 U.S. 924 (2001). Petitioner had one year from that date, or until February 14, 2007, to file his petition. 28 U.S.C. § 2244(d)(1)(A). The petition, which was filed on May 30, 2006, was filed before that date and is therefore timely.
Second, Petitioner has exhausted his claims. A federal court may not consider the merits of a claim unless that claim was fairly presented to the "highest state court from which a decision can be had." Daye v. Attorney General, 696 F.2d 186, 191 n. 3 (2d Cir. 1982) (en banc), on remand, 712 F.2d 1566 (2d Cir. 1983), cert. denied, 464 U.S. 1048 (1984). On direct appeal, Petitioner presented his six claims to the Appellate Division. Petitioner also asked the Court of Appeals to review all six of his claims in his letter seeking leave to appeal, and thereby presented the issues to the highest state court that could hear them.
Finally, however, Petitioner has only presented three of his six claims in federal constitutional terms as is the requirement for habeas review by a federal court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). These three claims include Petitioner's Fourteenth Amendment claim regarding the admission of the audiotape of the 911 call, his Fourteenth Amendment claim regarding the sufficiency of the evidence to prove his intent to kill the victim, and his Sixth and Fourteenth Amendment claims regarding his adjudication and sentence under New York's persistent violent felony offender statute. The remaining three claims were not presented in federal constitutional terms, but rather were presented purely as matters of state law.
Accordingly, only Petitioner's claims pertaining to admission of the audiotape of the 911 call, the sufficiency of the evidence with respect to the attempted murder conviction, and Petitioner's sentencing pursuant to New York's persistent violent felony offender statute will be considered.
2. The Standard of Review
Because the Petitioner's claims were "adjudicated on the merits" in state court, see Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (state decision qualifies as an adjudication on the merits where it disposes of petitioner's federal claim on substantive grounds and reduces that disposition to judgment), this Court can grant Petitioner's application for habeas corpus relief only if he can show that the Appellate Division's decision rejecting those claims was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). A state court's factual determination "shall be presumed to be correct," and the petitioner has the burden of rebutting the presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Leslie v. Artuz, 230 F.3d 25, 31 (2d Cir. 2000), cert. denied, 531 U.S. 1199 (2001).
A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., for the Court). In order to prevail under the "unreasonable application" clause, Petitioner bears a "heavy burden" to show that the Appellate Division identified the correct governing legal principle from the Supreme Court's precedent but "unreasonably applie[d] that principle to the facts" of his case.Id.; accord Christie v. Hollins, No. 01 Civ. 11605, 2003 WL 22299216, at *2 (S.D.N.Y. Oct. 7, 2003). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "Under § 2254(d)(1)'s `unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (quoting Williams, 529 U.S. at 411). Rather, the state court's application of federal law must be "objectively unreasonable." Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 409).
3. The Appellate Division's Holdings Were Not an Unreasonable Application of or Contrary to Clearly Established Federal Law
a. Admission of the 911 Call Audiotape
First, Hayes has contended that admission of the audiotape of the 911 call violated his constitutional right to due process under the Fourteenth Amendment. The Appellate Division concluded that the audiotape was relevant and was not inflammatory, and that the trial court had therefore properly exercised its discretion under state law to admit the audiotape. Hayes, 802 N.Y.S.2d 30. The only question on habeas review is whether the evidentiary ruling constituted a violation of Petitioner's Fourteenth Amendment right to due process. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The Supreme Court has acknowledged a "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Crane v. Kentucky, 476 U.S. 683, 689 (1986). Even if the tape was admitted erroneously, however, "introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence `is so extremely unfair that its admission violates fundamental conceptions of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). Admission of prejudicial evidence does not violate a defendant's due process right "[w]here the prejudicial evidence is `probative of [an] essential element' in the case. . . ." Id. (quoting Estelle v. McGuire, 502 U.S. 62, 69 (1991)). "For the erroneous admission of other unfairly prejudicial evidence to amount to a denial of due process, the item must have been `sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Id. (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (internal quotation marks omitted)).
Here, the recording of the 911 call was not probative of any essential element of the case. Even if it had been, defense counsel offered to stipulate to any facts that the prosecution believed to be relevant to the case. However, the recording also was not "sufficiently material" either to provide the basis for conviction or to remove any reasonable doubt. The other testimony and evidence admitted at trial as to the manner and execution of the assault was substantial, including photographs of the bloody crime scene and medical and ballistics evidence and testimony.
It therefore cannot be concluded that the determination of the Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Accordingly, Petitioner's claim as to the audiotape of the 911 call is denied.
b. Proof of Intent Beyond a Reasonable Doubt
Next, Hayes has alleged in his petition that the evidence produced at trial failed to establish beyond a reasonable doubt that he had the requisite intent to kill Vega, a necessary element of the attempted second degree murder count.
"It is established that a defendant advancing a claim based on insufficiency of the evidence bears a very heavy burden." United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983) (citations omitted). He is entitled to relief only "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 324 (1979); accord Farrington v. Senkowski, 214 F.3d 237, 240-41 (2d Cir. 2000) (citations omitted).
