Opinion
06 Civ. 4095 (RWS).
July 25, 2007
Attorney for Petitioner, THE LEGAL AID SOCIETY, CRIMINAL APPEALS BUREAU, New York, New York, BY: PAUL WEINER, ESQ.
Attorney for Respondents, ATTORNEY GENERAL OF THE STATE OF NEW YORK, New York, New York, BY: LUKE MARTLAND, ESQ., MALANCHA CHANDA, ESQ., Assistant Attorneys General Of Counsel.
OPINION
Petitioner Vance Morris ("Morris" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
Prior Proceedings
Morris filed his petition on May 30, 2006, alleging that he is being held in state custody in violation of his federal constitutional rights.
Petitioner's state custody arises from his conviction on sixteen counts of criminal contempt in the first degree under New York Penal Law (" PL") § 215.51(b)(i) (eight counts) and § 215.51(b)(iii) (eight counts). His conviction was the result of a jury trial in the New York State Supreme Court, New York County, in January 2002. Following a hearing in accordance with New York Criminal Procedure Law ("CPL") § 400.20, Petitioner was sentenced on July 24, 2002, as a persistent felony offender pursuant to PL § 70.10. Petitioner was sentenced to two indeterminate prison terms of fifteen years to life, to run concurrently. His conviction was affirmed by the Appellate Division, First Department, on August 4, 2005, People v. Morris, 800 N.Y.S.2d 6 (N.Y.App.Div. 1st Dep't 2005), and leave to appeal to the New York State Court of Appeals was denied on September 27, 2005, People v. Morris, 837 N.E.2d 744 (N.Y. 2005). Petitioner is currently incarcerated at the Clinton Correctional Facility pursuant to his judgment of conviction.
Petitioner has challenged, on Sixth and Fourteenth Amendment grounds: (1) the imposition of an enhanced sentence pursuant to New York's persistent felony offender statute based on facts found by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt; and (2) the State appellate courts' rejection of his constitutional challenge as an unreasonable application of Blakely v. Washington, 542 U.S. 296 (2004). (Pet'r Mem. in Supp. 2.)
The respondents, Dale Artus, Superintendent of the Clinton Correctional Facility, and Eliot Spitzer, then-New York State Attorney General (collectively, the "State" or the "Respondents"), filed their opposition to the petition on September 7, 2006. Respondents have conceded that the petition was timely and that Petitioner's claims were exhausted in State court. (Resp'ts Mem. in Opp'n 10-11.) Respondents have also conceded that for the purposes of this petition, the universe of clearly-established federal law includes the Supreme Court's decision in Blakely, 542 U.S. 296. (Resp'ts Mem. in Opp'n 16-17 n. 13.)
Petitioner made an additional submission to the Court on March 30, 2007.
State Court Proceedings 1. The Crime
Four final orders of protection had been issued against the Petitioner when, on the evening of July 18, 2001, police officers responded to a radio report that an order of protection had been violated. (Tr. 279, 303.) The officers arrived at the apartment of Zelma White, the Petitioner's girlfriend. (Tr. 279-80, 297, 304, 312.) Ms. White informed the officers that despite existing orders of protection directing him to stay away from her, Petitioner had come to her apartment, repeatedly banged on her door, and threatened her. (Tr. 282, 287-88.) While the officers were at Ms. White's apartment, the Petitioner called on the phone and left two phone messages in which the Petitioner threatened to use physical violence against and to kill Ms. White. (Tr. 282-87, 298, 305-08, 313.) The Petitioner was arrested in the area of Ms. White's apartment several days later. (Tr. 320-22, 327-29.)
Following a trial in Supreme Court, New York County, a jury convicted the Petitioner of sixteen counts of criminal contempt in the first degree under PL § 215.51(b), a class E felony. (Tr. 494-99.)
2. The Persistent Felony Offender Hearing and Sentence
According to the Petitioner, based upon his criminal conviction, he faced a maximum sentence of two consecutive terms of two to four years' imprisonment, for a total sentence of four to eight years, pursuant to PL §§ 70.00(2)(d) and 70.06(3)(d). (Pet'r Mem. in Supp. 2.)
