No Angry Men

Portolatin v. Graham, No. 07-1599-pr (2d Cir. October 18, 2010) (en banc)

Earlier this year, a Second Circuit panel held that New York’s persistent felony offender (PFO) statute violated the right to a jury trial under Apprendi. See The Persistents of Apprendi, posted April 9, 2010. In this en banc opinion, authored by Judge Wesley, the full court changed course and held that the PFO scheme does not, in fact, violate Apprendi. The members of the original panel, along with Judge Pooler, dissented.

The PFO scheme provides for dramatic sentencing enhancements for certain recidivists, and those that are deemed PFO’s can be subject to a sentence far greater than statutory maximum they would otherwise face. Application of the PFO statute is a two-step process. The first step requires the prosecution to prove that the defendant has two or more qualifying prior felonies. Once this is established, the second step is for the sentencing judge to assess whether a PFO sentence is warranted, taking into account the defendant’s “history and character” and the “nature and circumstances of his criminal conduct.” The original panel concluded that step two violated Apprendi, which “prohibits … judicial factfinding” beyond the fact of a prior conviction that “result[s] in enhanced sentences.” But the en banc court disagreed.

Or, perhaps more accurately, the en banc court concluded that the New York courts’ conclusion that the PFO scheme did not violate Apprendi – because sentencing courts can impose a PFO sentence based on step one alone – was not an unreasonable application of federal law. Since the New York Court of Appeals “has interpreted step two of the PFO sentencing scheme as a procedural requirement that informs only the sentencing court’s discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the factfinding[s]” that are impermissible under Apprendi and its progeny.

And, while there might be an argument that step two requires a court to consider subsidiary facts about a defendant’s criminal history that stray beyond the boundaries of Apprendi’s fact-of-conviction rule, federal courts have not been uniform in applying that rule. Absent a clear Supreme Court holding on the question, in a habeas case, such an argument goes nowhere. “[I]f our Court cannot divine a clear answer from the [Supreme] Court’s existing holdings, AEDPA prevents us from faulting a state court for selecting one reasonable conclusion over another.”