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March 31, 2010

Second Circuit rules NY Persistent Felony Offender law now clearly violates Blakely

Via a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law.  Here is a key paragraph from the start of Judge Winter's opinion for the panel:

We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute.  We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).  Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law.  We therefore affirm the denial of the writ as to Besser.   However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law.  Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.

It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court.  Any predictions, dear readers?

March 31, 2010 at 02:08 PM | Permalink


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"It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court."

My guess... both.

Posted by: NYC Lawyer | Mar 31, 2010 6:07:22 PM

Besser's lawyer didn't think to raise Besser's Sixth Amendment rights, so Besser is forever barred; but not the others -- they get review for harmless error, even though their lawyers shared the same failure. The only difference is the timing of the finality of the conviction -- before or after Blakely. Seems unfair, doesn't it? If it is wrong after Blakely, then it was wrong before Blakely. Only law holds such unreasonable and fallacious conclusions based on faulty logic -- not other fields, such as medicine or science. American law should be more even handed. The man in the street has no idea how the law works until he enters 'the system.'

Posted by: layperson | Apr 1, 2010 4:06:44 AM

Well, the argument is that Blakely doomed the system at issue, where under Apprendi it was merely questionable but not a foregone conclusion. I tend to agree that more of the post-Apprendi challenges should have succeeded, but, largely driven by a fear of applying Blakely retroactively, most courts have said that they really didn't know these sentencing schemes were doomed until after Blakely. (Indeed, here New York wants to say it wasn't even clear *after* Blakely.)

In any event, although the argument might strike you as unfair and I agree it is a thin line, I don't think it is arbitrary or irrational.

Posted by: MJG | Apr 1, 2010 10:23:06 AM

So wouldn't NY be able to save this system by minor legislative tweaks? Basically change the analysis from 2 prior convictions plus bad character evidence being required to authorize the higher range (that's how the panel sees it and for now their interpretation is the one that matters)to one in which the convictions alone are enough but that gives judges some sort of escape valve?

I can see a state not wanting to do that, since it would likely mean more offenders being judged worthy of the longer sentence and thus be more expensive. But it also seems like it wouldn't have any Blakely problems.

Posted by: Soronel Haetir | Apr 1, 2010 10:50:29 AM

Does the 2d Circuit's analysis call into question the handful of States (including FL and DE) that still allow judges to make the penultimate decision in death penalty sentencing? To date, most of the State courts under such schemes have found that the Apprendi jury requirement only applies to the "death eligibility" factor. But those schemes generally then require a "finding" that aggravating factors outweigh mitigating before the death penalty can be imposed. The 2d Cir. opinion reads both Blakely and Cunningham to say that when the maximum sentence for an "eligible" defendant can only be imposed with further findings, then the jury must make not only the necessary eligibility finding but also those addtional factors necessary to impose the maximum. This would seem to condemn all judge capital sentencing schemes.

Posted by: gary myers | Apr 2, 2010 1:28:51 PM

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