Besser v. Walsh

Full title: JAMES BESSER a/k/a JAMES ZERILLI, Petitioner, against JAMES WALSH…

Court: United States District Court, S.D. New York

Date published: Nov 26, 2003

02 Civ. 6775 (LAK) (AJP) (S.D.N.Y. Nov. 26, 2003)

Opinion

02 Civ. 6775 (LAK) (AJP)

November 26, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

In Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 (S.D.N.Y. Sept. 10, 2003) (Peck, M. J.) (hereinafter "Besser F'). familiarity with which is assumed, I recommended denial of Besser's habeas claims challenging his conviction for enterprise corruption, while reserving decision on Besser's habeas claim challenging his persistent felony offender sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (Dkt. No. 1: Pet. ¶ 13, incorporating Dkt. No. 1: Appendix [" App."]: Besser Ct. App. Br. at A72-85). Judge Kaplan affirmed my Besser I Report and Recommendation on November 13, 2003, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003). (See also Dkt. No. 20:11/13/03 Order). This Report and Recommendation now addresses Besser's Apprendi sentencing claim.

For the reasons set forth below, this Court joins two district judges in this Circuit (Eastern District Judge Gleeson and Southern District Judge Hellerstein) and two state court judges in finding that NewYork's persistent felony offender statute violatesApprendi: accordingly, Besser's Apprendi habeas claim should be granted and the State directed to re-sentence Besser consistent with this Report and Recommendation.

The Court notes that these decisions holding that New York's persistent felony offender sentence-enhancing statute (Penal Law § 70.10) violates Apprendi will not open the floodgates to claims by other petitioners:

According to research being conducted by Martha G. Rayner, a professor who runs the criminal defense clinic at Fordham University School of Law, 352 defendants have received discretionary enhanced sentences in New York in the last 10 years. Only defendants whose direct appeals were ongoing at the time Apprendi was decided [June 26, 2000] can seek challenges. . . .

Tom Perotta, "Court of Appeals' Persistent Offenders Ruling Faces Challenges by Other Judges," N.Y.L.J., Nov. 17, 2003, at 1, 8.

FACTS ¹

1 The facts relevant to all of Besser's habeas claims are set forth at length in Besser I, 2003 WL 22093477 at * 1-14. This Report and Recommendation repeats only the facts relevant to Besser's Apprendi claim.

Background

On November 19, 1994, the jury found Besser guilty of enterprise corruption, Penal Law § 460.20, based on his membership in the Mafia and three "pattern acts." "All three of the crimes [pattern acts] for which Mr. Besser was found guilty stem from his . . . involvement with . . . Steven Lane, the former owner of a C-Town-turned-Associated supermarket in Brooklyn." (Dkt. No. 17: Besser 1st Dep't Br. at 4.) The first degree robbery charge (Pattern Act Four) involved Besser's participation in the robbery of that supermarket. "The second-degree grand larceny charge [Pattern Act Seven] involved money Lane . . . paid to Mr. Besser's co-defendant, Jerry Ciauri, for 'protection,' and groceries Mr. Besser . . . took from the supermarket without paying. The fourth-degree grand larceny charge [Pattern Act Nine] involved . . . money Lane gave to Mr. Besser in exchange for a number of checks that bounced. . . . On the basis of these three 'criminal acts,' Mr. Besser was found guilty of enterprise corruption. . . ." (Besser 1st Dep't Br. at 4-5, 27; see Trial Transcript ["Tr."] 6776-801.)

"Enterprise corruption is a class B felony." Penal Law § 460.20. Without enhancement, the sentence fora class B felony is an indeterminate sentence with a maximum of three to twenty-five years imprisonment and a minimum of between one year and one-third of the maximum term (i.e., 8-1/3 years). Penal Law § 70.00(1)-(3); see also pages 59-60 below.

Sentencing

On September 7, 1995 and November 3, 1995, Justice Fried heard testimony and arguments regarding whether Besser should be adjudicated a persistent felony offender under Penal Law § 70.10.² (Dkt. No. 17:9/7/95 11/3/95 Hearings.) Besser presented one witness, the attorney who had represented Besser at his 1984 Richmond County guilty plea allocution, and argued that Besser had been coerced to plead guilty in the Richmond County case in violation of his Sixth Amendment rights. (11/3/95 Hearing Tr. at 3-29, 36-40.) Besser's defense counsel, Peter Quijano, also argued that the court should exercise its discretion and not sentence Besser as a discretionary persistent felony offender, since Besser was only a "follower." (Id. at 40-45, 54-56.) Quijano suggested that a sentence of twelve and a half to twenty-five years as a predicate felon is a "serious sentence" and sufficient, and thus it was not necessary to sentence Besser as a persistent felony offender. Id. at 43-44.)

2 Penal Law § 70.10 provides, in relevant part:
1. Definition of persistent felony offender.

(a) A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies. . . .

2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record.

Penal Law § 70.10. The sentence authorized for a Class A-I felony is a minimum of between fifteen and twenty-five years, and a maximum of life imprisonment. Penal Law § 70.00(1)-(3).

On December 6, 1995, Justice Fried issued a written decision adjudicating Besser a persistent felony offender under Penal Law § 70.10. (Dkt. No. 17: 12/6/95 Justice Fried Opinion.) Justice Fried found two prior felony convictions: Besser was convicted in the United States District Court for the District of Maryland of federal counterfeiting offenses ( 18 U.S.C. § 472, 474, 2) on January 20, 1982 and sentenced to four years in prison, and on July 17, 1984, Besser pleaded guilty in Supreme Court, Richmond County, to third degree attempted possession of a weapon and was sentenced to 1-1/2 to three years in prison. (12/6/95 Justice Fried Opinion at 4.)

In addition, based on Besser's 1976 through 1993 arrests, convictions (including additional misdemeanor convictions), and parole violations, as well as Besser's involvement with organized crime since 1979, and information relating to Besser's murder attempts (not charged in the present case) and a "brutal beating" for which charges were pending in New Jersey, Justice Fried found, as required by Penal Law § 70.10(2), that Besser's "'history and character'" and "'the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required.'" (12/6/95 Justice Fried Opinion at 2, 8-15.)

On December 11, 1995, Justice Fried sentenced Besser, as a persistent felony offender, to fifteen years to life imprisonment.³ See People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). (See also Dkt. No. 17: Besser 1st Dep't Br. at 29.)

3 The State has been unable to locate the December 11, 1995 sentencing transcript. (See Dkt. No. 15: 7/31/03 A.D.A. Beder Letter to Court, at 1.)

Besser's Appeal to the New York Court of Appeals

Represented by the Office of the Appellate Defender, Besser's November 30, 2000 brief to the New York Court of Appeals asserted for the first time that the trial court had violated his constitutional rights underApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), by finding, by a preponderance of the evidence, that Besser's character and the nature of his criminal conduct warranted a harsher penalty (the "Apprendi Claim"). (Dkt. No. 1: App.: Besser Ct. App. Br. at A72-85⁴; App.: Besser Ct. App. Reply Br. at A316-21.)

4 Besser briefly raised the issue of preservation of the Apprendi claim. "The [Apprendi] claims raised here are not foreclosed because Mr. Besser did not assert them below, since they implicate jurisdictional requisites and the mode-of-proceedings prescribed by law. . . . Finally, a claim that the court imposed a sentence in violation of law maybe raised for the first time on appeal notwithstanding the absence of objection." (Besser Ct. App. Br. at A84-85.) The prosecutor's opposition brief to the Court of Appeals addressed only the merits of the Apprendi claim, and did not raise any procedural arguments. (See Dkt. No. 8: Ex. H: State Ct. App. Br. at 99-112.)

On May 1, 2001, the New York Court of Appeals unanimously affirmed Besser's conviction, addressing Besser's Apprendi claim in a single paragraph, as follows:

Further, as Besser failed to raise his challenge to the constitutionality of the discretionary persistent felony offender sentencing statute before the sentencing court, the issue is not properly before us for review (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 [(2001)]). His remaining claim of sentencing error has been reviewed and determined to be lacking in merit.

People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 (2001).

ANALYSIS ⁵

5 The appropriate AEDPA review standard is discussed in Besser I, 2003 WL 22093477 at *14-16.

Besser claims that the enhancement of his sentence under the discretionary persistent felony offender sentence provisions, set forth in Penal Law § 70.10 and C.P.L. 400.20, violated his right to trial by jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). (Dkt. No. 1: Pet. ¶ 13, incorporating Dkt. No. 1: App.: Besser Ct. App. Br. at A72-85.)

I. BACKGROUND: NEW YORK'S ENHANCED SENTENCING PROVISIONS

New York's sentencing structure provides for enhanced sentences for second felony offenders, and for persistent felony offenders (i.e., someone who has two or more prior felony convictions).

A second felony offender is, as the name implies, someone who has a prior felony conviction. Penal Law §§ 70.04, 70.06.⁶ In such a case, the sentencing court must impose an enhanced sentence, based solely on the fact of the prior felony conviction. (See pages 58-59 below.)

6 Penal Law § 70.04 applies to second violent felony offenders while § 70.06 applies to second felony offenders other than second violent felony offenders.

New York's two persistent felony offender sentence-enhancing statutes recently were aptly summarized by Judge Gleeson, as follows:

New York has two sentence-enhancing statutes for persistent felony offenders. One is the persistent violent felony offender provision in N.Y. Penal Law § 70.08, which practitioners of criminal law in New York often refer to as the "mandatory" one. That statute applies to defendants who stand convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and have previously been convicted of two or more predicate violent felonies (as defined in N.Y. Penal Law § 70.04(1)(b)). Such defendants receive an indeterminate sentence of imprisonment, the maximum of which must be life. Minimum terms are prescribed by the statute as well and vary depending on the grade of the offense of conviction. See N.Y. Penal Law § 70.08(3) Under § 70.08, "the court must impose" an enhanced penalty once it finds that the predicate convictions occurred, id. at § 70.08(2) (emphasis added), hence the use of the shorthand "mandatory" to describe that form of sentence enhancement.

The second persistent felony offender statute is N.Y. Penal Law § 70.10. This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.08. It characterizes as a "persistent felony offender" any defendant who stands convicted of a felony and has two prior felony convictions (whether or not they are for violent felonies) as defined in the statute. See N.Y. Penal Law § 70.10(1)(a)-(c). As an enhanced penalty for such offenders, § 70.10 provides that, in lieu of the sentence otherwise authorized by the penal law, persistent felony offenders " may" be sentenced as though the offense of conviction were a class A-1 felony. Id. (emphasis added). For defendants like the petitioner here, the enhancement is severe. . . .

Unlike the enhanced sentences prescribed by the persistent violent offender provision, which again are mandatory, the enhancement under § 70.10 does not necessarily follow once a defendant is found to have the requisite prior convictions. Rather, another step is required. After the defendant is determined to be an eligible recidivist, the sentencing court must conduct a hearing to determine whether "it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest." Id. at § 70.10(2); see also N.Y. Crim. Proc. Law ("CPL") § 400.20. Only if the court reaches that "opinion" and supports it with sufficient factual findings may the enhanced (i.e., A-1 felony) punishment be imposed. This form of sentence enhancement is therefore referred to as the "discretionary" persistent felony offender punishment.

Brown v. Greiner, 258 F. Supp.2d 68, 71-72 (E.D.N.Y. 2003) (Gleeson, D.J.); see People v. Cephas, No. 5473/01, 2003 WL 21783355 at *1-2 (Sup.Ct. N.Y. Co. May 23, 2003): see also pages 62-64 below.

The key issue in Besser's habeas petition, as in Brown, is whether New York's discretionary persistent felony offender sentencing statute, Penal Law § 70.10, is constitutional in light of the Supreme Court'sApprendi decision. Judge Gleeson in the Eastern District, and Judge Hellerstein in two cases in this District, have held that New York's discretionary persistent felony offender statute, Penal Law § 70.10, is unconstitutional in light of Apprendi. Brown v. Greiner, 258 F. Supp.2d at 93; see also pages 73-74 fn.62 below. Two state trial courts also have found Apprendi problems with Penal Law § 70.10. People v. West, N.Y.L.J., Nov. 17, 2003, at 18 (Sup.Ct. N.Y. Co. Nov. 17, 2003):People v. Cephas, No. 5473/01, 2003 WL 21783355 at *4 (Sup.Ct. N.Y. Co. May 23, 2003); see also pages 75-76 below. This Court is in agreement with Judges Gleeson and Hellerstein, and the two state court judges, that Penal Law § 70.10, as here applied, violates Apprendi.

In the next three sections, the Court determines: (1) that the New York Court of Appeals' decision on Besser's Apprendi claim was not based on an independent and adequate state procedural ground barring habeas review; (2) that "clearly established" Supreme Court law for purposes of AEDPA review includes both Appendi and Ring: and (3) that Penal Law § 70.10 as applied to Besser violated Apprendi, and that the New York Court of Appeals' decision to the contrary is an unreasonable application ofApprendi.

II. THIS COURT IS NOT PRECLUDED, ON INDEPENDENT AND ADEQUATE STATE GROUNDS, FROM CONSIDERING BESSER'S APPRENDI CLAIM ON THE MERITS

The State asserts that because the New York Court of Appeals found Besser's Apprendi claim to be unpreserved at the trial level and thus procedurally barred from appeal, this Court is precluded from considering the Apprendi claim on the merits. (Dkt. No. 10: State Br. at 42-46.) In the State's view, the New York Court of Appeals' decision on procedural grounds constituted an independent and adequate state ground barring habeas review. (Id.) This Court disagrees. As explained below, because the state court's procedural holding relied on, and was intertwined with, the merits of Besser's federal constitutional Apprendi claim, the New York Court of Appeals' procedural holding cannot be deemed an "independent" state ground barring this Court's merits review.

At his sentencing hearing, Besser failed to object on Apprendi grounds to the enhancement of his sentence under New York's persistent felony offender statute, Penal Law § 70.10. This is not surprising, of course, since Besser's sentencing in September through December 1995 occurred years before the Supreme Court's June 2000 Apprendi decision. The New York Court of Appeals held that Besser's Apprendi claim was unpreserved and thus procedurally barred: "as Besser failed to raise his challenge to the constitutionality of the discretionary persistent felony offender sentencing statute before the sentencing court, the issue is not properly before us for review (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 [(2001)])." People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 (2001). Given the New York Court of Appeals' summary handling of the default issue and single citation to People v. Rosen, and the fact that this case and Rosen have virtually identical procedural postures, further analysis of the Rosen decision is appropriate.

