Davis v. LaClair

Filing 16

MEMORANDUM AND ORDER. The petition for habeas corpus is denied and the Court will not issue a certificate of appealability. Ordered by Judge Margo K. Brodie on 4/9/2012. (Lee, Margaret)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERRY DAVIS, a/k/a GERALD MONROE,
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Petitioner,
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v.
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DARWIN LACLAIR, Superintendent,
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Great Meadow Correctional Facility,
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Respondent.
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NOT FOR PUBLICATION
MEMORANDUM & ORDER
07 CV 2511 (MKB)

BRODIE, United States District Judge:
Petitioner Jerry Davis, also known as Gerald Moore, brings the above-captioned habeas
corpus petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state
custody in violation of his federal constitutional rights. Petitioner’s claim arises from a judgment
of conviction after a jury trial for robbery in the first degree in the New York Supreme Court,
Kings County. Petitioner was sentenced as a persistent felony offender to 15 years to life
imprisonment. Petitioner appealed his conviction to the New York Appellate Division, Second
Department, claiming that (1) the prosecutor’s summation denied Petitioner his due process right
to a fair trial; and (2) Petitioner’s sentencing as a persistent felony offender was in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). The Appellate Division rejected Petitioner’s
claims and affirmed his conviction. People v. Davis, 812 N.Y.S.2d 890 (App. Div. 2006). The
New York Court of Appeals denied leave to appeal. People v. Davis, 6 N.Y.3d 893 (2006).
Petitioner asserts only one ground for relief in the instant application—that the state court

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unreasonably applied federal law in affirming his sentence as a persistent felony offender. For
the reasons set forth below, the petition is denied.
I.

Background
The evidence at trial established that on April 27, 2002, Petitioner approached a man with

a knife and demanded his money and his jewelry. (Pet. 3.) Petitioner then took the man’s watch
and tried to stab him. (Resp. Opp. 2.) On May 8, 2002, Petitioner was charged in an indictment
with robbery in the first degree, robbery in the third degree, grand larceny in the fourth degree,
criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in
the fourth degree. Id. Petitioner was convicted of first-degree robbery after a jury trial. The
People then moved for a hearing to determine whether Petitioner should be sentenced as a
persistent felony offender. (Pet. 4.) Petitioner was convicted in 1990 of second-degree
attempted robbery, a class D felony, and in 1998 of two counts of first-degree criminal contempt,
class B felonies. Id.
At the pre-sentence hearing on January 23, 2003, Petitioner’s counsel conceded
Petitioner’s prior felonies but argued that the People had failed to prove that Petitioner’s
“criminal history, his character, [and] the nature of his prior convictions” warranted a sentence as
a persistent felony offender. (Pet. Ex. E (“Pre-Sentence Hearing”) at 3.) In addition to arguing
that Petitioner’s prior convictions were generally non-violent offenses, Petitioner’s counsel
argued that the trial court should consider mitigating circumstances, including Petitioner’s
remorse and his ties to his family. Id. at 4-6. At the sentencing hearing, the trial court first found
that Petitioner had previously been convicted of two felonies and was a persistent felony
offender. (Pet. Ex. G (“Sentencing Hearing”) at 6). The trial court next concluded that based on
“the history and character of the defendant and the nature and circumstances of his criminal

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conduct . . . extended incarceration in [sic] lifetime supervision are warranted to best serve the
public interest” and stated its reasons for that conclusion on the record. Id. at 7-13. The court
imposed a sentence of 15 years to life. Id. at 15.
Petitioner appealed his conviction to the Appellate Division, raising a constitutional
challenge to the persistent felony offender statute, as well as a claim alleging prosecutorial
misconduct in the People’s summation. The Appellate Division held that Petitioner’s claims
were unpreserved, and, regardless, without merit.1 People v. Davis, 812 N.Y.S.2d 890 (App.
Div. 2006). The New York Court of Appeals denied Petitioner’s leave application. People v.
Davis, 6 N.Y.3d 893 (2006). Petitioner has therefore exhausted his state court remedies. See 28
U.S.C. § 2254 (b)(1) (“An application for habeas corpus . . . shall not be granted unless . . . the
applicant has exhausted the remedies available in the courts of the State.”).
II.

Discussion
a. Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), an application for a writ of habeas corpus by a person in custody
pursuant to a state court judgment may only be brought on the grounds that his or her custody is
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A petitioner is required to show that the state court decision, having been adjudicated on the

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Petitioner’s claim is not procedurally barred. Although federal habeas review is not
permitted where “the state court explicitly invokes a state procedural bar rule as a separate basis
for decision,” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990), federal habeas review is
permitted of an unpreserved Apprendi challenge to the persistent felony offender statute because
such a challenge is “interwoven” with federal law. Brown v. Miller, 451 F.3d 54, 57 (2d Cir.
2006).

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merits, is either “contrary to, or involved an unreasonable application of, clearly established
federal law” or “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).
For the purposes of federal habeas review, “clearly established law” is defined as the “the
holdings, as opposed to dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is
“contrary to,” or an “unreasonable application of,” clearly established law if the decision (1) is
contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different
than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies
the correct governing legal rule but unreasonably applies it to the facts of the petitioner’s case.
Id. at 412-13. In order to establish that a state court decision is an unreasonable application, the
state court decision must be “more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). The decision must be “objectively unreasonable.” Id. In addition, factual
determinations made by the state court are presumed to be correct, and the petitioner bears the
burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
b. Persistent Felony Offender Statute
Petitioner’s sole claim is that the state unreasonably applied federal law, specifically
Apprendi and its progeny, by affirming his sentence under New York’s persistent felony offender
statute. (Pet. 9.) In Apprendi, the Supreme Court held that “[o]ther 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.
The Supreme Court then clarified in Blakely v. Washington, 542 U.S. 296 (2004), that “the