Following the jury verdict, however, the State announced its intention to seek sentencing pursuant to New York's persistent felony offender statute. Both parties filed submissions in contemplation of proceedings under the statute and a hearing was held in April and July 2002. The Petitioner conceded the prior felony convictions that the State attributed to him in satisfaction of the first prong of the persistent felony offender inquiry. The hearing therefore focused on the second prong of the inquiry: whether, based on the "history and character of the defendant and the nature and circumstances of his criminal conduct," the court was of the opinion that "extended incarceration and life-time supervision will best serve the public interest." N.Y. PENAL LAW § 70.10(2).
At the hearing, the prosecutor provided an account of Petitioner's criminal history, including his repeated violations of existing protective orders, the firing of a projectile into a female subway passenger's face in 1986, grabbing earrings from the ears of subway passengers in 1990 and 1992, public masturbation in 1997 and 1999, and grabbing a female subway passenger in 1999. (Hr'g Tr., Apr. 25, 2002, 30-60.) These criminal acts were in addition to the Petitioner's felony convictions for the attempted sale of crack cocaine and attempted third degree robbery, as well as several misdemeanor convictions and other wrongful acts. (Id. at 53-54, 57-58, 62-64.)
The Petitioner argued that he should not be sentenced as a persistent felony offender because his convictions involved only class E felonies, he had never been convicted of a violent felony, and he had been offered a plea bargain under which he would have served only one year's imprisonment if he had pled guilty to the offenses charged. (Hr'g Tr., July 24, 2002, 48-51.)
By a decision and order dated July 24, 2002, the court determined that the State had met its burden of establishing by a preponderance of the evidence that the Petitioner should be sentenced as a persistent felony offender. (Pet'r Mem. in Supp. App. at A32.) In support, the court made extensive findings of fact regarding the Petitioner's instant conviction and his history with respect to the complainant, Ms. White; Petitioner's additional criminal history; and Petitioner's "contemptuous and defiant behavior in court and in prison." (Id. at A27-A31.) The court then sentenced the Petitioner to two blocks of concurrent terms of fifteen years to life, with both blocks to run concurrently for a total sentence of fifteen years to life. (Id. at A32.)
3. Post-Sentencing Proceedings
On appeal to the Appellate Division, First Department, the Petitioner argued, among other issues, that New York's persistent felony offender statute violated his constitutional rights to due process and a jury trial. (Pet'r Mem. in Supp. 5.) The Appellate Division rejected the Petitioner's challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), as unpreserved. People v. Morris, 800 N.Y.S.2d 6, 7 (N.Y.App.Div. 1st Dep't 2005). In addition, the court indicated that were it to review the claim on the merits, it would be rejected. Id. (citing People v. Rivera, 833 N.E.2d 194 (2005); People v. Rosen, 752 N.E.2d 844 (2001),cert. denied 534 U.S. 899 (2001)).
Petitioner reasserted his constitutional challenge to New York's persistent felony offender statute in his application to appeal to the New York Court of Appeals. (Pet'r Mem. in Supp. 5.) That court denied the application to appeal on September 27, 2005. People v. Morris, 837 N.E.2d 744 (2005).
Discussion 1. The Habeas Standard of Review
Because Petitioner's Sixth Amendment claim is considered to have been "adjudicated on the merits" in the state court, see Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001), this Court may grant Petitioner's application for habeas corpus relief only if he can show that the Appellate Division's decision rejecting that claim 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). 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.; 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).
2. The New York Persistent Felony Offender Statute
a. The Statute
Blakely 542 U.S. 296
Under New York's persistent felony offender statute, a state sentencing judge may impose a higher sentence: (1) upon a finding that the defendant is a "persistent felony offender"; and (2) when the judge "is 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." N.Y. PENAL LAW § 70.10(2). The statute defines a persistent felony offender as "a person, other than a persistent violent felony offender . . . who stands convicted of a felony after having previously been convicted of two or more felonies. . . ." Id. § 70.10(1)(a).