In Rosen, as here, the defendant failed to object on Apprendi grounds at sentencing, and first raised the Apprendi issue to the New York Court of Appeals. See People v. Rosen, 96 N.Y.2d 329. 333.728 N.Y.S.2d 407.409. cert. denied, 534 U.S. 899, 122 S.Ct. 224(2001). Rosen argued that the Apprendi claim was "reviewable on appeal even absent a timely objection before the sentencing court" because the Apprendi violation "constituted an error affecting 'the organization of the court or the mode of proceedings prescribed by law.'" Id. (quoting People v. Patterson, 39 N.Y.2d 288, 294-296, 383 N.Y.S.2d 573, 576-78 (1976),aff'd, 432 U.S. 197, 97 S.Ct. 2319(1977)). Rosen thus referenced New York's well-settled exception to the contemporaneous objection rule "that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below." People v. Patterson, 39 N.Y.2d at 295, 383 N.Y.S.2d at 577 ("A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings prescribed by law.")⁷

7 Accord, e.g., Hawkins v. LeFevre, 758 F.2d 866, 872-73 (2d Cir. 1985) (under New York law, "the use of a criminal defendant's exercise of his privilege against self-incrimination against him at trial is considered a constitutional violation so fundamental that no objection is necessary to preserve such a claim as an issue of law for appellate review"); People v. Voliton, 83 N.Y.2d 192, 195, 608 N.Y.S.2d 945, 947 (1994) (New York provides a "narrow" exception to the contemporaneous objection rule, "limited to errors going to the very organization of the court or at such basic variance with the mode of procedure mandated by law that they impair the essential validity of the criminal proceedings."); People v. Thomas, 50 N.Y.2d 467, 471-72, 429 N.Y.S.2d 584, 586-87 (1980) ("no objection is necessary to preserve a point of law for appellate review when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute"); see generally 34 N.Y. Jur.2d Criminal Law § 3137 (2003).
Thus, relevant to Besser's Apprendi claim, New York courts have found fundamental, nonwaivable errors where the trial court violated the defendant's right to a jury trial, People v. Patterson, 39 N.Y.2d at 294-96, 383 N.Y.S.2d at 576-78, did not require the prosecution to prove beyond a reasonable doubt every element of the crime charged, id., or violated the "'essential nature' of the right to be sentenced as provided by law," People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 255 (1982).

The New York Court of Appeals in Rosen, however, disposed of this procedural issue not on purely state procedural grounds, but rather by finding the underlying Apprendi claim meritless and then holding that a meritless claim could not qualify as a "mode of proceeding" error. People v. Rosen, 96 N.Y.2d at 334-35, 728 N.Y.S.2d at 409-10. Specifically, after describing Rosen's procedural argument, the New York Court of Appeals immediately turned to the merits, analyzing in detail theApprendi decision and the framework of the New York persistent felony offender statute. Id., quoted on page 62 below. Ultimately, the New York Court of Appeals in Rosen held that sentencing under the persistent felony offender statute did not constitute an Apprendi violation:

Defendant had no constitutional right to a jury trial to establish the facts of his prior felony convictions, (see, Apprendi, supra, 530 US, at 488, 120 S.Ct. 2348). Based on the foregoing, it is clear that there was no mode of proceedings error in this matter and, thus, any alleged error required preservation.

Id. at 335, 728 N.Y.S.2d at 410. In other words, because the New York Court of Appeals found Rosen's Apprendi claim to be meritless, the sentencing court did not commit a "mode of proceedings" error, and Rosen's failure to object at sentencing on Apprendi grounds could not be excused.

The United States Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted).⁸ "But this doctrine does not apply unless the state court actually relied on the procedural default as an independent basis for its decision." Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir. 2002). The Supreme Court instructs that:

8 Accord, e.g., Schlup v. Delo, 513 U.S. 298.314-16.115 So. Ct. 851. 860-61 (1995): Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991): Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997): Garcia v. Lewis, 188 F.3d 71.76-77 (2d Cir. 1999): Reves v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997);Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *22 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Besser I, 2003 WL 22093477 at *20 ( cases cited therein); Ouinones v. Miller, 02 Civ. 10752, 2003 WL 21276429 at *20 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-11 n. 8 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ( cases cited therein).

[F]ederal courts on habeas corpus review of state prisoner claims . . . will presume that there is no independent and adequate state ground for a state court decision when the decision "fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion."

Coleman v. Thompson, 501 U.S. at 734-35, 111 S.Ct. at 2557 (quotingMichigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77 (1983))⁹; see also, e.g., Harris v. Reed, 489 U.S. at 266, 109 S.Ct. at 1045: Farmer v. Litscher, 303 F.3d at 846-47 (where state court denied leave to file late appeal because it considered the untimely petition and found no prejudice from ineffective counsel because it would not have granted relief in any event, held not to be independent state ground. "[I]t is apparent that the state court's rejection of [the] petition is interwoven with its merits determination of his [federal] claims. . . . As a result, the state supreme court's rejection of [petitioner's] petition as untimely is not an independent and adequate state ground precluding federal review of his claims.").

9 The precise definition of the term "independent state ground" is difficult to ascertain. As the Supreme Court explained:

It is not always easy for a federal court to apply the independent and adequate state ground doctrine. State court opinions will, at times, discuss federal questions at length and mention a state law basis for decision only briefly. In such cases, it is often difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference. In other cases, state opinions purporting to apply state constitutional law will derive principles by reference to federal constitutional decisions from this Court. Again, it is unclear from such opinions whether the state law decision is independent of federal law.

Coleman v. Thompson, 501 U.S. at 732, 111 S.Ct. at 2555.

In the abstract, New York's contemporaneous objection rule is plainly independent of federal law, as is the "mode of proceeding" exception to that rule. The application of these rules in Rosen, however, is an entirely different matter. In determining whether the mode of proceeding exception should apply, Rosen relied on a full merits determination of the Apprendi claim. The Supreme Court has several times dealt with similar situations in which a petitioner defaulted on state procedural grounds, and the petitioner argued that the state court default was not independent of federal law because the state court explicitly or implicitly reached the merits of federal law in determining whether some state law exception (such as "plain error" or "fundamental error") should excuse the procedural default. The Court will briefly analyze these Supreme Court cases. Ake v. Oklahoma, 470 U.S. 68. 105 S.Ct. 1087 (1985), a direct review case, involved an Oklahoma state court ruling that petitioner procedurally waived his request for a psychiatrist by failing to raise the request at the proper time. Id. at 74, 105 S.Ct. at 1092. The Supreme Court noted, however, that" [t]he Oklahoma waiver rule does not apply to fundamental trial error," and that "[u]nder Oklahoma law,. . . federal constitutional errors are 'fundamental.'" Id. at 74-75, 105 S.Ct. at 1092.

Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question.

As we have indicated in the past, when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded. In such a case, the federal-law holding is integral to the state court's disposition of the matter, and our ruling on the issue is in no respect advisory. In this case, the additional holding of the state court — that the constitutional challenge presented here was waived — depends on the court's federal-law ruling and consequently does not present an independent state ground for the decision rendered.

Id. at 75, 105 S.Ct. at 1092 (citations omitted). In other words, because Oklahoma excuses defaults where the underlying error is "fundamental," and because all federal constitutional errors are considered "fundamental" under Oklahoma state law, the Oklahoma court implicitly ruled on the merits of the underlying federal constitutional claims when refusing to grant petitioner a waiver from the state default rule.

Were Ake to govern here, the New York Court of Appeals' Apprendi ruling (in Besser and Rosen) could not be considered an independent state ground, as the New York Court of Appeals did not merely implicitly rule on federal law but explicitly reached the merits in Rosen (and incorporated that decision by reference in Besser). In Coleman v. Thompson, 501 U.S. at 741, 111 S.Ct. at 2560, however, the Supreme Court questioned whether Ake applies in the habeas context.

In Coleman, the State had moved to dismiss petitioner's direct appeal to the Virginia Supreme Court as not timely filed, and the Virginia Supreme Court had granted the dismissal without substantive explanation.Coleman v. Thompson, 501 U.S. at 740, 111 S.Ct. at 2552-53. Petitioner argued on habeas review that the state default was "not independent of federal law," because the Virginia Supreme Court will excuse late-filing defaults "'if it is found that to deny the extension would abridge a constitutional right.'" Id. at 740-41, 111 So. Ct. at 2560 (citation omitted). Thus, petitioner asserted, the state court implicitly "conduct[ed] at least a cursory review of a petitioner's constitutional claims on the merits before dismissing [his] appeal." Id. at 741, 111 S.Ct. at 2560.

The United States Supreme Court rejected petitioner's reliance on Ake, as "Ake was a direct review case. We have never applied its rule regarding independent state grounds in federal habeas." Id. at 741, 111 S.Ct. at 2560.¹⁰ The Supreme Court further held that petitioner's argument would fail even if Ake governed, because it was not the state court's practice to "examin[e] the merits of all underlying constitutional claims before denying a petition for appeal or writ of error as time barred."Id. at 741, 111 S.Ct. at 2560. Rather, the state court "will only grant an extension of time if the denial itself would abridge a constitutional right." Id. at 741-42, 111 S.Ct. at 2560. In other words, in reviewing whether a default should be excused, the Virginia Supreme Court determines whether the appeal process itself violated the constitution (for example, because of ineffective appellate counsel), not whether the underlying claims being appealed had merit. Id. Absent such review of the underlying merits, the state default was an independent state ground barring habeas review.

10 One commentator has described the Supreme Court's differing treatment of the "independent" ground doctrine on direct and habeas review as follows:

The Court's treatment of the "independence" branch of the doctrine in Michigan v. Long, 463 U.S. 1032 (1983), suggests that the Court is willing to countenance differences that narrow the availability of habeas review. Under Long, when a state court decision rests on both state and federal grounds and the state-law ground seems interwoven with the federal ground, the Supreme Court will presume that the state-law ground is dependent on the federal ground, unless the state court decision provides a plain statement to the contrary. See id. at 1040-41. The effect, on direct review, is to permit Supreme Court jurisdiction in cases where state courts have "overenforced" federal rights. On habeas review, however, the Court has diluted the strength of the Long presumption, so as to narrow the range of cases in which federal habeas review is permissible. See Coleman, 501 U.S. at 735-40; Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991). Commentat ors have noted that this disparity suggests a result-oriented bent to the Long doctrine: The Court applies it to expand to the scope of direct review concerning state court judgments that may have "overenforced" federal rights, but applies it restrictively on habeas review — a context which is concerned, by definition, with the underenforcement of the petitioner's federal rights.

Catherine T. Struve, Direct and Collateral Federal Court Review of the Adequacy of State Procedural Rules, 103 Colum. L. Rev. 243 n. 291 (Mar. 2003).

Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691 (1990), involved an Ohio Supreme Court ruling that although the trial judge failed to charge the jury that scienter was an element of petitioner's crime, (1) petitioner waived the issue by failing to object at trial, and (2) the omission did not "amount to plain error." Id. at 107-08, 110 S.Ct. at 1695.¹¹ Without reciting the Ohio Supreme Court's plain error analysis, the United States Supreme Court concluded: "The question before us now, therefore, is whether we are precluded from reaching Osborne's due process challenge because counsel's failure to comply with the procedural rule constitutes an independent state-law ground adequate to support the result below. We have no difficulty agreeing with the State that Osborne's counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne's due process contention on that point." Osborne v. Ohio, 495 U.S. at 123, 110 S.Ct. at 1703. The Second Circuit interpreted this holding as follows: "The implication of Osborne, therefore, appears to be that even if the state court has addressed the questions of (a) whether there was error, and (b) whether the error was prejudicial, if these questions were answered in the context of plain-error analysis, the decision was not sufficiently a ruling on the merits to authorize the federal court to reach the merits." Roy v. Coxon, 907 F.2d 385, 390 (2d Cir. 1990)¹² Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114 (1992), involved a Florida Supreme Court ruling that "[n]one of the complained-of jury instructions were objected to at trial, and, thus, they are not preserved for appeal. . . . In any event, [petitioner's] claims here have no merit." Id. at 534, 112 S.Ct. at 2120. The dissent to the United States Supreme Court's opinion argued, among other things, that the state court had the power to review for "fundamental error" despite petitioner's failure to preserve the error. Id. at 548-49, 112 S.Ct. at 2127-28 (Stevens, J., dissenting). In the dissent's view, the state court had implicitly reviewed the merits as part of its fundamental error analysis, and had found that the claims had "no merit":" [p]resumably because the state court reviews for fundamental error, but did not find such error here, the State did not oppose the petition for certiorari by arguing procedural default." Id. at 548-49, 112 S.Ct. at 2127 (Stevens, J., dissenting). In the dissent's view, by so reviewing the merits in support of the procedural default, the State waived any objection to the Supreme Court's review of the merits. Id. at 549, 112 S.Ct. at 2127-28 (Stevens, J., dissenting).

11 Although not recited in the Unites States Supreme Court's opinion, the Ohio Supreme Court held that a plain error analysis should include a review of the case record to determine whether "a man[ifest] miscarriage of justice will result if the conviction is permitted to stand." Ohio v. Young, 37 Ohio St.3d 249, 254, 525 N.E.2d 1363, 1369-70 (1988). Accordingly, the Ohio Supreme Court reviewed the relevant trial evidence in detail and concluded that petitioner "would still have been convicted if a proper instruction" on scienter had been given, and that petitioner's conviction must stand. Id. at 254, 525 N.E.2d at 1370.

12 Oddly, the Second Circuit panel in Roy seemed to interpretOsborne as ruling on adequacy rather than independence. See Roy v. Coxon, 907 F.2d at 390 (stating that Osborne holding did not end the inquiry, as the court still needed to decide independence issue as opposed to adequacy). In fact, the Second Circuit went on to conclude that the Vermont Supreme Court's ruling "was not independent of federal law," since it's plain-error analysis quoted a U.S. Supreme Court due process decision. "In the circumstances, we do not view the Vermont Supreme Court's plain error analysis as one that was independent of federal constitutional law. We conclude, therefore, that the district court should have reached the merits of Roy's claim." Roy v. Coxon, 907 F.2d at 391.

The majority rejected this reasoning:

[The dissent] suggests that, in holding [petitioner's] claim waived, the Supreme Court of Florida implied that the claim did not implicate "fundamental error," and that this in turn implied a rejection of [petitioner's] claim of "error," presumably because all federal constitutional error (or at least the kind claimed by [petitioner]) would automatically be "fundamental." To say that this is "the most reasonable explanation," Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476 (1983), of the court's summary statement that [petitioner's] claim was "not preserved for appeal," is an Olympic stretch. In any event, we know of no Florida authority supporting [the dissent's] suggestion that all federal constitutional error (or even the kind claimed by [petitioner]) would be automatically "fundamental." Indeed, where, as here, valid aggravating factors would remain, instructional error involving another factor is not "fundamental."

Sochor v. Florida, 504 U.S. at 534 n.*, 112 S.Ct. at 2120 n.* (citations omitted).

Finally, in Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578 (2002), petitioner filed in state appellate court a post-conviction claim (similar to a petition for a writ of error coram nobis) that his trial counsel rendered ineffective assistance at sentencing. Id. at 857, 122 S.Ct. at 2580. The state court denied the claim, finding it waived under a state procedural rule (Ariz. Rule of Crim. Proc. 32.2(a)(3)) because petitioner had failed to raise the claim in two earlier post-conviction petitions. Id. Further, the state court rejected petitioner's contention that his procedural default should be excused because his appellate counsel and other counsel suffered from a conflict of interest. Id. at 858, 122 S.Ct. at 2580. The state procedural rule at issue provided that if a claim is of' "sufficient constitutional magnitude,'" waiver of the claim must be "'knowin[g], voluntar[y] and intelligen[t],'" and "not merely omitted from previous petitions." Id. at 858, 122 S.Ct. at 2580. The United States Supreme Court certified the following question to the Arizona Supreme Court: "'did the question whether an asserted claim was of 'sufficient constitutional magnitude' to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), depend upon the merits of the particular claim, or merely upon the particular right alleged to have been violated.'" Id. at 859, 122 S.Ct. at 2581 (citations omitted). The Arizona Supreme Court responded that "'the question . . . depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated.'" Id. at 859, 122 S.Ct. at 2581 (citation omitted).