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‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 303
(emphasis in original).
According to New York’s persistent felony offender statute, “[w]hen the court has
found, pursuant to the provisions of the criminal procedure law, that a person is a persistent
felony offender, and when it 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, the court . . . may impose the sentence of
imprisonment authorized by that section for a class A-I felony.”2 N.Y. Penal Law §70.10(2). To
do so, the court must first find beyond a reasonable doubt that defendant has two or more
felonies and, then, the court looks to the nature and circumstances of his or her criminal conduct
under a preponderance of the evidence standard. N.Y. Crim. Proc. Law § 400.20. The court is
required by law to set out its reasons in the record. N.Y. Penal Law §70.10(2).
The New York Court of Appeals addressed the constitutionality of the persistent felony
offender statute in People v. Rosen, 96 N.Y.2d 329 (2001). In Rosen, the New York Court of
Appeals construed the statute to require that that the court “first conclude that defendant had
previously been convicted of two or more felonies” before it is permitted to review the
defendant’s history and character. 96 N.Y.2d at 334-35. Rosen concluded that “[i]t is clear from
the foregoing statutory framework that the prior felony convictions are the sole determinate of
whether a defendant is subject to enhanced sentencing as a persistent felony offender.” Id.
Because the prior felonies are the “sole determinate” of the enhanced sentence, the persistent
felony offender statute does not violate Apprendi. Id. at 335. Four years later in People v.
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A sentence for a class A-I felony ranges from 15 years to life to 25 years to life. N.Y.
Penal Law §70.00(3)(a)(i).
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Rivera, 5 N.Y.3d 61 (2005), the New York Court of Appeals re-visited the issue, in light of
Blakely. Reiterating the statutory interpretation set forth in Rosen, the New York Court of
Appeals held in Rivera that the “sole determinate” of whether a defendant is subject to the
persistent felony offender statute is the defendant’s prior convictions and, therefore, the statute is
still constitutional after Blakely. Rivera, 5 N.Y.3d at 66.
Federal habeas courts are not bound by the state’s interpretation of federal law but are
bound by the state’s construction of its own law. Portalatin v. Graham, 624 F.3d 69, 84 (2d Cir.
2010). The “core principal” in deciding whether a sentencing scheme violates a defendant’s
Sixth Amendment rights is whether judicial factfinding “results in a sentence in excess of the
Apprendi maximum for a given offense.” Id. at 88. “The Apprendi maximum . . . is the apogee
of potential sentences that are authorized based on factual predicates obtained in compliance
with the Sixth Amendment: those found by the jury, those admitted by the defendant, and
findings of recidivism.” Id.
As the Court of Appeals for the Second Circuit recognized in Portalatin, the New York
Court of Appeals construed the persistent felony offender statute such that only the prior
felonies, and not any judicial factfinding, are factual predicates to the imposition of a class A-1
sentence. Id. at 89. Whether the Court “agrees or disagrees with the New York Court of
Appeals’ construction of New York law is of no moment. As the Supreme Court has long held,
‘state courts are the ultimate expositors of state law.’” Id. (quoting Mullaney v. Wilbur, 421 U.S.
684, 691 (1975)). Although Portalatin noted that it was bound only by the New York Court of
Appeals’ construction of the statute, not its determination regarding the statutes constitutionality,
Portalatin found that Rivera was not “merely a characterization” of the statute but rather “an
exposition of its terms.” Portalatin, 624 F.3d at 89. Accordingly, Portalatin held that “because

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the New York Court of Appeals has interpreted step two of the [persistent felony offender]
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 requirements invalidated in Blakely and Cunningham.”3 Id. at 91.
Thus, the Second Circuit decision in Portalatin determined that the New York persistent
felony offender statute does not violate a defendant’s rights under Apprendi. In addition, at
Petitioner’s sentencing, the trial court applied the persistent felony offender statute consistently
with the construction set forth by the New York Court of Appeals in Rosen and Rivera. The trial
court first determined that Petitioner was a persistent felony offender based on his prior felonies.
(Sentencing Hearing at 6.) Then, the trial court considered various other factors, including the
testimony of Petitioner’s sister and his prior misdemeanors, in deciding to impose a sentence as a
persistent felony offender, stating its reasons on the record. Id. at 7-13. The state court was not
unreasonable in affirming Petitioner’s sentence under the persistent felony offender statute. The
petition is therefore denied.4

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In Cunningham v. California, the Supreme Court struck down California’s determinate
sentencing law because the law allowed for judicial factfinding that could result in a sentence
above the Apprendi maximum. 549 U.S. 270, 293 (2007).
4
In an October 19, 2011 letter to the Court, Petitioner argues that, despite the Second
Circuit’s decision in Portalatin, this Court should find the persistent felony offender statute
violated Petitioner’s rights under Apprendi. Petitioner claims that such a conclusion would be
proper because the Supreme Court has never address the constitutionality of the New York
statute, and the Connecticut Supreme Court has found a virtually identical persistent offender
statute unconstitutional. (Pet’r 10/19/11 Letter at 1.) Although the Court recognizes that this
issue has been hotly disputed in recent years, and was undecided at the time this petition was
filed, the Second Circuit decided the question in Portalatin and that decision is binding on this
Court.
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III.

Conclusion
For the foregoing reasons, the petition for habeas corpus is denied and the Court will not

issue a certificate of appealability.
SO ORDERED.
Dated: April 9, 2012
Brooklyn, NY

________s/MKB___________
Margo K. Brodie
United States District Judge

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