June 8, 2005
The 2d Circuit's recent Apprendi habeas ruling and distinguishing finding offense facts from making sentencing judgments
The Second Circuit Blog today has this interesting commentary on the Second Circuit's notable ruling late last week concerning Apprendi's applicability to New York's persistent felony offender statute in Brown v. Greiner (basics here). That commentary laments that "too much has been made of this exceedingly narrow decision," and it correctly emphasizes that the Second Circuit's ruling was applying AEDPA habeas standards and that Brown "is limited to cases that became final before any of the post-Apprendi cases had been decided."
The lengthy critical discussion of Brown at the Second Circuit Blog merits a close read, and it concludes by noting that New York's highest court has a case pending on direct appeal that will require it to address directly whether New York's persistent felony offender statute is constitutionally sound in light of the post-Apprendi decisions in Ring and Blakely.
In a future post (and in a future article with the working title "Conceptualizing Booker"), I hope to explain why the ruling in Brown is perhaps not quite as "curious" as the Second Circuit Blog suggests. Let me preview my idea here and encourage comments from readers: the Second Circuit's decision in Brown, as well as the recent Ohio decisions which find Ohio's sentencing scheme largely dodges Blakely problems, both suggest there is an important constitutional distinction to be drawn between (1) finding offense facts that increase applicable sentences (which is now clearly a task for juries), and (2) making sentencing judgments that increase applicable sentences (which is a task that arguably can still be given to judges).
This proposed distinction between finding offense facts and making sentencing judgments dovetails somewhat with the offense/offender distinction developed in my Conceptualizing Blakely article, but it is not the exact same idea. Indeed, the offense/offender distinction cannot fully justify the Booker remedy, since federal judges applying advisory guidelines are still finding offense facts when determining the guidelines advisory ranges. But, what makes post-Booker sentencing different is that, as a result of the remedy devised by Justice Breyer, federal judges are now plainly required to make sentencing judgments using the 3553(a) factors concerning whether to follow the guidelines.
Put another way, the Apprendi-Blakely cases can (and perhaps should) be understood to demand only that juries have a role in finding legally essential offense facts, and these cases do not preclude a judges from making broader sentencing judgments based on facts of all sorts. (This idea also dovetails somewhat, but not perfectly, with the fact/law distinction emphasized by Judge Easterbrook in Carpenter last month.) Notably, support for this reading of the Apprendi-Blakely cases can be drawn from Justice Scalia's concurring opinion in Ring, where in a final paragraph he asserts that the Ring holding demands "that the jury must find the existence of the fact that an aggravating factor existed," but still allows states to "leave the ultimate life-or-death decision to the judge."
June 8, 2005 at 05:51 PM | Permalink
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While the CA2's ruling is indeed narrow, the Brown court's analysis of the operation of PL 70.10 could cause problems even after Ring and Blakely are considered. Neither the CA2 nor the NY Court of Appeals in Rosen recognized that CPL 400.20(9), which governs the sentencing procedure for PL 70.10, says the following:
"At the conclusion of the hearing the court must make a finding as to whether or not the defendant is a persistent felony offender and, upon a finding that he is such, must then make such 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 provisions of [PL § 70.10(2)]."
If the sentencing court does not make the necessary findings of fact, the increased sentence will be invalidated by the Appellate Division and remanded for additional findings on the record. A recognitioin of this factfinding requirement in CPL 400.20 may or may not have made a difference under the AEDPA standard, but if the New York Court of Appeals on direct review, or the CA2 on habeas review of post-Blakely sentences, continues to ignore this language in CPL 400.20, PL 70.10 may have continued validity. Regardless of the narrowness of the CA2's holding in this case, it's understanding of the actual sentencing procedures is of some concern for future cases.
Posted by: dz | Jun 9, 2005 1:13:05 PM
Nice insight, DZ. Do you feel better or worse now that the NY CofA has spoken to these matters in Rivera?:
Posted by: Doug B. | Jun 9, 2005 1:49:23 PM
Wow... What timing. Not sure if I feel better or worse, but it looks like the court split over the issue I noted above -- the meaning and importance of CPL 400.20(9). As Judge Kaye stated in her dissent: "I cannot agree with the Court that the Legislature's 'must' means 'need not.'"
I think you are right that the Supreme Court is unlikely to take this case, but I think the habeas issue will still be raised in federal district courts, and I think defendant's could still win. But it's a long shot. As the dissenters in Rivera note, the majority opinion may not accurately describe the actual operation of PL 70.10 in practice. After the majority's interpretation of state law, the Court of Appeals then applies federal precedent. Given the state law as the court interprets it, the application of federal law is correct (as the dissenters admit). But the state court's determination of state law is not beyond challenge in federal coruts. In the habeas context, the New York Court of Appeals' interpretation of the operation of PL 70.10 is logically antecedent to the application of the federal right to a jury trial. While AEDPA limits district courts' ability to review state court interpretations of federal law, the traditional ability for federal courts to review antecedent state law questions remains intact in the habeas context. With that power, I think a federal district court could look at Rivera and PL 70.10 and conclude that it really doesn't matter how the New York courts frame the issue because the procedures that are actually used violate the Apprendi-Ring-Blakely line of cases. While the rejection of state court determinations of state law seems a bit strange, there was a little of this already in two previous federal habeas cases involving PL 70.10. In Bresser v. Walsh the SDNY said that Rosen didn't deserve deference because it was not a "construction" but rather was a "metaphysical distinction." The district court in Brown v. Greiner said that the Rosen court's construction of PL 70.10 was "descriptively inaccurate." The Second Circuit didn't directly address that part of the district court's opinion in reversing Brown. So there still could be some action here in the federal courts, even if SCOTUS doesn't weigh in.
Posted by: dz | Jun 10, 2005 12:30:06 AM