Based on this response, the United States Supreme Court held:

The Arizona Supreme Court's reply makes clear that [Arizona] Rule 32.2(a)(3) does not require courts to evaluate the merits of a particular claim, but only to categorize the claim. According to the Arizona Supreme Court, courts must evaluate whether "at its core, [a] claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver." Courts need not decide the merits of the claim, i.e., whether the right was actually violated. They need only identify what type of claim it is, and there is no indication that this identification is based on an interpretation of what federal law requires.

Id. at 859-60, 122 S.Ct. at2581 (citation omitted). The Supreme Court thus held that even assuming (without deciding) that the more liberalAke standard governed on habeas review (though Coleman suggested Ake was limited to direct review), the state procedural bar was "independent of federal law" because the state bar did not "depend upon a federal constitutional ruling on the merits." Id. at 860, 122 S.Ct. at 2581.¹³ Importantly, the Supreme Court further held that even if the state procedural rule did not "require" a ruling on the federal merits, "if the state court's decision rested primarily on a ruling on the merits nevertheless, its decision would not be independent of federal law." Id. The Supreme Court ruled, however, that the state court had not, in fact, reached the merits. Id.

13 In Gutierrez v. Moriarty, 922 F.2d 1464 (1 Oth Cir. 1991), the Tenth Circuit described various ways in which a plain error ruling might avoid the merits:

[U]nlike Oklahoma, New Mexico does not equate fundamental error with federal constitutional error. In New Mexico, unlike Oklahoma, a state court's unambiguous statement that a federal constitutional claim is waived does not necessarily mean that the court considered the merits of the claim. Rather, the court could have considered the alleged denial on the merits and found no resulting fundamental error, as defined by state law. Or, the court could instead have merely assumed the existence of a violation of a fundamental right and found no resulting fundamental error. Or, the court could have done neither of the above, but instead found no fundamental error due to overwhelming evidence of guilt, and then exercised its discretion not to review the defaulted fundamental-right claim. In sum, a state court in New Mexico may invoke the procedural bar without the necessity of ruling on the federal constitutional claim. As a general rule, therefore, application of New Mexico's procedural bar rule const itutes an independent state ground because it does not require a ruling on the merits of the federal claim.

Id. at 1469 (citations omitted).

Whether or not Ake applies in the habeas context remains an open question in light of Coleman and Stewart.¹⁴ Nevertheless, some general rules can be gleaned from the above cases regarding the parameters of the "independent state ground" doctrine on habeas review. First, where a state court merely categorizes a claim as falling under a particular state procedural rule or exception, without considering the merits of the federal claim, the state decision remains "independent." See Stewart v. Smith, 536 U.S. at 859-60, 122 So. Ct. at 2581; Coleman v. Thompson, 501 U.S. at 741-42, 111 So. Ct. at 2560. Thus, for example, had the New York Court of Appeals in Rosen and Besser merely held that Apprendi errors categorically do not qualify for "mode of proceeding" treatment under state law, that ruling would have implicated only state procedural rules, and would not have "primarily" depended on a federal constitutional merits ruling. The New York Court of Appeals in Rosen, however, did not take that route, but instead fully reached the merits of the Apprendi claim.¹⁵

14 The circuits are dividedpost-Coleman. Compare Smith v. Stewart. 241 F.3d 1191.1196 T9th Cir. 2001) (applying Ake in habeas context; collecting Ninth Circuit decisions), rev'd on other grounds. Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578 (2002), with O'Dell v. Netfaerland, 95 F.3d 1214, 1244 (4th Cir. 1996) ("We agree that the rule of Ake concerning the state procedural rules and underlying federal claims does not apply in the habeas context, and, regardless" hold that the state rule was independent even if Ake applied), aff'd, 521 U.S. 151, 117 S.Ct. 1969 (1997). The Second Circuit has not addressed the issue.

15 In its federal habeas brief in the Rosen case, the State attempted to shoehorn the Rosen decision into the Stewart mold:

Here, the New York Court of Appeals did not consider the merits of petitioner's claim before concluding that preservation was required. Rather, the court merely identified petitioner's arguments as a recidivism challenge, and thus held that it was outside the scope of Apprendi. See People v. Rosen, 96 N.Y.2d at 333-36.728 N.Y.S.2d 407. As a result, no determination on the merits was necessary.

In other words, here, as in Stewart, the state court reviewed petitioner's claim not to examine the merits of his allegation, but rather to identify whether the claim involves an issue for which preservation is required. A state may legitimately define a subset of constitutional claims as implicating the "mode of proceedings," and thus undefaultable, and the definition of that subset is a matter of state law.

(Rosen v. Walsh, Case No. 02 Civ. 7782, Dkt. No. 11: State Br. at 14 (emphasis added).)
The State's argument misconstrues Stewart. Determining whether or not a recidivism challenge (or what the Rosen Court misconstrued as merely a recidivism challenge) is "outside the scope of Apprendi" is, of course, a federal question, not a state one, as the true question is whether the sentence enhancement constituted a federal due process violation underApprendi. The Rosen Court reached the full merits of this federal question by determining that the sentence enhancement was outsideApprendi's scope — that no Apprendi violation had occurred. If the New York Court of Appeals had held that sentencing challenges do not implicate its "mode of proceedings" exception, that would fall withinStewart. But that is not what the New York Court of Appeals held inRosen. Rather, the Rosen Court held that sentencing challenges fall within the "mode of proceedings" exception but that since the persistent felony statute did not violate Apprendi — a federal constitutional merits conclusion — it did not come within the "mode of proceedings" exception. The Rosen decision cannot be shoehorned into theStewart box.

Second, where the state court has not actually reached the underlying merits, the independence of state procedural rules is not automatically undermined by the mere existence of provisions requiring or empowering the state court to excuse procedural defaults if the underlying error is "plain" or "fundamental." See Sochor v. Florida, 504 U.S. at 534 n.*, 112 S.Ct. at 2120 n.*; Scott v. Mitchell, 209 F.3d 854, 868 (6th Cir.) ("The Supreme Court, then, does not find the mere reservation of discretion to review for plain error in exceptional circumstances sufficient to constitute an application of federal law." cert. denied, 531 U.S. 1021, 121 S.Ct. 588 (2000). Here, again, the New York Court of Appeals inRosen (and thus by incorporation in Besser) reached the full merits of the Apprendi claim, and did not merely reach the merits by implication.

Third, it also appears that the independence of the state procedural ground is not undermined where the state court has delved into the merits to a limited degree, albeit short of a fullblown consideration of the merits. See Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691. Thus, inOsborne, although the Supreme Court did not discuss the issue in depth, the state court's procedural ruling remained independent despite the state court's determination that the underlying non-prejudicial error did not result in a miscarriage of justice. Id. at 123, 110 S.Ct. at 1703.

It is not entirely clear, however, whether the Supreme Court in a habeas case would find a state procedural ruling independent if it fully reached the merits, or where the line should be drawn between a full and partial examination of the merits. The Seventh Circuit, in dictum, proposed a bright-line rule emphasizing deference to state procedure. In Brooks v. Walls, 279 F.3d 518 (7th Cir. 2002), cert. denied, 123 S.Ct. 1899 (2003), Judge Easterbrook opined that when a state court finds a procedural default under a state rule (which rule is not itself intertwined with the federal merits), and the state court examines the merits to determine whether there has been an underlying plain error that would excuse the default, the situation can be analogized to a decision in the alternative on both state procedural grounds and the merits, where the alternative state procedural default bars habeas review. Id. at 521-24. Judge Easterbrook wrote:

A state court may say something like: "this argument has been forfeited because not raised in the proper way (such as by an objection to the jury instructions); and the defendant has not established plain error because there was no error at all." When it does this, it has not abandoned the procedural ground but has instead added a substantive failing to the procedural one. The independent-and-adequate-state-ground doctrine is one of long lineage, founded not only in respect for state tribunals but also in recognition that litigants should be given incentives to present their contentions as soon as possible, when errors can be avoided, rather than to save them up for presentation after the error has been committed. . . . A state does not abandon the benefits of this doctrine by allowing plain-error review — or by accepting untimely collateral attacks when the standards of plain error have been met.

Id. at 523-24. Such a rule would erase any need to distinguish between partial and full consideration of the merits where (1) a state procedural rule is involved, and (2) the merits are only considered in connection with exceptions to the procedural rule. The Brooks rule would allow state courts to consider the merits in written opinions, rather than being forced to implicitly consider the merits to avoid federal court review.See also Roy v. Coxon, 907 F.2d at 389 ("A case can be made for the proposition that any ruling that there has been no 'plain error' is a decision on the merits of the claim, for typically the plain-error doctrine is used to consider a claim as to which there has been a procedural oversight only when the claim has merit.")¹⁶

16 For example, had the Rosen Court simply held that the Apprendi claim was barred under New York's contemporaneous objection rule, without examining the merits, there would be no grounds to question the independence of the procedural decision. See, e.g., Scott v. Mitchell, 209 F.3d at 868 ("The Supreme Court, then, does not find the mere reservation of discretion to review for plain error in exceptional circumstances sufficient to constitute an application of federal law."). By deciding the merits of the Apprendi claim as the predicate of the state procedural default, the Rosen Court opened itself to federal review.

The Brooks rule, however, appears to conflict with the Supreme Court's subsequent decision in Stewart, which repeatedly looked to whether the state court examined the merits. The Stewart Court could have, likeBrooks, resolved the independence issue by simply holding that once it was determined that a state procedural rule applied, it was irrelevant whether or not the state court looked to federal law in analyzing an exception to the state procedural rule. Instead, the Supreme Court inStewart asked the Arizona Supreme Court whether resolution of the procedural issue depended on the merits. Stewart v. Smith, 536 U.S. at 859, 122 S.Ct. at 2580-81. The Supreme Court in Stewart held that even though the state procedural rule did not "require" a ruling on the federal merits, "if the state court's decision rested primarily on a ruling on the merits nevertheless, its decision would not be independent of federal law." 536 U.S. at 860, 122 S.Ct. at 2581.¹⁷ This seems to make clear that where, as in Rosen (and by incorporation, Besser), the state court explicitly reached the full federal merits in deciding whether to apply a state procedural rule, the state ruling cannot be deemed "independent" on habeas review.¹⁸

17 Although this statement followed the Court's holding that the state procedural ruling was independent "[e]ven assuming" Ake applied in the habeas context, the Court's language ("rested primarily on a ruling on the merits") plainly referenced the decision in Coleman, a habeas decision, rather than Ake. Compare Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559 (if "it fairly appears that [the state decision] rested primarily on federal law or was interwoven with federal law," there is a presumption that it did not rest on an independent state law ground.);with Ake v. Oklahoma 470 U.S. at 75, 105 S.Ct. at 1092 ("the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed"). Thus, the Stewart Court's statement was not merely dicta.

18 In Farmer v. Litscher, 303 F.3d 840 (7th Cir. 2002), petitioner sought review in the state supreme court, but his counsel failed to file a timely petition, and the court rejected it as untimely. Id. at 846. The state court, in explaining why the untimely filing was not excused, stated that "'[a]fter consideration of . . . the untimely petition for review itself, this court concludes that although appellate counsel's failure to timely file the petition for review constituted deficient performance, [petitioner] suffered no prejudice because this court would not have granted the petition for review in any event.'" Id. Given this underlying ruling on the merits, the Seventh Circuit (despite Judge Easterbrook's prior Brooks decision) held that "it is apparent that the state court's rejection of [petitioner's] petition is interwoven with its merits determination of his claims," and the state court's procedural ruling was "not an independent and adequate state ground precluding federal review of his claims." Id. at 847. See also Williams v. Spitzer, 246 F. Supp.2d 368, 378-79 (S.D.N.Y. 2003) ("[T]he state procedural rule and the federal issue are not separate and distinct from each other; they are joined at the hip; they occupy the same conceptual territory. If petitioner succeeds on his constitutional due process claim, the state [procedural] rule cannot operate to preserve the result reached by the state courts; on the contrary, such a resolution of the federal issue would necessarily preclude the rule's unconstitutional application to petitioner.").

In short, were this Court to apply the Ake standard in this habeas context, the New York Court of Appeals' preclusion rulings in Rosen andBesser could not be considered an independent state ground. Further, even if Ake does not govern here, the New York Court of Appeals' full consideration of the federal merits of the Apprendi issue in Rosen (and thus by incorporation in Besser) allows for federal habeas review of theApprendi issue by this Court.¹⁹

19 Because the state procedural bar is clearly not an "independent" state ground barring this Court's review, it is unnecessary to determine whether the state bar is an "adequate" state ground.
The defendant in People v. Rosen filed a habeas corpus petition in this District, which Judge Hellerstein granted on Apprendi grounds. (Rosen v. Walsh, 02 Civ. 7782, Dkt. Nos. 15-16: 7/21/03 Order 7/24/03 Judgment.) Although no written opinion issued, Judge Hellerstein explained his judgment at a hearing held July 17, 2003. (Rosen v. Walsh, 02 Civ. 7782: 7/17/03 Hearing Tr.) Rosen had argued in his habeas briefs and at the hearing that the state's procedural bar ruling was either not independent (because interwoven with federal law) (Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 12: Rosen Reply Br. at 2-9; Rosen v. Walsh, 02 Civ. 7782:7/17/03 Hearing Tr. at 11-14, 19-20), or not adequate (because the procedural bar was unevenly applied) (Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 12: Rosen Reply Br. at 9-13; Rosen v. Walsh, 02 Civ. 7782: 7/17/03 Hearing Tr. at 21-26). After holding that the New York Court of Appeals' decision on the merits in Rosen was an unreasonable application ofApprendi. Judge Hellerstein held that the Rosen Court's procedural bar ruling was wrong as well. (Rosen v. Walsh, 02 Civ. 7782: 7/17/03 Hearing Tr. at 44-49.) Judge Hellerstein's disposition of the procedural issue, however, left unclear whether the Rosen procedural bar ruling lacked independence or adequacy or both:

New York has a mode of proceeding law which says that in certain instances, which I would liken to a jurisdictional argument in this court, or in any court, where there are failed effects [sic], it doesn't make a difference whether you've perfected that objection or not. At all times the Court must entertain it. And thus, the New York Court of Appeals entertained the objection based on Apprendi, even though it was first raised in the Rosen case in the court of appeals.

It went on to hold because of this unreasonable application of Apprendi. that it didn't have to apply this rule or that a rule had no merit. But in both these respects, it was wrong because of this unreasonable application of Apprendi. Accordingly, I grant the petition in the Rosen case.

(Rosen v. Walsh, 02 Civ. 7782, 7/17/03 Hearing Tr. at 48-49.) At the same hearing, Judge Hellerstein granted habeas relief in a similar case involving the same Apprendi issues and similar procedural issues. (Kearse v. Herbert, 02 Civ. 8526: 7/17/03 Hearing Tr. at 49; Kearse v. Herbert, 02 Civ. 8526, Dkt. No. 12: 7/24/03 Judgment.)
Although in Brown v. Greiner, 258 F. Supp.2d 68 (E.D.N.Y. 2003), Judge Gleeson held that New York's persistent felony offender sentencing statute violated Apprendi, the state court decision in Brown denied theApprendi claim on the merits, so Judge Gleeson did not address the procedural default question that arises in Rosen and Besser. See Brown v. Greiner, 258 F. Supp.2d at 90.

