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En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute

By Douglas A. Berman

It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on.  Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here).  Here is how the majority opinion (per Judge Wesley) gets started: Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York?s persistent felony offender statute, N.Y. Penal Law § 70.10.  Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences.  Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v...continue to full post

Full post as published by Sentencing Law and Policy on October 18, 2010 (boomark / email).