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March 28, 2007

Habeas attack on NY persistent felony offender statute

A helpful reader noted to me a big recent habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  In Portalatin, EDNY District judge John Gleeson essentially disagrees with the New York's state court decision in Rivera that the state's discretionary persistent felony offender statute is constitutionally sound (background here and here).  Here is the start of Portalatin (which I will discuss more fully when I get a chance to read it more closely):

Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.

UPDATE:  Laura Appleman at Concurring Opinions has more on Portalatin here.

March 28, 2007 at 06:11 PM | Permalink


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» The Demise of Three Strikes in New York? from Concurring Opinions
When discussing modern sentencing, "three-strikes" laws ( laws which enhance sentences based on prior crimes and criminal history) are always a hot topic. Although California can lay claim to the most infamous three-strike law, New York has one as well... [Read More]

Tracked on Mar 28, 2007 11:02:44 PM


Portalatin presents an intriguing possibility I have not previously considered; whether a factual determination by a PROSECUTOR in deciding whether or not to indict a defendant under a state habitual felon law , or a federal armed career criminal statute, can constitute a Sixth Amendment violation ?

Here is the "horns of a dilemma" scenario presented by the reasoning in Portalatin.

Suppose the District Attorney in a large district decides to impose some consistency to the decisions as to when a person who is eligible for indictment under an Habitual Felon law will actually be indicted as such, and adopts a policy containing a set of criteria which must be met before an habitual felon indictment shall be sought. These criteria are very similar to the factors contained in New York's second step findings under the Persistent Felon law. As a matter of policy within the DA's office only those recidivists who commit a new felony AND meet the criteria are indicted under a three strike law.

So, under the jury verdict alone, the maximum sentence to which the def is exposed is the greatest sentence allowed for the basic crime, not enhanced by any Habitual Felon law. Under Portalatin's reasoning, Apprendi would prohibit a prosecutor from deciding the existence of one or more factors which satisfy the criteria and increase the maximum possible sentence.

At first blush, it seems far fetched that a decision by a prosecutor to subject one defendant, rather than another , to an habitual felon statute enhancement could violate the Sixth Amendment because it is not "judicial factfinding." Unless the sentencing system, like North Carolina's , employs a rigid , structured sentencing grid, which is based on multiple levels of mandatory minimum sentences for various crimes and various prior record levels. Then, as a matter of "effect not form" a prosecutor is exercising a judicial function because he is determining conclusively the minimum sentence a defendant shall receive.

The other horn is this. Suppose to avoid the Sixth Amendment problem of a factual determination having to be made under the "habitual felon eligibility policy", the prosecutor has no policy whatsoever, and the decision to apply the three strike law is administered on an ad hoc, totally arbitrary basis. Which runs afoul of a due process guarantee to be free from capricious, arbitrary punishment, which would constitute cruel and unusual punishment.

I'll have to ponder this new avenue of attack on the application of three strike laws, based on an acknowledgment that increasingly District Attorneys are in reality "judges in prosecutors clothing." Comments and criticisms welcome. I operate on a belief that, in the modern world of criminal sentencing run amok, no idea should be discarded as too bizarre. (because however bizarre the idea, criminal sentencing jurisprudence is more bizarre)

Bruce Cunningham

Posted by: bruce cunningham | Mar 28, 2007 11:31:42 PM

This case may show the limit of Apprendi.

Posted by: federalist | Mar 29, 2007 10:14:01 AM

been convicted of a drug felony in 1992, when i was 16 years old, and in 1994 for a fight in jail while serving time for the 1992 conviction, now i face pfo, status for a new felony, is this fair? none of my prior felonies where violent and this felony that am facing now is a violent felony burglary second degree, can this bee taking in consideration by the judge? am in the state of new york. i resived a 4 to 12 year sentence when i was 16 years old because i was trick into bringing drugs into this country from another country, i was 16 and ignorent of the law i plea guilty on advice of my court appointed lawyer and was sentence, after i plea guilty, now i face a long period of jail time because of these can anyone help thank you, i have never hurt no one in my life

Posted by: thomas | Mar 21, 2009 7:41:28 PM

the three strike law is administered on an ad hoc, totally arbitrary basis. Which runs afoul of a due process guarantee to be free from capricious, arbitrary punishment, which would constitute cruel and unusual punishment.

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