The procedure for determining whether a defendant should be sentenced as a persistent felony offender is set forth in CPL § 400.20. When information available to the court indicates that the defendant is a persistent felony offender and the court is of the opinion that a persistent felony offender sentence may be warranted, a hearing may be ordered. See N.Y. CRIM. PROC. LAW § 400.20(2). In ordering such a hearing, the court must issue a statement setting forth the "factors in the defendant's background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender." Id. § 400.20(3)(b). The burden of proof is on the state. Id. § 400.20(5). A finding that a defendant is a persistent felony offender must be based upon proof beyond a reasonable doubt, whereas the standard of proof relating to the defendant's history and character and the nature and circumstances of the conduct is a preponderance of the evidence. Id.
The court may enter a finding that the defendant is a persistent felony offender and sentence the defendant accordingly if the uncontroverted allegations of the court so warrant and the defendant cannot present sufficient evidence to affect the court's decision. Id. § 400.20(8). However, where the uncontroverted allegations of the court are insufficient to support a persistent felony offender finding or warrant a persistent felony offender sentence, or the defendant has offered to submit evidence that may be sufficient to sway the court, an additional hearing may be held. Id. § 400.20(9). Upon a finding that the defendant is a persistent felony offender, as defined by the statute, the court must then:
make findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted. If the court both finds that the defendant is a persistent felony offender and is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant in accordance with the [persistent felony offender] provisions . . . of the penal law.Id. b. People v. Rivera
The New York Court of Appeals rendered its decision in People v. Rivera, 833 N.E.2d 194 (N.Y. 2005), cert. denied 126 S.Ct. 564 (2005), prior to the appellate court's decision in Morris and prior to the Petitioner's sentence becoming final on direct appeal.
In Rivera, the New York Court of Appeals examined whether New York's persistent felony offender statute violated the Sixth Amendment under Blakely, "The question before us is whether any facts beyond those essential to the jury's verdict (other than prior convictions or admissions) were necessary for the trial judge to impose the persistent felony offender sentence." Rivera, 833 N.E.2d at 197 (citing Blakely, 542 U.S. at 302-303).
Having considered the question posed, the Rivera court declined to overturn its prior holding in People v. Rosen, 752 N.E.2d 844 (N.Y. 2001), that proof of two prior felony convictions beyond a reasonable doubt is the "sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender." Rivera, 833 N.E.2d at 197 (citing Rosen, 752 N.E.2d 844). As stated further by the Rivera court, "Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing basedsolely on whether they had two prior felony convictions. Thus, as we held in Rosen, no further findings are required." Id. at 198.
With respect to the second prong of the inquiry required under PL § 70.10(2), the New York Court of Appeals indicated that this statutory language:
describes the exercise of judicial discretion characteristic of indeterminate sentencing schemes . . . the legislative command that sentencing courts consider the defendant's "history and character" and the "nature and circumstances" of the defendant's criminal conduct merely makes explicit what sentencing courts have always done in deciding where, within a range, to impose a sentence. . . . Once the defendant is adjudicated a persistent felony offender, the requirement that the sentencing justice reach an opinion as to the defendant's history and character is merely another way of saying that the court should exercise its discretion.Id. at 198, 200-01.
Therefore, as interpreted by the New York Court of Appeals, the state statute in question involves a sequential process. First, the sentencing court must determine whether the defendant meets the statutory definition of a persistent felony offender. Once that determination is made, the court must exercise its discretion, based on consideration of certain factors, in determining whether to impose an enhanced sentence. According to the New York Court of Appeals' interpretation of the statute, this second step does not involve any judicial factfinding within the meaning of Apprendi and its progeny.
c. Brown v. Grenier and Brown v. Miller
Although the Second Circuit has yet to review New York's persistent felony offender statute in light of the New York Court of Appeals' decision in Rivera and the Supreme Court's decision in Blakely, it has evaluated the constitutionality of the statute under the Supreme Court's precursor decisions in Apprendi, 530 U.S. 466, and Ring v. Arizona, 536 U.S. 584 (2002).
In Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) ("Brown I"), the Second Circuit distinguished the second prong of the New York persistent felony offender inquiry from the type of factfinding at issue in Apprendi. Brown I, 409 F.3d at 534-35. The type of facts involved in Apprendi and its predecessor decisions were characterized as "specifically enumerated in the statute as an essential element, or functional equivalent, that was necessary to sentence a defendant at the increased level." Id. at 534. By comparison, the second prong of the New York persistent felony offender inquiry was acknowledged to be "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. (internal citation omitted). The Second Circuit concluded in Brown I that the New York Court of Appeals had not unreasonably appliedApprendi when it concluded that the persistent felony offender determination "is something quite different" from the factfinding addressed in Apprendi and its predecessors. Id. at 534-35.
The following year, the Second Circuit assessed the impact of the Supreme Court's decision in Ring on New York's persistent felony offender statute. In Brown v. Miller, 451 F.3d 54 (2006) ("Brown II"), the Second Circuit maintained the distinction it had established in Brown I:
Ring did not expound upon the rule announced in Apprendi in a way that is significant to the disposition of this case. Both Ring and Apprendi involved statutes that required judges to find specified facts (i.e., judicial factfinding of an element of the crime) in order to impose an enhanced sentence, not the kind of "amorphous" determination required by New York's statute (i.e., a determination of the appropriateness of enhanced sentencing). . . . Each case involved a statute that required the sentencing judge to find some specified fact before imposing an enhanced sentence. The reasoning of Brown [I] — that the state court did not unreasonably apply Apprendi in distinguishing the kind of specific factfinding at issue in that case from the more general assessment required by the New York statute — therefore applies here.Brown II, 451 F.3d at 59.
In a footnote, the Second Circuit made it clear that its evaluation in Brown II did not address the New York Court of Appeals' decision in Rivera or the Supreme Court's decisions inBlakely and United States v. Booker, 543 U.S. 220 (2005). Id. at 59 n. 3.
d. District Court Conclusions Regarding Blakely 's Impact
In denying habeas petitions similar to that of Morris, several district courts have relied on the Second Circuit decisions inBrown I and Brown II as establishing that the New York persistent felony offender statute does not violate the Sixth Amendment. These courts have concluded that the Supreme Court's decision inBlakely did not materially alter the Second Circuit analysis regarding judicial factfinding pursuant to Apprendi and Ring.See, e.g., Phillips v. Artus, No. 05 Civ. 7974(PAC), 2006 U.S. Dist. LEXIS 45697, at *19-20 (S.D.N.Y. June 30, 2006); Alston v. Woods, No. 04 Civ. 8017 (WHP) (GWG), 2004 U.S. Dist. LEXIS 31466, at *11-15 (S.D.N.Y. Dec. 8, 2005); see also Woods v. Haponick, No. 05-CV-4374 (CBA) (JMA), 2006 WL 248022, at *10 n. 7 (E.D.N.Y. Aug. 25, 2006); Witherspoon v. Woods, No. 04-CV-5528 (JFB), 2006 WL 721510, at *4 n. 2 (E.D.N.Y. Mar. 6, 2006).
A recent exception is the granting of a similar habeas petition in Portalatin v. Graham, 478 F. Supp. 2d 385 (E.D.N.Y. 2007). In Portalatin, the court reached the opposite conclusion, determining that the Second Circuit's rationale in Brown I andBrown II regarding judicial factfinding does not survive Blakely.Portalatin, 478 F. Supp. 2d at 396-98. According to thePortalatin court, the distinction between the finding of specified facts and the more general assessment required under the New York persistent felony offender statute can no longer be maintained post-Blakely. Id. at 398. This conclusion hinges on the language of CPL § 400.20(9) requiring the sentencing court to "make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted" and the Supreme Court's statement in Blakely that "[w]hether the judge's authority to impose an enhanced sentence depends on finding of a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence." Blakely, 542 U.S. at 305.