Finally, the State asserts that were this Court to find that the state court's procedural bar ruling was not an independent and adequate state ground, Besser would get the benefit of de novo review of his Apprendi claim by this Court, rather than the deferential AEDPA review standard. (Dkt. No. 10: State Br. at 45-46.) The State, of course, was not suggesting that the de novo standard should apply, and the Court agrees that it should not. Although the New York Court of Appeals barred Besser's Apprendi claim on procedural grounds. People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 (2001), the predicate for that procedural ruling was a clear adjudication on the merits, see id. (citing People v. Rosen, 96 N.Y.2d 329, 334-35, 728 N.Y.S.2d 407, 409-10 (2001)). The Court therefore will apply the deferential AEDPA review standard.²⁰ III. THE SUPREME COURT'S DECISION IN RING V. ARIZONA APPLIES RETROACTIVELY TO THIS CASE ON HABEAS REVIEW

20 If the deferential AEDPA review standard did not apply andde novo review applied, the result would be the same.

Because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), was decided in 2000, long before Besser's conviction became final, it cannot reasonably be disputed that Apprendi governs this habeas review.See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716 (1987).

After summarily asserting that the persistent felony offender statute does not violate Apprendi (Dkt. No. 10: State Br. at 46-47), the State's habeas brief focuses on whether the Supreme Court's pre-Apprendi decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990), governed the New York Court of Appeals' denial of Besser's Apprendi claim (see Dkt. No. 10: State Br. at 47-51). The State argues that Apprendi did not overrule Walton, which held that a court could properly make factual findings resulting in an enhanced sentence as long as the jury's findings supported "eligibility" for the higher sentence. (State Br. at 50.) Further, the State argues that despite Apprendi, the Supreme Court did not expressly overrule Walton until June 2002, when it issued Ring v. Arizona, 536 U.S. 584, 603, 122 So. Ct. 2428, 2440 (2002). (State Br. at 51.) Accordingly, the State asserts that because Ring was issued after Besser's conviction became final, Ring cannot be applied retroactively to Besser's habeas proceeding, see Teague v. Lane, 489 U.S. 288, 295, 109 So.Ct. 1060, 1067 (1989), and the New York Court of Appeals' decision inBesser must be deemed an objectively reasonable application of Walton. (State Br. at 49-51.)²¹

21 The State noted that Judge Gleeson's decision in Brown v. Greiner, 258 F. Supp.2d 68 (E.D.N.Y. 2003), "does not appear to have addressed the retroactivity issues advanced here by" the State. (State Br. at 51.)

The Supreme Court recently held that on habeas review, courts must make two related, but "distinct," determinations. Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 2151 (2002). First, where, as here, the state has raised the retroactivity issue, the Court must first determine underTeague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), whether a particular Supreme Court decision should be applied retroactively. Horn v. Banks, 536 U.S. at 272, 122 S.Ct. at 2151 ("[I]n addition to performing any analysis required by AEDP A, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state.").²² Second, the Court must determine whether the petitioner has satisfied the AEDPA standard of review, Horn v. Banks, 536 U.S. at 272, 122 S.Ct. at 2151, an analysis that ordinarily requires the court to determine what Supreme Court holdings constitute "clearly established Federal law," 28 U.S.C. § 2254(d)(1). See, e.g., Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.) ("In Teague . . ., the Supreme Court barred the application of new rules of law on federal habeas corpus review. Teague remains applicable after the passage of the AEDPA.") (citing Horn),cert. denied, 124 So. Ct. 28 (2003).

22 Accord, e.g., Lambrix v. Singletary, 520 U.S. 518, 524, 117 S.Ct. 1517, 1523 (1997) (holding that Teague is threshold issue to be considered before the merits, but not before such other procedural issues as whether the state decision was based on an independent and adequate state ground, as Teague requires a detailed analysis of constitutional law); Goeke v. Branch, 514 U.S. 115, 117, 115 S.Ct. 1275, 1276 (1995) ("The application of Teague is a threshold question in a federal habeas case. . . . [A] court must apply it if it was raised by the State.");Caspari v. Bohlen, 510U.S. 383, 389, 114 S.Ct. 948, 953 (1994) ("A threshold question in every habeas case . . . is whether the court is obligated to apply the Teague rule to the defendant's claim. . . . [A] federal court may, but need not, decline to apply Teague if the State does not argue it. But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must applyTeague before considering the merits of the claim.") (citations omitted); cf. Williams v. Taylor, 529 U.S. 362, 379-80, 120 S.Ct. 1495, 1506 (2000) ("Because there is no reason to believe that Congress intended to require federal courts to ask both whether a rule sought on habeas is 'new' under Teague — which remains the law — and also whether it is 'clearly established' under AEDPA, it seems safe to assume that Congress had congruent concepts in mind. It is perfectly clear that AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final.") (fns. omitted). The difference between Williams and Horn is thatHorn states that there is a difference between the Teague and AEDPA analyses, while Williams considers the two analyses to be similar; under either view, it is clear that a habeas court must address the Teague retroactivity question.

This Court must therefore conduct a Teague retroactivity analysis, followed by a determination, under the AEDPA, of what constituted "clearly established Federal law" on the Apprendi issue at the time of the New York Court of Appeals' Besser decision.

A. The Teague Doctrine of Non-Retroactivity on Habeas Review

In Teague v. Lane, the Supreme Court held that in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075 (1989)²³;accord, e.g., Horny. Banks, 536 U.S. 266, 271, 122 S.Ct. 2147, 2150 (2002); Wright v. West, 505 U.S. 277, 291, 112 S.Ct. 2482, 2489 (1992) ("Under Teague, a habeas petitioner generally cannot benefit from a new rule of criminal procedure announced after his conviction has become final on direct appeal."). The Supreme Court in Teague described the interests of finality and comity that inform this doctrine:

23 "Although there was no majority opinion in Teague v. Lane, the [Supreme] Court has since treated Justice O'Connor's plurality opinion as setting forth the holding of the Court." Coleman v. United States, 329 F.3d 77, 82 n. 3 (2d Cir. 2003) (citing Tyjer v. Cain, 533 U.S. 656, 665, 121 S.Ct. 2478, 2483-84 (2001)).

Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. . . . The 'costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application.'

Teague v. Lane, 489 U.S. at 309-10, 109 S.Ct. at 1074-75.

"To apply Teague. a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final." Lambrix v. Singletary, 520 U.S. 518, 527, 117 So. Ct. 1517, 1524-25 (1997): accord, e.g., O'Dell v. Netherland, 521 U.S. 151, 156-57, 117 S.Ct. 1969, 1973 (1997); Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953-954 (1994). "Final, in the context of retroactivity analysis, means that a judgment of conviction has been entered, the time for direct appeals from that judgment has expired, and the time to petition the United States Supreme Court for certiorari has expired." Diaz v. Scully, 821 F.2d 153, 156 (2d Cir.), cert. denied, 484 U.S. 933, 108 S.Ct. 306 (1987).²⁴

24 Accord, e.g., Caspari v. Bohlen, 510 U.S. at 390-91, 114 S.Ct. at 953-54; Teague v. Lane, 489 U.S. at 295, 109 S.Ct. at 1067 (a conviction is final once "'the judgment of conviction [has been] rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed'"): Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6 (1987) ("By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied."); United States v. Johnson, 457 U.S. 537, 543 n. 8, 102 S.Ct. 2579, 2583 n. 8 (1982) ("'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed [or a petition for certiorari finally denied, all] before'" the relevant new decision was issued.) (bracketed material in original); Sosa v. United States, 02 Civ. 1850, 95 CR. 941, 2003 WL 1797885 at *4 (S.D.N.Y. Apr. 3, 2003) (Petitioner's "case did not become 'final' until February 20, 2001, when the Supreme Court denied his writ for certiorari. Apprendi was decided on June 26, 2000, almost eight months prior thereto. Therefore, because his case was not yet final at the time Apprendi was decided, [petitioner] was entitled to invoke Apprendi.")

Second, the Court "must [s]urve[y] the legal landscape as it then existed, and determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Lambrix v. Singletary, 520 U.S. at 527, 117 S.Ct. at 1524 (citations internal quotations omitted, brackets in original).²⁵ "In general,. . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. at 301, 109 S.Ct. at 1070 (citations omitted).²⁶

25 Accord, e.g., O'Dell v. Netherland, 521 U.S. at 156.117 S.Ct. at 1973: Goeke v. Branch. 514 U.S. at 118, 115 S.Ct. at 1277: Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953.

26 Accord, e.g., Butler v. McKellar, 494 U.S. 407.412. llOS.Ct. 1212.1216 (1990): Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944 (1989), abrogated on other grounds. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).

Finally, if the habeas petitioner asserts the benefit of a new rule of procedure, "the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity," Lambrix v. Singletary, 520 U.S. at 526-27, 117 S.Ct. at 1524-25, namely:

(1) new rules that "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense"; or (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding."

Coleman v. United States, 329 F.3d at 83 n. 4 (2d Cir.) (citations omitted).²⁷

27 Accord, e.g., Bousley v. United States, 523 U.S. 614, 619-20, 118 S.Ct. 1604, 1609-10 (1998); Horn v. Banks, 536 U.S. at 271 n. 5, 122 S.Ct. at 2150 n. 5; Tyler v. Cain, 533 U.S. at 665, 121 S.Ct. at 2484 ("Under Teague, a new rule can be retroactive to cases on collateral review if, and only if, it falls within one of two narrow exceptions to the general rule of nonretroactivity."); O'Dell v. Netherland, 521 U.S. at 156-57, 117 S.Ct. at 1973; Casparai v. Bohlen, 510 U.S. at 390, 396, 114 S.Ct. at 953, 956; Saffle v. Parks, 494 U.S. 484, 494-95, 110 S.Ct. 1257, 1263-64 (1990); Butler v. McKellar, 494 U.S. 407, 412, 415-16, 110 S.Ct. 1212, 1216, 1218 (1990); Teague v. Lane, 489 U.S. at 311-12, 109 S.Ct. at 1075-76.

As a corollary to Teague, "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716 (1987).²⁸ B. The Supreme Court Decision in Ring Should Be Retroactively Applied to This Case as an Extension of Apprendi

28 Accord, e.g., Teague v. Lane, 489 U.S. at 304-05, 109 S.Ct. at 1072: United States v. Jovner, 313 F.3d 40, 45 (2d Cir. 2002) ("Because 'a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . .,' we are obligated to apply Apprendi to this case.") (quoting Griffith v. Kentucky): United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 n. 2 (2d Cir. 2002) ("Apprendi was not decided until . . . after appellant had been sentenced. Nevertheless, because Apprendi was decided while appellant's appeal was pending, its teachings apply.") (citing Griffith v. Kentucky): United States v. Zillgitt, 286 F.3d 128.131n.1 (2d Cir. 2002) (on direct appeal, applying Apprendi retroactively to 1995 conviction); Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998) (Supreme Court decision that was decided when state case was still on direct appeal held governing precedent); Sosa v. United States, 02 Civ. 1850, 95 CR. 941, 2003 WL 1797885 at *4 (S.D.N.Y. Apr. 3, 2003) ("because his case was not yet final at the time Apprendi was decided, [petitioner] was entitled to invoke Apprendi"): cf. People v. Mitchell, 80 N.Y.2d 519, 526, 591 N.Y.S.2d 990, 993 (1992) ("It is defendants'position that the Griffith rule is binding on this Court. If no Federal constitutional principles are involved, however, the question of retroactivity is one of State law. The Supreme Court has no concern with the uniformity of our law and if only a local question is presented, the 'state courts generally have the authority to determine the retroactivity of their own decisions'. . . .").

The first Teague step is to determine when petitioner's conviction became final. (See page 30 above.) The New York Court of Appeals issued its decision on Besser's direct appeal on May 1, 2001, People v. Besser, 96 N.Y.2d 136, 726 N.Y.S.2d 48 (2001), and since Besser did not petition for certiorari to the Supreme Court, his conviction became final 90 days later, on July 30, 2001. See, e.g., Lambrix v. Singletary, 520 U.S. 518.527.117 S.Ct. 1517.1525 T1997): McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003); see also cases cited in fn.24 above.

Under the second Teague step, the court must determine whether the rule at issue is both "procedural" and "new." (See pages 30-31 above.) There seems little doubt that Ring's overruling of Walton involved a procedural issue. The Second Circuit has repeatedly held that Apprendi involved a procedural rule. See, e.g., Coleman v. United States, 329 F.3d 77, 84-88 (2d Cir. 2003) ( cases cited therein). Because Ring essentially is an extension of Apprendi. courts have consistently held that Ring involved a procedural rule as well. See Turner v. Crosby, 339 F.3d 1247, 1284 (11th Cir. 2003) ("Just as Apprendi 'constitutes a procedural rule because it dictates what fact-finding procedure must be employed,'. . .Ring constitutes a procedural rule because it dictates what fact-finding procedure must be employed in a capital sentencing hearing . . . We agree with other courts who have concluded that because Apprendi was a procedural rule, it axiomatically follows that Ring is also a procedural rule."); Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002) ("this court's recent conclusion . . . that Apprendi announced a rule of criminal procedure forecloses [petitioner's] argument that Ring announced a substantive rule"); Arizona v. Towery, 204 Ariz. 386, 391, 64 P.3d 828, 832-33 ("Logic dictates that if Apprendi announced a procedural rule, then, by extension, Ring . . . did also."), cert. denied, 124 S.Ct. 44 (2003).

The more difficult question is whether Ring involved a "new" rule of procedure. The "question must be answered by reference to the underlying purposes of the habeas writ. Foremost among these is ensuring that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of the proceedings." Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260 (1990).

In Teague, the Supreme Court held that "[i]n general,. . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . [or] if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070 (1989); accord, e.g., Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 1216 (1990); Coleman v. United States, 329 F.3d at 82. The Supreme Court deems a decision new even when it is "controlled" or "governed" by prior law, Butler v. McKellar, 494 U.S. at 415, 110 S.Ct. at 1217-18, and is "the most reasonable interpretation of prior law," unless "no other interpretation was reasonable," Lambrix v. Singletary, 520 U.S. at 538, 117 S.Ct. at 1530; accord, e.g., Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 902 (1993) ("The result in a given case is not dictated by precedent if it is susceptible to debate among reasonable minds, or, put differently, if reasonable jurists may disagree.") (internal quotation marks omitted); Butler v. McKellar, 494 U.S. at 415, 110 S.Ct. at 1217-18 (when a rule is "susceptible to debate among reasonable minds," as evidenced by, for example, a circuit split, the rule is "new"). Further, "[t]he interests in finality, predictability, and comity underlying [the Supreme Court's] new rule jurisprudence may be undermined to an equal degree by the invocation of a rule that was not dictated by precedent as by the application of an old rule in a manner that was not dictated by precedent." Stringer v. Black, 503 U.S. 222, 228, 112 S.Ct. 1130, 1135 (1992) ("it is necessary to inquire whether granting the relief sought would create a new rule because the prior decision is applied in a novel setting, thereby extending the precedent"); accord, e.g., Coleman v. United States, 329 F.3d at 89 n. 10 ("Teague applies not only to 'new rules,' but also to 'the application of an old rule in a manner that was not dictated by precedent.'"); United States v. Mandanici, 205 F.3d 519, 527 (2d Cir.) (Stringer "extend[ed] Teague to novel applications of old rules"), cert. denied, 531 U.S. 879, 121 S.Ct. 190 (2000), 536 U.S. 961, 122 S.Ct. 2666 (2002).

