In Portalatin v. Graham, No. 07-1599, consolidated habeas petitions challenging the constitutionality of sentences imposed pursuant to New York's persistent felony offender (PFO) statute, the court affirmed the denials of the petitions where it was not unreasonable for the state court to identify a crucial distinction between the unconstitutional factfinding required under the statutes at issue in both Ring and Apprendi, and the discretionary assessment called for by the PFO statute.
As the court wrote: "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. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders."
- Full Text of Portalatin v. Graham, No. 07-1599