In Portalatin, it was also concluded that the New York statute could not be saved by the New York Court of Appeals' interpretation in Rivera that the imposition of an enhanced sentence under the statute requires no judicial factfinding other than that of two prior felony convictions. Portalatin, 478 F. Supp. 2d at 403-05. While acknowledging the deference that must be accorded to state courts' interpretations of state statutes, the Portalatin court relied on Wisconsin v. Mitchell, 508 U.S. 476 (1993), to differentiate between the deference owed to state courts' interpretations of statutory text and that owed to interpretations of a text's operative effect:
Put another way, I defer to the Court of Appeals's conclusion with respect to what § 70.10 means, but I do not defer to its determination that, "[i]n practical terms, the legislative command" that findings of fact be made does not violate the jury trial right. The Court of Appeals's analysis, i.e., that the statute merely aims to make explicit "what sentencing courts have always done," and thus does not have unconstitutional effects, does not preempt my independent obligation to assess the constitutionality of the statute as the court itself construed it.Portalatin, 478 F. Supp. 2d at 405-06.
Finally, in considering the requisite deference owed under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), thePortalatin court concluded that the New York court's application of Blakely was both contrary to clearly established federal law and objectively unreasonable. Id. at 406. The court determined that the factual underpinnings of New York's persistent felony offender sentencing scheme were not materially distinguishable from the schemes struck down in Apprendi, Ring, and Blakely, in that they all required the finding of an additional fact or facts by a judge before the sentence could be imposed. Id. The court also concluded that based on its overall reasoning, the state court's decision was an objectively unreasonable application of the Apprendi rule. Id.
3. Analysis
As a practitioner of sentencing before the Guidelines, this judge remains a strong adherent of the view that judges should judge; that by their training, selection process, and experience, they are uniquely qualified to decide among the competing principles presented at the time of sentencing. This is recognized by sentencing judges' present role in evaluating the factors listed in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 259-61.
The determination of the appropriate sentence for each individual defendant is an agonizing and ad hominem process. In the regular exercise of what Judge Frankel referred to as "the most awful power of organized society," judges gain experience in sentencing and develop an irreplaceable context within which to evaluate defendants and criminal behavior in general.
Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 2 (1972).
This experience, combined with the transparency and knowledge of the procedure by which society determines and punishes those who violate its law, validates the role of the judge in determining whether or not "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." N.Y. PENAL LAW § 70.10. Judges have unique qualifications in this regard which cannot be acquired by a jury. Credibility is one thing, experience another.
There is a qualitative difference between factfinding forApprendi purposes and the judicial assessment conducted pursuant to the New York persistent felony offender statute, N.Y. PENAL LAW § 70.10(2). The second prong of the statutory inquiry here falls squarely within the purview that is the discretion of the sentencing judge.
The Second Circuit has concluded that, based on Apprendi andRing, New York's persistent felony offender statute does not violate the Sixth Amendment. In Blakely, the Supreme Court reiterated the rule that for Apprendi purposes, the statutory maximum sentence that a judge may impose is that based on the facts found by a jury or admitted by a defendant. Blakely, 542 U.S. at 303. The Court in Ring had similarly stated that "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. at 602. It therefore appears that, as other federal district courts have concluded, Blakely does not materially change the Sixth Amendment factfinding analysis. Rather, the Second Circuit has concluded that the second prong of the persistent felony offender inquiry does not constitute a factfinding for Apprendi purposes, and there is nothing in the holding of Blakely to alter this view.
Regardless of whether the distinction established by the Second Circuit in Brown I and Brown II is found to withstand Blakely, the New York Court of Appeals' interpretation of the statute inRivera takes the statute out of the zone of Sixth Amendment violation. Under the Rivera construction, a defendant becomes eligible for a persistent felony offender sentence once the sentencing court determines that the defendant had two prior felony convictions. Rivera, 833 N.E.2d at 198. Such a judicial finding of a defendant's prior conviction has been held not to violate the Sixth Amendment. See Apprendi, 530 U.S. at 490.