In reviewing such a claim, the federal court must consider the evidence in the light most favorable to the prosecution, and draw all inferences in the prosecution's favor.Wright v. West, 505 U.S. 277, 297 (1992); Jackson, 443 U.S. at 324; Fama v. Correctional Servs., 235 F.3d 804, 811 (2d Cir. 2000) (citations omitted). "[A] reviewing court `faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'"Wright, 505 U.S. at 296-297 (quoting Jackson, 443 U.S. at 326).
"The crime of attempted second degree murder is committed when, with the intent to cause the death of another person, one engages in conduct which tends to effect commission of that crime."People v. Fernandez, 673 N.E.2d 910, 914 (N.Y. 1996); see also N.Y. PENAL LAW §§ 110, 125.25(1). In order to prove that Petitioner was guilty of attempted second degree murder, the People therefore had the burden of establishing that Hayes intended to cause Vega's death.
The evidence produced at trial was sufficient for the jury to reasonably infer that Hayes had the requisite intent to kill Vega. As the Appellate Division noted, the evidence presented at trial "established that defendant and a codefendant, acting in concert, bound, gagged and beat the victim and shot him in the head. This evidence warranted the conclusion that defendant intended to cause the victim's death." Hayes, 802 N.Y.2d 30.
Petitioner's Contentions regarding his lack of intent were reasonably rejected by the Appellate Division. First Petitioner contended that wrapping Vega around with duct tape would have been an inefficient method of murder and was instead intended to be a method of neutralization and gaging, and that Hafiz purposefully left Vega an air hole. (Rep't's Br. in Opp'n, App. A, at 29.) Such contentions were contradicted by Vega's testimony at trial that it was his own efforts that had created the air hole.
Second, Petitioner contended that if he had intended to kill Vega, he would have shot him in the first place, rather than wrapping him with tape, and that the gunshot was likely accidental or inadvertent and at least not an intentional part of the robbery plan. (Id. at 29-30.) Petitioner also noted that there was no evidence that either Petitioner or Hafiz had verbally threatened to kill Vega. (Id. at 30.) Based on the timing of the gunshot after Petitioner and Hafiz had beaten Vega to apparent unconsciousness, it was not unreasonable for a rationale trier of fact to infer that the defendants feared that they had gone too far with the beating and therefore shot Vega in an effort to "finish the job."
Since a court must draw all inferences in favor of the People when reviewing a claim for insufficiency of the evidence and presume that the trier of fact resolved any conflicts in favor of the prosecution, Hayes' contention that no rational trier of fact could have found the essential elements of the crime of attempted second degree murder beyond a reasonable doubt was properly rejected by the Appellate Division. It therefore cannot be concluded that the Appellate Division's determination in this regard was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Accordingly, Petitioner's claim as to the sufficiency of the evidence pertaining to his attempted second degree murder conviction is denied.
c. Sentencing Under New York's Persistent Violent Felony Offender Statute
Finally, Hayes has contended that his aggregate sentence of fifty years to life, which was enhanced as a result of two prior convictions that were neither submitted to the jury nor contained in the indictment, violated his rights to a jury trial and to due process of law pursuant to Apprendi, 530 U.S. at 466, and the Sixth and Fourteenth Amendments to the U.S. Constitution.
The Supreme Court held in Apprendi 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." 530 U.S. at 490 (emphasis added). New York's persistent violent felony offender statute requires the imposition of an enhanced sentence for a person "who stands convicted of a violent felony offense" if that person has "previously been subjected to two or more predicate violent felony convictions." See N.Y. PENAL LAW § 70.08.
Here, the record shows that all of the crimes for which Petitioner was convicted were violent felony offenses and he had previously been convicted of two other violent felony offenses, including a 1995 conviction for second degree assault and a 1997 conviction for attempted third degree possession of a weapon. See id. § 70.02.
It therefore cannot be concluded that the Appellate Division's determination in this regard was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). See, e.g., Garcia-Lopez v. Fischer, No. 05 Civ. 10340(RPP), 2007 WL 1459253, at *14 (S.D.N.Y. May 17, 2007) (citing Long v. Donnelly, 335 F. Supp. 2d 450, 465-66 (S.D.N.Y. 2004); Alexander v. Ercole, No. 06 Civ. 3377 (JG), 2007 WL 922419, at *7 (E.D.N.Y. 2007)) (denying habeas relief where petitioner claimed sentencing under New York's persistent violent felony offender statute violated the principles of Apprendi); see also Brown v. Greiner, 409 F.3d 523, 534 (2d Cir. 2005) (finding that determination of prior convictions "clearly falls withinApprendi's `fact of a prior conviction' exception"). Accordingly, Hayes' claim for relief based on the contention that his enhanced sentence as a persistent violent felony offender violated his rights under the U.S. Constitution must be denied.
Conclusion
Based on the foregoing reasoning, Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.