A decision is not new if "it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944 (1989) (internal quotation marks omitted), abrogated on other grounds. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002). The court must "[s]urve[y] the legal landscape as it then existed, and determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Lambrix v. Singletary, 520 U.S. at 527, 117 S.Ct. at 1524 (citations internal quotations omitted, brackets in original); accord, e.g., Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 898 (1993) ("[U]nless reasonable jurists hearing petitioner's claim at the time his conviction became final 'would have felt compelled by existing precedent' to rule in his favor, we are barred from doing so now."); Saffle v. Parks, 494 U.S. at 488, 110 So. Ct. at 1260 ("Under this functional view of what constitutes a new rule, our task is to determine whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution."). "The 'new rule' principle . . . validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. at 414.110 S.Ct. at 1217: see O'Dell v. Netherland, 521 U.S. 151, 166, 117 S.Ct. 1969, 1978 (1997) (Teague requires that state court judges act "reasonably, not presciently").

"A new decision that explicitly overrules an earlier holding obviously 'breaks new ground' or 'imposes a new obligation.'" Butler v. McKellar, 494 U.S. at 412, 110 S.Ct. at 1216; accord, e.g., Graham v. Collins, 506 U.S. at 467, 113 S.Ct. at 897; United States v. Mandanici, 205 F.3d at 528. "In the vast majority of cases, however, where the new decision is reached by an extension of the reasoning of previous cases, the inquiry will be more difficult." Butler v. McKellar, 494 U.S. at 412-13, 110 S.Ct. at 1216; accord, e.g., Saffle v. Parks, 494 U.S. at 488, 110 S.Ct. at 1260 ("The explicit overruling of an earlier holding no doubt creates a new rule; it is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases.").

The "new rule" question thus requires a substantive analysis of the relevant Supreme Court precedent: Walton. Apprendi, and Ring.

1. The Supreme Court Decisions in Walton. Apprendi and Ring a. Walton v. Arizona

In Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990), the Supreme Court upheld Arizona's capital sentencing statute under which a judge, rather than a jury, determined whether the prosecution had established an aggravating factor necessary to subject the defendant to the death penalty. M. at 642-44, 647-49, 110 S.Ct. at 3051-52, 3054-55. According to the Walton Court's construction of the Arizona sentencing statute, after a jury finds a defendant guilty of first-degree murder, the trial court alone conducts a sentencing hearing to determine whether the sentence should be death or life imprisonment. Id. At 643, 110S. Ct. at 3051. "In the course of such hearing, the judge is instructed to determine the existence or nonexistence of any of the [statutory] aggravating or mitigating circumstances. . . ." Id. "The court is directed to return a special verdict setting forth its findings as to aggravating and mitigating circumstances and then 'shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in [the sentencing statute] and that there are no mitigating circumstances sufficiently substantial to call for leniency.'" Id. at 644, 110 S.Ct. at 3052 (quoting Arizona sentencing statute).

The Supreme Court held this capital sentencing scheme constitutional, as "'the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.'" Id. at 648, 110 S.Ct. at 3054 (quoting Hildwin v. Florida, 490 U.S. 638, 640-641, 109 S.Ct. 2055, 2057 (1989)). The Supreme Court inWalton explained that:

"Aggravating circumstances are not separate penalties or offenses, but are 'standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself 'convict' a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not 'acquit' a defendant (i.e., preclude the death penalty)."

Walton v. Arizona, 497 U.S. at 648, 110 S.Ct. at 3054 (quoting Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755 (1986)). The Supreme Court concluded that a state is not "required to denominate aggravating circumstances 'elements' of the offense or permit only a jury to determine such circumstances' existence." Id. at 649, 110 S.Ct. at 3055. In dissent, Justice Stevens argued that "Arizona's aggravating circumstances . . . operate as statutory 'elements' of capital murder under Arizona law because in their absence, that sentence is unavailable. . . ." Id. at 709 n. 1, 110 S.Ct. at 3087 n. 1 (Stevens, J., dissenting). Justice Stevens contended that because these "findings of factual elements [were] necessary to establish a capital offense," such findings must be determined by a jury rather than a judge. Id. at 710-14, 110 S.Ct. at 3087-89 (Stevens, J., dissenting).²⁹ b. Apprendi v. New Jersey

29 Nine years later, in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), the Supreme Court addressed whether the federal carjacking statute, 18 U.S.C. § 2119, "defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." Jones v. United States, 526 U.S. at 229, 119 S.Ct. at 1217. Although acknowledging that § 2119 was susceptible of either construction, the Court held that the statute established three separate offenses, each of which must be found by a jury beyond a reasonable doubt, because to hold otherwise would lead to "grave and doubtful constitutional questions" about the statute's constitutionality. Id. at 229, 239, 251-52, 119 So. Ct. at 1217, 1222, 1228. In dicta, the Court explained that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6. The Jones Court distinguished certain capital sentencing factors, including those upheld in Walton. Id. at 251, 119 So. Ct. at 1228. A "careful reading of Walton's rationale," the Court stated, reveals that the statute at issue in Walton allowed a sentencing judge to use findings of aggravating factors to choose "between a greater and a lesser penalty," but did not permit the judicial findings to "rais[e] the ceiling of the sentencing range available." Id. Therefore,Jones did not overrule Walton, but limited it and indicated it must be carefully read. Id.

Ten years after Walton, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), a 5 to 4 decision written by Justice Stevens (who had dissented in Walton), the Supreme Court found a due process violation where a judge enhanced a defendant's sentence based on the judge's finding, by a preponderance of the evidence, that the underlying crime had been motivated by racial bias. Id. at 470-71, 120 S.Ct. at 2752.Apprendi involved a challenge to an enhanced sentence imposed pursuant to New Jersey's hate crime law following a state criminal conviction. Defendant had fired several bullets into the home of an African American family that had recently moved into a previously all-white New Jersey neighborhood, and pleaded guilty to state charges of possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. at 2351-52. At sentencing, the state judge who accepted defendant's guilty plea found, by a preponderance of the evidence, "'that the crime was motivated by racial bias'" and, pursuant to New Jersey's hate crime law, enhanced defendant's sentence above the statutory maximum prescribed by the firearm possession law. Id. at 470-71, 120 So. Ct. at 2352. The New Jersey Supreme Court affirmed the sentence; the United States Supreme Court reversed. Id. at 472-74, 120 S.Ct. at 2353-54.

The Supreme Court noted that its decision in Apprendi was "foreshadowed by [its] opinion in Jones." where the Supreme Court had stated that "'under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. at 476, 120 S.Ct. at 2355 (quoting Jones v. United States, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6). Applying this reasoning, the Apprendi Court held that "[t]he Fourteenth Amendment commands the same answer in [a] case involving a state statute," Apprendi v. New Jersey, 530 U.S. at 476, 120 S.Ct. at 2355, and thus concluded that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, 120 S.Ct. at 2362-63.³⁰

30 Because Apprendi did not assert a claim based on the failure to mention the sentence enhancement in his indictment, the Supreme Court did not address that issue. Id. at 477 n. 3, 120 S.Ct. at2355n.3.

The Supreme Court noted that "judges in this country have long exercised discretion . . . in imposing sentence" "within the range prescribed by statute." Id. at 481, 120 S.Ct. at 2358 (emphasis added).

The historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.

. . . The judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition "elements" of a separate legal offense.

Id. at 482-83 n. 10, 120 S.Ct. at 2359 n. 10. The Supreme Court explained that it is irrelevant whether the required fact-finding is labeled an "element" or a "sentencing factor": "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494, 120 So. Ct. at 2365. Thus it is no defense to argue that the fact at issue is "simply a 'traditional' sentencing factor." Id.

The Supreme Court described the "prior convictions" exception as "a narrow exception to the general rule," which exception originated inAlmendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998), a decision that was "arguabl[y] . . . incorrectly decided." Apprendi v. New Jersey, 530 U.S. at 487-90, 120 So. Ct. at 2361-62. The exception's rationale is the "certainty that procedural safeguards attached to any 'fact' of prior conviction." Id. at 488, 120 S.Ct. at 2362. "[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Id. at 496, 120 S.Ct. at 2366.

The Supreme Court in Apprendi also distinguished Walton, as follows:

[T]his Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647-649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); id., at 709-714, 110 S.Ct. 3047 (STEVENS, J., dissenting). For reasons we have explained, the capital cases are not controlling:

"Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it maybe left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed. . . . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge." Almendarez-Torres, 523 U.S., at 257, n. 2, 118 S.Ct. 1219 (SCALIA, J., dissenting) (emphasis deleted).

Apprendi v. New Jersey, 530 U.S. at 496-97, 120 S.Ct. at 2366 (emphasis added). Thus, the Supreme Court in Apprendi seemed to conclude (as it had in Jones) that a first-degree murder conviction in Arizona carried a maximum sentence of death; the judge's findings in Walton merely aided in the selection of an appropriate sentence within a range of penalties that already included capital punishment. Justice O'Connor's dissent inApprendi dismissed this distinction as "baffling" given that "[a] defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty." Apprendi v. New Jersey, 530 U.S. at 536-39, 120 S.Ct. at 2387-89 (O'Connor, J., dissenting). The Apprendi Court's statement that a "the jury makes all of the findings necessary to expose the defendant to a death sentence" was, in Justice O'Connor's opinion, "demonstrably untrue." Id. at 538, 120 S.Ct. at 2385. Justice O'Connor continued: "If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today." Id.

In his Apprendi concurrence (which was necessary to achieve a majority), Justice Thomas distinguished Walton as a capital sentencing case:

Walton did approve a scheme by which a judge, rather than a jury, determines an aggravating fact that makes a convict eligible for the death penalty, and thus eligible for a greater punishment. In this sense, that fact is an element. But that scheme exists in a unique context, for in the area of capital punishment, unlike any other area, we have imposed special constraints on a legislature's ability to determine what facts shall lead to what punishment — we have restricted the legislature's ability to define crimes. Under our recent capital-punishment jurisprudence, neither Arizona nor any other jurisdiction could provide-as, previously, it freely could and did — that a person shall be death eligible automatically upon conviction for certain crimes. We have interposed a barrier between a jury finding of a capital crime and a court's ability to impose capital punishment. Whether this distinction between capital crimes and all others, or some other distinction, is sufficient to put the former outside the rule that I have stated is a question for another day.

Apprendi v. New Jersey, 530 U.S. at 522-23, 120 S.Ct. at 2380 (Thomas, J., concurring).³¹ c. Ring v. Arizona

31 Justice O'Connor's dissent noted that "Justice THOMAS gives no specific reason for excepting capital defendants from the constitutional protections he would extend to defendants generally, and none is readily apparent." Id. at 539, 120 S.Ct. at 2388 (O'Connor, J., dissenting).

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), the Supreme Court again addressed Arizona's capital sentencing statute. Id. at 588-89, 122 S.Ct. at 2432. The Supreme Court stated at the outset that it had "granted Ring's petition for a writ of certiorari . . . to allay uncertainty in the lower courts caused by the manifest tension betweenWalton and the reasoning of Apprendi." Ring v. Arizona, 536 U.S. at 596, 122 So. Ct. at 2436.

The Ring Court recited the holdings of Walton and Apprendi, focusing especially on Justice O'Connor's Apprendi dissent arguing that theApprendi decision, in defending Walton, had misconstrued the Arizona sentencing statute. See Ring v. Arizona, 536 U.S. at 598-604, 122 S.Ct. at 2437-41. The Ring Court observed that afterApprendi, the Arizona Supreme Court had clarified that Arizona's sentencing statute worked "'precisely as described in Justice O'Connor's dissent [in Apprendi] — Defendant's death sentence required the judge's factual findings.'" Ring v. Arizona, 536 U.S. at 596, 122 S.Ct. at 2436; accord, id. at 603, 122 S.Ct. at 2440 ("The Arizona Supreme Court . . . found the Apprendi majority's portrayal of Arizona's capital sentencing law incorrect, and the description in Justice O'CONNOR'S dissent precisely right . . . "). The Arizona court's definitive interpretation of Arizona procedure persuaded the Ring Court that "Walton, in relevant part, cannot survive the reasoning of Apprendi."Id. at 603, 122 S.Ct. at 2440. As a result, the Ring Court rejected Arizona's argument that because petitioner Ring "was convicted of first-degree murder, for which Arizona law specifies 'death or life imprisonment' as the only sentencing options,. . . Ring was therefore sentenced within the range of punishment authorized by the jury verdict,"Ring v. Arizona, 536 U.S. at 603-04, 122 S.Ct. at 2440.

[Arizona's] argument overlooks Apprendi's instruction that "the relevant inquiry is one not of form, but of effect." In effect, "the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict.". . . . The Arizona first-degree murder statute "authorizes a maximum penalty of death only in a formal sense," for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. . . . If Arizona prevailed on its opening argument, Apprendi would be reduced to a "meaningless and formalistic" rule of statutory drafting.

Ring v. Arizona, 536 U.S. at 604, 122 S.Ct. at 2440-41 (citations omitted). "Because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." Id. at 609, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. at 2365 n. 19). The Supreme Court in Ring therefore explicitly overruled Walton. Ring v. Arizona, 536 U.S. at 589, 609, 122 S.Ct. at 2432, 2443. "Capital defendants, no less than noncapital defendants,. . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring v. Arizona, 536 U.S. at 589, 122 S.Ct. at 2432.³² 2. Because Ring Constituted a New Rule Solely As To The Death Penalty, Ring Should Not Be Considered a New Rule For the Purpose of this Non-Capital Action, And Thus May Be Applied Retroactively to Besser's Claim

32 As in Apprendi. Ring did not challenge the constitutionality of his indictment and so the Supreme Court did not address that issue. Ring v. Arizona, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4.

The State argues that Walton is precisely on point here, as Walton "permits a judge to make factual findings resulting in imposition of an enhanced sentence as long as there has been a jury finding supporting eligibility for this enhanced sentencing." (Dkt. No. 10: State Br. at 50.) In Apprendi, the Supreme Court expressly declined to overruleWalton, see Apprendi v. New Jersey, 530 U.S. 466, 496-97, 120 S.Ct. 2348, 2366 (2000), and did not overrule Walton until it issued Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), in 2002 — after Besser's conviction became final. (State Br. at 50.) Accordingly, in the State's view, the Ring decision overruling Walton "was not dictated by precedent existing at the time [Besser's] conviction became final," Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070 (1989). (State Br. at 50-51.) According to the State, Ring's overruling of Walton was thus a "new rule" not retroactively applicable to this habeas case, and the applicable Supreme Court precedent for Teague and AEDPA purposes at the time of the New York Court of Appeals' Rosen and Besser decisions includes Walton and Apprendi but not Ring.³³

33 Both parties in the Rosen habeas case agreed that the State arguedWalton to the New York Court of Appeals, and that the Nw York Court of Appeals' decision in Rosen tracked the language of, but did not cite,Walton. (Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 4: Rosen Habeas Br. at 17-18; Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 11: State Habeas Br. at 25.)