Therefore, under the Rivera court's construction, once the first prong of the inquiry is satisfied and the defendant is found to meet the statutory definition of a persistent felony offender, the prescribed statutory maximum for Apprendi purposes becomes life imprisonment. No other findings of fact are required to impose an enhanced sentence under the statute. See Rivera, 833 N.E.2d at 198-99. The second prong of the inquiry constitutes the sentencing judge's exercise of her discretion to sentence the defendant within the expanded statutory range and requires that the sentencing judge state her reasoning for imposing the particular sentence. In this way, the second prong of the persistent felony offender inquiry resembles the federal sentencing judge's assessment of the factors in 18 U.S.C. § 3553(a) and the statement of reasons for imposing a particular sentence pursuant to 18 U.S.C. § 3553(c).
Petitioner has asserted that the Rivera court was incorrect in concluding that the New York persistent felony offender statute does not involve factfinding within the meaning of Blakely because that is a question of federal law, not state law. The Second Circuit, however, has already concluded that the statute in question does not involve factfinding within the meaning ofApprendi and Ring, and that precedent is binding at the present time.
Furthermore, under the Rivera court's construction, whether or not the second prong of the inquiry involves factfinding in theApprendi sense is irrelevant, because the statutory maximum forApprendi purposes does not rely in any way on that second prong. Once the sentencing judge determines that the defendant meets the statutory definition of a persistent felony offender, which is only dependent on a finding of prior convictions permissible under the Apprendi line of cases, the statutory maximum is elevated. Any subsequent assessment of the history and character of the defendant or the nature and circumstances of the offense is used solely to determine where, within the enhanced statutory minimum and maximum, the sentence will be imposed.
Finally, while it does not constitute a decision on the merits, it is noted that the Supreme Court denied Rivera's petition for a writ of certiorari. See Rivera v. New York, 126 S.Ct. 564 (2005);Lyle v. Artuz, No. 03-CV-5155 (CBA), 2006 WL 1517750, at *11 n. 6 (E.D.N.Y. May 31, 2006) (noting "substantial efforts to obtain United States Supreme Court review," including amici curiae briefs in support).
Whether in agreement with the New York Court of Appeals' interpretation of the pertinent statutes, this court is bound by that court's construction of New York State law. See Ring, 536 U.S. at 603 ("Recognizing that the Arizona court's construction of the State's own law is authoritative"); Johnson v. Frankel, 520 U.S. 911, 916 (1997) ("Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State."); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law and we are bound by their constructions except in extreme circumstances" (internal citations omitted)); see also Lyle, 2006 WL 1517750, at *10-11 (refusing to reexamine the construction of New York's persistent felony offender statute as rendered inRivera). Although the Portalatin court came to a different conclusion based on Wisconsin v. Mitchell, 508 U.S. 476, that case has been repeatedly cited for the same proposition that a state court's interpretation of that state's own statute is binding on the federal courts. See, e.g., Romney v. Lin, 94 F.3d 74, 83 n. 6 (2d Cir. 1996); Dixon v. Pliler, 137 F. App'x 104, 104 (9th Cir. 2005); Vaughn v. Cambra, 103 F. App'x 276, 277 (9th Cir. 2004); Johnson v. Fleet Fin., Inc., 4 F.3d 946, 947 (11th Cir. 1993); Phaymany v. Taylor, No. Civ. 00-CV-2554-LNLS, 2007 WL 174147, at *17 (S.D. Cal. Jan. 9, 2007).
Conclusion
As construed by the New York Court of Appeals in Rivera, the New York persistent felony offender statute is not contrary to nor an unreasonable application of federal law as established inBlakely. Accordingly, for the foregoing reasons, the petition is denied.
It is so ordered.