In the Rosen habeas case before Judge Hellerstein, petitioner Rosen contended to the contrary that "Ring did not state a new rule, but was dictated by Apprendi." (Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 12: Rosen Habeas Reply Br. at 12.) In the Rosen petitioner's view, "all nine justices in Ring agreed that, as Justice Kennedy put it in his concurring opinion, 'no principled reading of Apprendi . . . would allow Walton . . . to stand." (Rosen Habeas Reply Br. at 12 (quoting Apprendi, 536 U.S. at 613, 120 S.Ct. at 2445 (Kennedy, J., concurring))). The originalWalton decision, and Apprendi's express decision not to overrule Walton, thus were caused simply by the Supreme Court's misunderstanding of Arizona procedure (as ultimately explained in Ring). (Rosen Habeas Reply Br. at 12-13.)

The Rosen petitioner's argument goes too far. Under Teague, "our task is to determine whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks [i.e., Ring's overruling of Walton] was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488, HOS.Ct. 1257, 1260 (1990). The Supreme Court has admonished lower courts to "leav[e] to [the Supreme] Court the prerogative of overruling its own decisions," Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017 (1997) (citing Rodriguez de Ouiias v. Shearson/American Express. Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22 (1989)).³⁴ Thus, because Apprendi expressly declined to overrule Walton, it was not within the New York Court of Appeals' power in Besser to deem Walton impliedly overruled.³⁵

34 Accord, e.g., United States v. Hatter, 532 U.S. 557, 567, 121 S.Ct. 1782, 1790 (2001); United States v. Ouinones, 313 F.3d 49, 62 n. 10, 69 (2d Cir. 2002); Perez v. Greiner, 296 F.3d 123, 125 n. 4 (2d Cir. 2002).

35 Moreover, it would be unreasonable to expect that the New York Court of Appeals, ruling after Apprendi but before Ring, should have somehow intuited that: (1) the Walton holding was based on a misunderstanding of the facts; and (2) the Apprendi Court would have reversed Walton had the Supreme Court understood the correct facts. See O'Dell v. Netherland, 521 U.S. 151, 166, 117 S.Ct. 1969, 1978 (1997) (league requires that judges act "reasonably, not presciently"). TheApprendi plurality's efforts to distinguish Walton simply were not sufficiently clear. Apprendi v. New Jersey, 530 U.S. at 496-97, 120 S.Ct. at 2366.

Nevertheless, this Court rules in Besser's favor on the Teague/AEDPA issue, but for reasons different than those advocated by the parties.

While it is true that "[a] new decision that explicitly overrules an earlier holding obviously 'breaks new ground' or 'imposes a new obligation,'" Butler v. McKellar, 494 U.S. 407, 412, 110 So. Ct. 1212, 1216 (1990),³⁶ the Ring decision overruled only that aspect ofWalton that survived Apprendi. After Apprendi, Walton's holding appears to have been limited solely to death penalty cases. By explicitly overruling Walton, the Ring decision merely extended Apprendi in the capital context. Accordingly, the Ring holding, although a "new rule" with respect to death penalty cases, is not a new rule as to Besser's non-capital action.

36 See, e.g., Arizona v. Towery, 204 Ariz. 386, 390, 64 P.3d 828, 832 (2003) (Capital cases: "Clearly, the Ring II decision breaks new ground because it expressly overruled Walton In Walton, the Court rejected Walton's argument that the Sixth Amendment demands that a jury, rather than a judge, find the presence of aggravating circumstances and upheld Arizona's capital sentencing statute, the same statute as that struck down in Ring II. . . . Because Walton governed at the time the petitioners' cases became final, precedent obviously did not dictate the holding of Ring n." cert. dismissed, 124 S.Ct. 44 (2003); Colwell v. State, 59 P.3d 463, 469-73 (Nev. 2002) (Capital case: "Because Ring dealt with conflicting prior authority and expressly overruled precedent in announcing its rule, we conclude that the rule is new.").

Several points support this holding. First, the Apprendi decision at least implied that, although Walton was not being overruled, it was limited (as far as the Apprendi doctrine went) to death penalty cases. In other words, in light of Walton, the Apprendi holding would apply to all except capital cases. As noted above, Justice Thomas, who supplied the fifth Apprendi vote, explained in his concurrence that Walton was distinguishable — and would survive Apprendi (at least temporarily) — solely because it involved the death penalty. (See pages 41-42 above.) Further, in holding that Walton was not overruled, the maj ority expressly highlighted that Walton was a capital case. See Apprendi v. New Jersey, 530 U.S. at 496-97, 120 S.Ct. at 2366 ("this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes . . ." [citing Walton]).

Second, the cases decided prior to Ring consistently held, when attempting to harmonize Walton with Apprendi, that Apprendi applied to all cases except capital cases, which would continue to be governed by Walton. In United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 535 U.S. 1098, 122 S.Ct. 2296 (2002), for example, the Fourth Circuit, en banc, recited Justice Thomas' Apprendi concurrence limiting Walton's reach to capital cases, id. at 158-59, and then explained the capital/non-capital distinction:

As noted by the Apprendi majority, the maximum penalty for first degree murder under Arizona law is death, but Arizona law interposes procedural safeguards, including additional factual determinations, between a finding of guilt and the imposition of a death sentence. And, as Justice Thomas explained in his concurrence, the additional safeguards provided by Arizona do not necessarily reflect a legislative determination that the elements of first degree murder are, by themselves, insufficient to justify capital punishment; rather, those safeguards were enacted to comply with the strict Eighth Amendment requirements that govern capital cases, which do not include proof beyond a reasonable doubt or fact-finding by a jury.

In contrast, the penalty gradations in [21 U.S.C.] § 841(b)(1) [the drug statute at issue] are not the product of constitutionally mandated procedures as a condition precedent to the imposition of the maximum penalty, but rather are the result of congressional prerogative to apply graduated penalties to acts of increasing severity . . . No constitutional constraints compelled Congress to classify drug-trafficking offenses in this manner; on the contrary, Congress was free to establish a uniform maximum penalty that did not depend on proof of quantity or other additional facts. But Congress did make the available penalty depend on additional facts, and the Constitution governs the process for determining those facts. Under Apprendi, that process must include charge by indictment and proof to a jury beyond a reasonable doubt.

We acknowledge Justice O'Connor's sentiment regarding the interplay between Walton and Apprendi: It is at least perplexing, if not "baffling," that due process protections apply to a finding of specific threshold drug quantities under § 841(b)(1) when such protections do not apply to factual findings of aggravating circumstances subjecting a defendant to the death penalty. Apprendi, 530 U.S. at 538, 120 S.Ct. 2348 (O'Connor, J., dissenting). It is for the Supreme Court, however, to resolve this conundrum. Until that happens, we must adhere to both Walton and Apprendi,

United States v. Promise, 255 F.3d at 159-60 (citations omitted).³⁷ The Promise Court thus harmonized Walton and Apprendi by limiting Walton to capital cases and applying Apprendi in the non-capital context. Id. at 159-60; accord Illinois v. Kaczmarek, 318 Ill. App.3d 340, 351-52, 251 Ill. Dec. 953, 964, 741 N.E.2d 1131, 1142 (2000) (Applying Apprendi in non-capital case: "The State essentially maintains that the dictates ofApprendi must apply equally to capital and noncapital defendants. The Supreme Court, however, specifically limited its holding in Apprendi to noncapital cases and was careful to note that its decision does not disturb its earlier ruling in Walton. . . . Thus, while it appears Apprendi extends greater constitutional protections to noncapital, rather than capital, defendants, the Court has endorsed this precise principle, and we are in no position to secondguess that decision here."), reversed on other grounds, 207 I11.2d 288 (2003) (findingApprendi violation to be harmless error).³⁸

37 In determining whether a rule is "new" under Teague, the Supreme Court itself has looked to lower federal court and state court decisions for support. For example, in Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948 (1994), after "conclud[ing] that a reasonable jurist reviewing [the Supreme Court's] precedents at the time [the] conviction and sentence became final would not have considered the application of the Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by [its] precedents," the Supreme Court stated: "[t]his analysis is confirmed bythe experience of the lower courts." Id. at 393-95, 114 S.Ct. at 955-56: accord Lambrix v. Singletary, 520 U.S. 518. 538. 117 S.Ct. 1517, 1530 (1997) (considering lower federal court and state court decisions in Teague "new rule" analysis): see also Caspari v. Bohlen, 510 U.S. at 395, 114 S.Ct. at 956 ("Constitutional law is not the exclusive province of the federal courts, and in the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts.").

38 After Apprendi and before Ring, courts consistently declined to apply Apprendi to capital cases, following Walton instead. See, e.g., Hoffman v. Arave, 236 F.3d 523, 542 (9th Cir. 2001) ("We are aware that four dissenting Justices in Apprendi asserted that Apprendi effectively overruled Walton, and that one concurring Justice stated that Walton could be reexamined on 'another day.' But while Apprendi may raise some doubt about Walton, it is not our place to engage in anticipatory overruling. . . . We therefore conclude that Walton forecloses [petitioner's] Apprendi-based challenge to Idaho's capital sentencing scheme."), cert. denied, 534 U.S. 944, 122 S.Ct. 323 (2001); Sayjor v. Indiana, 765 N.E.2d 535, 563, 564 n. 23 (Ind. 2002) ("[A]lthoughApprendi may raise doubt about the continued validity of Walton, until it is expressly overruled, Walton is still good law. . . . We conclude that in light of Walton, [defendant's] Apprendi-based challenge to Indiana's death penalty statute must fail." "We note in passing that with the exception of four panels of the intermediate appellate court in Illinois, no state or federal court has extended Apprendi to its capital sentencing scheme." (collecting state cases)); Borchardt v. Maryland, 367 Md. 91, 115-20, 786 A.2d 631, 645-48 (Md. 2001) ("[E]fforts have been made throughout the country to use [Jones and Apprendi] to impale capital punishment laws. All such efforts, to date, have been unsuccessful.") (collecting cases), certdemed, 535 U.S. 1104, 122 S.Ct. 2309 (2002);Mills v. Moore, 786 So.2d 532, 537 (Fla.) ("Because Apprendi did not overrule Walton, the basic scheme in Florida is not overruled either. . . . The majority opinion in Apprendi forecloses [defendant's] claim because Apprendi preserves the constitutionality of capital sentencing schemes like Florida's. Therefore, on its face, Apprendi is inapplicable to this case. No court has extended Apprendi to capital sentencing schemes, and the plain language of Apprendi indicates that the case is not intended to apply to capital schemes."), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752 (2001); Arizona v. Sansing, 200 Ariz. 347, 360, 26 P.3d 1118, 1131 (2001) (rejecting application of Apprendi to capital case: "The [capital] defendant claims denial of a jury trial violated his rights under the Fourteenth Amendment Equal Protection Clause because defendants in non-capital cases are permitted to have juries determine aggravating factors. The United States Supreme Court and this court have rejected this argument." [citing Walton]), vacated, 536 U.S. 954, 122 S.Ct. 2654 (2002) (vacated in light of Ring v. Arizona): Weeks v. Delaware, 761 A.2d 804, 806 (Del.) fen bane) ("[W]e are not persuaded that Apprendi's reach extends to 'state capital sentencing schemes' in which judges are required to find 'specific aggravating factors before imposing a sentence of death.'"), cert. denied, 531 U.S. 1004, 121 S.Ct. 476 (2000); North Carolina v. Golphin, 352 N.C. 364, 396-97, 533 S.E.2d 168, 193-94 (2000) ("The United States Supreme Court's recent opinion in Apprendi . . . does not affect our prior holdings regarding the inclusion of aggravating circumstances in an indictment. . . .[A]n indictment need not contain the aggravating circumstances the State will use to seek the death penalty "), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 1380(2001).

Third, this Court's research has revealed no federal or state decision in which a court held that Walton remained good law in the non-capital context subsequent to Apprendi. In other words, it appears that none of the many post-Apprendi decisions to consider the Apprendi issue appliedWalton outside the capital sentencing context.

Fourth, Ring itself implied that it merely extended Apprendi's reach to capital cases: "For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. . . . The right to trial by jury guaranteed by the Sixth Amendment wouldbe senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both." Ring v. Arizona, 536 U.S. at 609, 122 S.Ct. at 2443 (2002); see id. at 589, 122 S.Ct. at 2432 ("Apprendi's reasoning is irreconcilable with Walton's holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.") Lower courts have followed suit, explaining that Ring simply appliedApprendi to capital cases. See, e.g., Turnery. Crosby, 339 F.3d 1247.1284 (11th Cir. 2003) (Holding Ring not retroactively applicable to habeas petition in capital case: "Ring is essentially an application of Apprendi to the capital sentencing context. . . ." "Apprendi may have been a harbinger for the partial demise of Walton and the constitutional validity of judge-imposed death sentences. Nonetheless, prior to the outcome in Ring, courts had been upholding judge-imposed death sentences in Walton and its progeny."): Trueblood v. Davis, 301 F.3d 784, 788 (7th Cir. 2002) (Ring not retroactive on habeas in capital easel cert. denied, 123 S.Ct. 1650(2003); Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (Holding Ring not retroactively applicable to successive habeas petition in capital case: "[i]t is clear . . . that Ring is simply an extension of Apprendi to the death penalty context"); United States v. Battle, 264 F. Supp.2d 1088, 1100-03 (N.D. Ga. 2003) (Holding Ring not retroactively applicable to § 2255 petition in capital case);Nebraska v. Lotter, 266 Neb. 245, 254-62, 664 N.W.2d 892, 903-08 (2003) (Ring not retroactively applicable on collateral review in capital case); Missouri v. Whitfield, 107 S.W.3d 253, 257, 266-69 (Mo. 2003) (Ring "extended to the capital sentencing setting Apprendi's holding"; applying Ring retroactively in capital case, choosing "not to adopt theTeague . . . approach to the issue of retroactivity of Ring"); Arizona v. Towery, 204 Ariz. 386, 390, 64 P.3d 828, 832-33 (Holding Ring not retroactively applicable in capital case: "Ring . . . extends Apprendi's interpretation of the Sixth Amendment to the capital context").³⁹

39 The Nevada Supreme Court, in a capital case, explained that Ring was only new law to the extent it overruled Walton in the capital context:

Ring applied prior case law — which had established the principle that a jury must find any fact (other than a prior conviction) that increases the maximum penalty for an offense — to closely analogous facts. This would suggest that Ring did not announce a new rule, but Ring also had to address another prior opinion which had held that this principle was inapposite to Arizona's capital sentencing scheme. The Court concluded that this prior opinion was untenable and overruled it. Because Ring dealt with conflicting prior authority and expressly overruled precedent in announcing its rule, we conclude that the rule is new. Colwell v. State, 59 P.3d 463, 469-73 (Nev. 2002).

The Ninth Circuit, en bane, even went so far as to apply Ring retroactively in a capital habeas case. Summerlin v. Stewart, 341 F.3d 1082T 9th Cir. 2003) fen bane). The Ninth Circuit was unwilling to see other Arizona death row inmates be executed, despite Ring's invalidation of Arizona's procedure of having judge's determine aggravating factors for imposing the death penalty, merely because their convictions were final. Id. at 1096-97 (" [N]ow that the Supreme Court has decided that Timothy Ring's capital murder conviction must be vacated because the judge was constitutionally disqualified from deciding whether Ring was eligible for the death penalty, the question is whether others who received the same constitutionally unfair sentence, including those who previously raised the identical issue [fn. omitted referring to Jeffrey Walton], are eligible for the same relief or whether they should remain subject to execution."). The Ninth Circuit found Ring to be a substantive, not procedural, rule as applied to Arizona's death penalty statute. Id. at 1101-16. In addition, the Ninth Circuit found Ring to be a "watershed rule," thus coming within one of the exceptions to the general Teague non-retroactivity rule. Id. at 1116-21. In distinguishing its prior decision that declined to apply Apprendi retroactively, the Ninth Circuit repeated that "capital cases are structurally much different from non-capital criminal trials." Id. at 1121. In short, the Ninth Circuit's decision is based entirely on the premise that death is different.

In short, while courts have held that Ring is not retroactive under theTeague standard, the published decisions appear to be limited to the capital context.⁴⁰ Because, subsequent to Apprendi, the Walton decision affected only capital cases, Ring's overruling of Walton did not automatically render Ring's holding a "new rule" as to the non-capital case at bar. Cf. Gay v. United States, 02 Civ. 10193, 2003 WL 352479 at *1 (S.D.N.Y. Feb. 7, 2003) (holding in non-capital case that Ring did not extend AEDPA's time limitation under 28 USCA § 2255(3) (which applies where a "right has been newly recognized by the Supreme Court"), as "Ring was an application of Apprendi . . ., and did not itself recognize a new right").⁴¹

40 See, e.g., Szabo v. Walls, 313 F.3d 392, 398-99 (7th Cir. 2002) (capital case: "in order to apply Apprendi to capital sentencing, Ring first had to overrule Walton. . . . Given Teague, it is Walton and notRing that governs [petitioner's] claims on collateral attack."); see also Ring v. Arizona, 536 U.S. at 620-21, 122 So. Ct. at 2449-50 (O'Connor, J., dissenting) (noting that decision would not benefit the majority of prisoners already on death row because they would be barred from raising the issue retroactively on federal collateral review under Teague).

41 28 U.S.C. § 2244(b)(2)(A) provides that successive habeas petitions must be dismissed "unless . . . the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court . . ." 28 U.S.C. § 2244(b)(2)(A). Courts have consistently held (albeit only in the capital context) that because the Supreme Court has not expressly made Ring retroactive to cases on collateral review, Ring cannot provide grounds for a successive habeas petition under 28 U.S.C. § 2244.See, e.g., Moore v. Kinnev, 320 F.3d 767, 771 n. 3 (8th Cir. 2003) fen bane) (citing Tyler v. Cain, which in turn cited 28 U.S.C. § 2244(b)(2)(A), and noting that "[t]he Supreme Court did not, and has not, expressly made the ruling in Ring retroactive" and "[a]bsent an express pronouncement on retroactivity from the Supreme Court, the rule from Ring is not retroactive"), cert. denied, 123 S.Ct. 2580 (2003); Cannon v. Mullin, 297 F.3d 989, 992-94 (10th Cir. 2002) (Holding that Ring was not retroactive on successive habeas petition in capital case, as the Supreme Court did not "ma[k]e that new rule retroactive to cases on collateral review," citing 28 U.S.C. § 2244(b)(2)(A).). In Lessley v. Bruce, No. Civ. A. 02-3234, 2003 WL 21402580 at *4 (D. Kan. June 16, 2003) a non-capital case involving an initial habeas petition, the Court improperly relied onCannon v. Mullin (a successive petition capital case) and Arizona v. Towery (a capital case) to find that Ring is not retroactive on collateral review.
The Fifth Circuit's dicta in In re Johnson, 334 F.3d 403, 404 n. 1 (5th Cir. 2003), also was erroneous, as it asserted, in a successive petition capital case, that because Apprendi is not retroactively applied underTeague, and "[s]ince the rule in Ring is essentially an application of Apprendi. logical consistency suggests that the rule announced in Ring is not retroactively available." Id. at 404 n. 1. Yet, simply becauseApprendi broke new ground does not mean Ring broke new ground as well. If Ring really is a mere application of Apprendi. then Ring is not a "new rule" and thus may be retroactively applied under Teague.

The fact that Ring only overruled Walton in the capital context does not, however, answer the question whether Ring's holding in the non-capital context was actually "dictated" by Apprendi, such that Ring should be considered fully retroactive under the Teague/AEDPA standards. As the Supreme Court pointed out, "[t]he explicit overruling of an earlier holding no doubt creates a new rule; it is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260 (1990). "Teague applies not only to 'new rules,' but also to 'the application of an old rule in a manner that was not dictated by precedent.'" Coleman v. United States, 329 F.3d 77, 89 n. 10 (2d Cir. 2003). Ring should be considered "dictated by precedent" — and thus not a new rule — only if "no other interpretation was reasonable."Lambrix v. Singletary, 520 U.S. 518, 538, 117 S.Ct. at 1530; accord, e.g., Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 902 (1993) ("The result in a given case is not dictated by precedent if it is susceptible to debate among reasonable minds, or, put differently, if reasonable jurists may disagree.") (internal quotation marks omitted)).

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. at 2362-63 (emphasis added). One might therefore argue, as Justice O'Connor did in her Apprendi dissent, that the Apprendi decision appeared to distinguish the Arizona sentencing scheme in Walton (and Ring) from the New Jersey sentencing scheme in Apprendi on the ground that the Arizona statute under which the defendant was convicted "formally" subjected the defendant to the higher penalty, while in Apprendi the court had to look to a separate statute to enhance the penalty:

[U]nder one reading, the Court appears to hold that the Constitution requires that a fact be submitted to a jury and proved beyond a reasonable doubt only if that fact, as a formal matter, extends the range of punishment beyond the prescribed statutory maximum. A State could, however, remove from the jury (and subject to a standard of proof below "beyond a reasonable doubt") the assessment of those facts that define narrower ranges of punishment, within the overall statutory range, to which the defendant may be sentenced. Thus, apparently New Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years' imprisonment for one who commits that criminal offense. Second, New Jersey could pro vide that only those defendants convicted under the statute who are found by a judge, by a preponderance of the e vidence, to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence greater than 10 years' imprisonment.

The Court's proffered distinction of Walton v. Arizona suggests that it means to announce a rule of only this limited effect. The Court claims the Arizona capital sentencing scheme is consistent with the constitutional principle underlying today's decision because Arizona's first-degree murder statute itself authorizes both life imprisonment and the death penalty. "'[O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.'" Of course, as explained above, an Arizona sentencing judge can impose the maximum penalty of death only if the judge first makes a statutorily required finding that at least one aggravating factor exists in the defendant's case. Thus, the Arizona first-degree murder statute authorizes a maximum penalty of death only in a formal sense. In real term s, however, the Arizona sentencing scheme removes from the jury the assessment of a fact that determines whether the defendant can receive that maximum punishment. The only difference, then, between the Arizona scheme and the New Jersey scheme we consider here — apart from the magnitude of punishment at stake — is that New Jersey has not prescribed the 20-year maximum penalty in the same statute that it defines the crime to be punished. It is difficult to understand, and the Court does not explain, why the Constitution would require a state legislature to follow such a meaningless and formalistic difference in drafting its criminal statutes.

Apprendi v. New Jersey, 530 U.S. at 540-41, 120 S.Ct. at 2389-90 (O'Connor, J., dissenting) (citations omitted, emphasis in original).

In other words, one might argue that Walton survived Apprendi, even in the noncapital context, because in Walton, unlike Apprendi, the convicting statute "formally" subjected the defendant to the higher penalty (although further judicial fact-finding was required before the higher penalty could be levied). As described in the next Section, the New York Court of Appeals in Rosen appears to have followed similar reasoning in upholding New York's discretionary persistent felony offender statute. (See Point IV, below.)

Although a close question, this Court rejects the cramped interpretation of Apprendi proffered in Justice O'Connor's dissent. As the Apprendi Court explained, "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"Apprendi v. Arizona, 530 U.S. at 494, 120 S.Ct. at 2365. In Walton. Ring, and Apprendi, as in this case, the judge could legally enhance the defendant's sentence only after finding certain facts beyond those found by the jury. If the Walton holding were allowed to stand in the non-capital context on the grounds proffered by Justice O'Connor, "Apprendi would be reduced to a 'meaningless and formalistic' rule of statutory drafting." Ring v. Arizona, 536 U.S. at 604, 122 S.Ct. at 2441 (quoting Apprendi, 530 U.S. at 541, 120 S.Ct. at 2390 (O'Connor, J., dissenting)).⁴² The only way honestly to distinguish between Walton and Apprendi was on the capital/non-capital axis, as the Fourth Circuit did, en banc, in United States v. Promise, 255 F.3d at 159-60.⁴³ This Court's research has revealed no decisions to the contrary.

42 As the Rosen petitioner pointed out (see Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 4: Rosen Habeas Br. at 17; Rosen v. Walsh, 02 Civ. 7782, Dkt. No. 12: Rosen Habeas Reply Br. at 12 n. 5), all nine justices in Ring seem to have agreed that Walton could not be reconciled withApprendi. See Ring v. Arizona, 536 U.S. at 613, 122 S.Ct. at 2445 (Kennedy, J., concurring) ("no principled reading of Apprendi would allowWalton . . . to stand"); Id. at 614, 122 S.Ct. at 2446 (Breyer, J., concurring) ("I concur in the judgment . . . because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment."); Id. at 619, 122 S.Ct. at 2448 (O'Connor, J. dissenting) ("I understand why the Court holds that the reasoning of Apprendi . . . is irreconcilable with Walton. . . . Yet in choosing which to overrule, I would chooseApprendi, not Walton.").

43 Alternatively, Apprendi's failure to overrule Walton can be explained by the Apprendi plurality's misunderstanding of the Arizona capital sentencing scheme in Walton, as evidenced by the plurality's explanation for why Walton remained good law: "'Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense.'" Apprendi, 530 U.S. at 497, 120 S.Ct. at 2366. Ring later admitted that Apprendi had mistakenly concluded that the jury verdict alone subjected the defendant to the death penalty.

Under the Teague "new rule" standard, therefore, the only reasonable interpretation to be made in the non-capital context was that, at the time Besser's conviction became final, the rule espoused in Ring — applying Apprendi to the Walton sentencing scheme — was essentially identical to that announced in Apprendi and was dictated by Apprendi. (See People v. Rosen, Case No. 02 Civ. 7782, 7/17/03 Hearing at 38 (that the New York Court of Appeals' decision in Rosen was an unreasonable application of Supreme Court precedent "was clear [when] Apprendi was decided and didn't have to wait for Ring"): accord Id. at 42 ("I don't think the issue had to wait forRing. I think it was clear with Apprendi.")). Two New York trial court decisions recently held that Ring fatally undermined the New York Court of Appeals' decision in Rosen, thus implicitly holding that Ring more closely governed the peculiar facts of the New York statute than didApprendi. See People v. West, No. 8529/83, N.Y.L.J. Nov. 17, 2003, at 18 (Sup.Ct. N.Y. Co. Nov. 27, 2003); People v. Cephas, No. 5473/01, 2003 WL 21783355 at *3-4 (Sup.Ct. N.Y. Co. May 23, 2003).⁴⁴

44 In Brown v. Greiner, 258 F. Supp.2d 68 (E.D.N.Y. 2003), Judge Gleeson explained that "in New York, a discretionary persistent felony offender may not legally receive an enhanced sentence unless the court makes factual findings that support its 'opinion' that an extended sentence is appropriate. In that respect, this case and Ring areidentical, with one meaningless exception. . . ." Id. at 92 (emphasis added). Judge Gleeson did not, however, opine on whether the New York scheme more closely resembled the Walton/Ring scheme or the Apprendi scheme.

Because, as far as this non-capital case is concerned, Ring did not constitute a "new rule," Ring is freely applicable to this case despite having been issued after Besser's decision became final⁴⁵ To put it another way, Walton's exception to Apprendi (an exception eliminated by Ring) applied only in the capital context, otherwise Apprendi applied in the non-capital context such as this case, and Apprendi was decided before Besser's conviction became final⁴⁶ IV. THE NEW YORK COURT OF APPEALS' DECISION WAS AN UNREASONABLE APPLICATION OF APPRENDI AND ITS PROGENY, AS BESSER'S ENHANCED SENTENCE UNDER NEW YORK'S PFO STATUTE VIOLATED HIS DUE PROCESS RIGHTS A. New York's Enhanced Sentencing Scheme for Second and Persistent Felony Offenders

45 Accordingly, the Court need not decide whether Ring satisfied either ofTeague's two narrow exceptions to nonretroactivity.

46 Under the AEDPA, the ultimate question the Court faces is whether the New York Court of Appeals' decision affirming Besser's conviction involved "an unreasonable application of clearly established federal law[ ] as determined by the Supreme Court," under 28 U.S.C. § 2254(d)(1); see Besser I, 2003 WL 22093477 at *14-16. The AEDPA standard closely resembles league's "new rule" standard, as both standards look to whether a particular ruling was "dictated" by precedent at the time petitioner's conviction became final. See Williams v. Taylor, 529 U.S. 362, 379-80, 120 S.Ct. 1495, 1506 (2000) (Stevens, J.) ("It is perfectly clear that AEDPA codifies Teague to the extent thatTeague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final."); Id. at 412, 120 S.Ct. at 1523 (O'Connor, J., for the Court) ("With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute 'clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1) — The one caveat, as the statutory language makes clear, is that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence."); O'Brien v. Dubois, 145 F.3d 16, 23-24 (1st Cir. 1998) ("[T]he symmetry between Teague and AEDPA is not perfect. After all, section 2254(d)(1)'s precedent-limiting aspect functions more strictly than did Teague's in that it confines the set of relevant rules to those 'clearly established by the Supreme Court,' whereas Teague tolerated a broader compass. . . . Nonetheless, the general approach to habeas review exhibited by Teague and AEDPA is quite similar."), overruled on other grounds. McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002); Sims v. Stinson, 101 F. Supp.2d 187, 195 n. 4 (S.D.N.Y. 2000) ("Although an 'old rule' under Teague generally constitutes 'clearly established Federal law' under § 2254(d)(1), . . . the congruence is imperfect because the AEDPA standard restricts the relevant source of law to Supreme Court authority."), aff'd, No. 00-2479, 8 Fed. Appx. 14, 2001 WL 303750 (2d Cir. Mar. 28, 2001). Under the AEDPA, therefore, for the same reasons as discussed in text in this section as to Teague, at the time Besser's conviction became final, a reasonable judge would have harmonized Apprendi and Walton by limitingWalton to capital cases. As discussed further in the next section, the New York Court of Appeals' decisions in Rosen and Besser unreasonably applied Apprendi's clearly established requirement that sentencing facts beyond prior convictions must be determined by a jury.

As discussed briefly above (see pages 6-7), New York has four kinds of multiple felony offender sentencing statutes: second felony offender (Penal Law § 70.06), second violent felony offender (Penal Law § 70.04), persistent violent felony offender (Penal Law § 70.08), and persistent felony offender (Penal Law § 70.10).⁴⁷ See generally William C. Donnino, Practice Commentary to Penal Law Art. 70 (McKinney 1998) at 338, 341, 343-44.⁴⁸

47 Penal Law § 70.10 is quoted on page 3 fn.2 above and again on page 62 below.

48 "Only the persistent felony offender provision was part of the current Penal Law upon enactment [in 1965]; the second felony offender provision was added in 1973; and the second and persistent violent felony offender provisions were added in 1978." Willaim C. Donnino, Practice Commentary to Penal Law Art. 70, at 343.

The second, second violent, and persistent violent felony sentencing enhancements are mandatory, i.e., if the predicate felony or felonies exist the sentencing judge must impose the enhanced sentence. Penal Law §§ 70.04, 70.06, 70.08; see generally William C. Donnino, Practice Commentary to Penal Law Art. 70, at 346-47, 350-51. In contrast, enhanced sentencing under the persistent felony offender statute (Penal Law § 70.10) is discretionary. William C. Donnino, Practice Commentary to Penal Law Art. 70, at 338 ("a sentence under that [persistent felony offender] statute was and remains discretionary"). 351: see, e.g., Griffin v. Mann, 156 F.3d 288, 290-91 (2d Cir. 1998) ("Sentencing as a persistent felony offender is . . . discretionary. By contrast, [Penal Law] Section 70.06(2) [second felony offender] imposes mandatory sentences if at least one predicate felony . . . exists."); Id. at 292 ("[P]ersistent felony offender sentencing is discretionary, while second felony offender sentencing is mandatory."); Sailor v. Scully, 836 F.2d 118, 120-21 (2d Cir. 1987) ("[E]ven where the findings required for sentencing as a persistent felony offender have been made, the court retains discretion whether to impose the enhanced sentence authorized for a persistent felony offender, N.Y. Penal L. § 70.10(2); N.Y. Crim. Proc. L. § 400.20(9) (court 'may' sentence), whereas upon a finding that the defendant is a second felony offender, the court 'must' impose the enhanced sentence authorized for a second felony offender . . . ") (fh. omitted), cert. denied, 486 U.S. 1025, 108 S.Ct. 2002 (1988); People v. Cephas, No. 5473/01, 2003 WL 21783355 at *1 (Sup.Ct. N.Y. Co. May 23, 2003) ("The persistent violent felony offender (often referred to as a 'mandatory persistent') felon and the persistent felony offender (often referred to as a 'discretionary persistent' felon).")⁴⁹ B. Besser's Sentence

49 There are other differences in the enhanced sentencing statutes, not relevant to this case. See, e.g., Griffin v. Mann, 156 F.3d at 290-91; Sailor v. Scully, 836 F.2d at 119-21.

As noted above, Besser was convicted of enterprise corruption, a Class B felony. Penal Law § 460.20. Without any enhancement (i.e., for a "first" offender), the sentence for a Class B felony is an indeterminate sentence with a maximum term in the range of 3 to 25 years imprisonment and a minimum period of between one year and one third of the maximum term (i.e., 8-1/3 years).⁵⁰ Penal Law § 70.00(1)-(3).

50 Under New York law, indeterminate sentence statutes provide a minimum "period" and a maximum "term" of imprisonment. William C. Donnino, Practice Commentary to Penal Law Art. 70, at 340. "The court must fix both the minimum period and the maximum term within the boundaries set by statute." Id. On service of the minimum period (as reduced by "good time" where applicable), the inmate is eligible to be considered for parole. Id.; see also Penal Law § 70.40.

Since it is undisputed that Besser had at least one prior felony, at a minimum the trial judge was required to sentence Besser as a second felony offender under Penal Law § 70.06. See, e.g., Sailor v. Scully, 836 F.2d 118, 121 n. 2 (2d Cir. 1987) ("If the defendant is both a persistent felony offender and a second felony offender, a judge electing not to impose the sentence authorized for a persistent felony offender must impose the sentence authorized for a second felony offender."), cert. denied, 486 U.S. 1025, 108 S.Ct. 2002 (1988). The mandatory sentence for a second felony offender convicted of a Class B felony is a maximum term of 9-25 years and a minimum period of half the maximum, i.e., 4-1/2 to 12-1/2 years. Penal Law §§ 70.06(3)(b), 70.06(4)(b).⁵¹

51 See, e.g., Sailor v. Scully, 836 F.2d at 120 (For those currently convicted of a "Class B felony, the authorized punishment as a second felony offender is an indeterminate sentence with a maximum term of not less than nine and not more than twenty-five years and a minimum term of one-half the maximum term imposed. [Penal Law] § 70.06(3)(b), (4)(b)."); Delfyette v. Senkowski, 97 Civ. 5673, 2002 WL 1359730 at *1 (S.D.N.Y. June 20, 2002) ("The maximum indeterminate sentence that can be given to a second felony offender who commits a class B felony is twelve and one-half to twenty-five years."); Gonzalez v. Fischer, 01 Civ. 2177, 2002 WL 31422882 at *7 (S.D.N.Y. Feb. 26, 2002) ("The statutorily authorized sentence for a second felony-offender convicted of a class B felony is an indeterminate term of imprisonment, the maximum term of which is no less than nine years and no more than 25 years and the minimum term of which is one-half of the maximum term imposed."); Pujols v. Greiner, 98 Civ. 0373, 2001 WL 477046 at *6 (S.D.N.Y. May 4, 2001) (highest sentence for second felony offender convicted of class B felony is "an indeterminate prison term of from twelve and one-half to twenty-five years"); Beverly v. Walker, 899 F. Supp. 900, 915 (N.D.N.Y. 1995) ("petitioner was a second felony offender convicted of a class B felony, subjecting him to a maximum term of imprisonment of nine to twenty-five years,. . . and a mandatory minimum term of one-half the maximum term imposed"), aff'd, 118 F.3d 900 (2d Cir.X cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997).

Besser was sentenced, as a persistent felony offender pursuant to Penal Law § 70.10, to fifteen years to life imprisonment. (See pages 3-5 above.) Under the persistent felony offender statute, "the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony." Penal Law § 70.10(2). The sentence for a class A-1 felony is an indeterminate sentence, with a maximum term of life imprisonment (Penal Law § 70.00(2)(a)), and a minimum period in the range of 15 to 25 years. Penal Law § 70.00(2)(a), § 70.00(3)(a)(i))⁵² Besser's sentence of fifteen years to life thus was well within the persistent felony offender statutory guidelines. Therefore, Besser's adjudication as a persistent felony offender, rather than as a second felony offender, substantially increased his sentence — the maximum sentence as a second felony offender would have been 12-1/2 to 25 years and he received fifteen years to life imprisonment as a persistent felony offender.

52 See, e.g., Griffin v. Mann, 156 F.3d 288, 290 (2d Cir. 1998) ("Under Section 70.10, the minimum term is fifteen to twenty-five years while the maximum is life imprisonment."); Sailor v. Scully, 836 F.2d 118, 119-20 (2d Cir. 1987) ("The authorized punishment for a persistent felony offender is an indeterminate sentence with a minimum term of not less than fifteen nor more than twenty-five years and a required maximum term of life imprisonment."); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *11 (E.D.N.Y. May 24, 2003) ("Under New York law, where the accused has been convicted of two or more . . . prior felonies, within the meaning of N.Y. Penal Law § 70.10(1), he maybe sentenced to the term of imprisonment authorized for a class A-I felony An A-1 felony sentence carries a prison term with a minimum of between 15 and 25 years and a maximum of life. N.Y. Penal §§ 70.00(2), (3)."); Brown v. Greiner, 258 F. Supp.2d 68, 74 (E.D.N.Y. 2003) (persistent felony offender enhancement "would require the court to impose an indeterminate term with a minimum of between 15 and 25 years imprisonment and a maximum of life imprisonment."); William C. Donnino, Practice Commentary to Penal Law Art. 70, at 351 ("The authorized sentence [for a persistent felony offender] is the same as that authorized for a class A-I felony: a minimum period of imprisonment of not less than 15 nor more than 25 years, and a maximum term of life.").

C. New York's Persistent Felony Offender Statute and its Application in this Case

Besser's sentence was enhanced under New York's discretionary persistent felony offender statute, Penal Law § 70.10, which provides in pertinent part:

1. Definition of persistent felony offender.

(a) A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies. . . .

2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record.

Penal Law § 70.10 (emphasis added).

The "[p]rocedure for determining whether [a] defendant should be sentenced as a persistent felony offender" is set forth in C.P.L. § 400.20, which provides in full:

1. Applicability. The provisions of this section govern the procedure that must be followed in order to impose the persistent felony offender sentence authorized by subdivision two of section 70.10 of the penal law. Such sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest.

2. Authorization for hearing. When information available to the court prior to sentencing indicates that the defendant is a persistent felony offender, and when, in the opinion of the court, the available information shows that a persistent felony offender sentence may be warranted, the court may order a hearing to determine (a) whether the defendant is in fact a persistent felony offender, and (b) if so, whether a persistent felony offender sentence should be imposed.

3. Order directing a hearing. An order directing a hearing to determine whether the defendant should be sentenced as a persistent felony offender must be filed with the clerk of the court and must specify a date for the hearing not less than twenty days from the date the order is filed. The court must annex to and file with the order a statement setting forth the following:

(a) The dates and places of the previous convictions which render the defendant a persistent felony offender as defined in subdivision one of section 70.10 of the penal law; and

(b) The factors in the defendant's background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender.

4. Notice of hearing. Upon receipt of the order and statement of the court, the clerk of the court must send a notice of hearing to the defendant, his counsel and the district attorney. Such notice must specify the time and place of the hearing and the fact that the purpose of the hearing is to determine whether or not the defendant should be sentenced as a persistent felony offender. Each notice required to be sent hereunder must be accompanied by a copy of the statement of the court.

5. Burden and standard of proof; evidence. Upon any hearing held pursuant to this section the burden of proof is upon the people. A finding that the defendant is a persistent felony offender, as defined in subdivision one of section 70.10 of the penal law, must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to the trial of the issue of guilt. Matters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be a preponderance of the evidence.

6. Constitutionality of prior convictions. A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the Constitution of the United States may not be counted in determining whether the defendant is a persistent felony offender. The defendant may, at any time during the course of the hearing hereunder controvert an allegation with respect to such conviction in the statement of the court on the grounds that the conviction was unconstitutionally obtained. Failure to challenge the previous conviction in the manner provided herein constitutes a waiver on the part of the defendant of any allegation of unconstitutionality unless good cause be shown for such failure to make timely challenge.

7. Preliminary examination. When the defendant appears for the hearing the court must ask him whether he wishes to controvert any allegation made in the statement prepared by the court, and whether he wishes to present evidence on the issue of whether he is a persistent felony offender or on the question of his background and criminal conduct. If the defendant wishes to controvert any allegation in the statement of the court, he must specify the particular allegation or allegations he wishes to controvert. If he wishes to present evidence in his own behalf, he must specify the nature of such evidence. Uncontroverted allegations in the statement of the court are deemed evidence in the record.

8. Cases where further hearing is not required. Where the uncontroverted allegations in the statement of the court are sufficient to support a finding that the defendant is a persistent felony offender and the court is satisfied that (a) the uncontroverted allegations with respect to the defendant's background and the nature of his prior criminal conduct warrant sentencing the defendant as a persistent felony offender, and (b) the defendant either has no relevant evidence to present or the facts which could be established through the evidence offered by the defendant would not affect the court's decision, the court may enter a finding that the defendant is a persistent felony offender and sentence him in accordance with the provisions of subdivision two of section 70.10 of the penal law.

9. Cases where further hearing is required. Where the defendant controverts an allegation in the statement of the court and the uncontroverted allegations in such statement are not sufficient to support a finding that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, or where the uncontroverted allegations with respect to the defendant's history and the nature of his prior criminal conduct do not warrant sentencing him as a persistent felony offender, or where the defendant has offered to present evidence to establish facts that would affect the court's decision on the question of whether a persistent felony offender sentence is warranted, the court may fix a date for a further hearing. Such hearing shall be before the court without a jury and either party may introduce evidence with respect to the controverted allegations or any other matter relevant to the issue of whether or not the defendant should be sentenced as a persistent felony offender. 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 subdivision two of section 70.10 of the penal law.

10. Termination of hearing. At any time during the pendency of a hearing pursuant to this section, the court may, in its discretion, terminate the hearing without making any finding. In such case, unless the court recommences the proceedings and makes the necessary findings, the defendant may not be sentenced as a persistent felony offender.

C.P.L. § 400.20 (emphasis added).

D. The Constitutionality of the Persistent Felony Offender Statute Under Apprendi

The New York Court of Appeals addressed Besser's Apprendi claim with a citation to People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, cert. denied, 534 U.S. 899, 122 S.Ct. 224 (2001). See People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 (2001), discussed at pages 6-9 above. In People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 (2001), after describing theU.S. Supreme Court's Apprendi holding, the New York Court of Appeals defended New York's persistent felony offender statute from constitutional attack:

In this case . . . it was defendant's prior felony convictions — an explicitly noted exception to the general rule in Apprendi — that initially subjected defendant to enhanced sentencing.

Under New York law, to be sentenced as a persistent felony offender, the court must first conclude that defendant had previously been convicted of two or more felonies for which a sentence of over one year was imposed. Only after it has been established that defendant is a twice prior convicted felon may the sentencing court, based on the preponderance of the evidence, review "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct . . . established by any relevant evidence, not legally privileged" to determine whether actually to issue an enhanced sentence (CPL 4OO.20[5]). It is clear from the foregoing statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender. Then, the court must consider other enumerated factors to determine whether it "is of the opinion that a persistent felony offender sentence is war ranted" (CPL 4OO.20[9]). As to the latter, the sentencing court is thus only fulfilling its traditional role — giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory range (see, People v. Farrar, 52 N.Y.2d 302, 305-306, 437 N.Y.S.2d 961, 419 N.E.2d 864). Defendant had no constitutional right to a jury trial to establish the facts of his prior felony convictions (see, Apprendi. supra, 530 US, at 488, 120 S.Ct. 2348). Based on the foregoing, it is clear that there was no mode of proceedings error in this matter and, thus, any alleged error required preservation.

People v. Rosen, 96 N.Y.2d at 334-35, 728 N.Y.S.2d at 409-10 (emphasis added).

Although Rosen's holding is not entirely clear, the key appears to be the Court of Appeals' conclusion that "defendant's prior felony convictions . . . initially subjected defendant to enhanced sentencing."Id. at 334, 728 N.Y.S.2d at 408 (emphasis added); see Christopher H. Lindstrom, In the Shadow of Apprendi: People v. Rosen Reveals the Impractical Nature and Uncertain Future of Apprendi v. New Jersey, 36 Colum. J. L. Soc. Probs. 103, 117 (Fall 2002). In the Rosen Court's view, once a sentencing judge has found the prior convictions prong satisfied, the judge by that fact alone holds the power to enhance the sentence to a maximum of life imprisonment. Once the prior convictions prong has been satisfied, the "permissible statutory range" includes either the unenhanced or the enhanced sentence, and the sentencing judge has discretion to choose whether to enhance, based on the character prong factors. People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410 ("the sentencing court is thus only fulfilling its traditional role — giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory range"). Although the Rosen Court concedes that the sentencing judge "must" make fact-findings before enhancement can occur, People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410, that requirement does not alter the Rosen Court's conclusion that prior convictions alone "subject" a defendant to an enhanced sentence, Id. ("prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing")⁵³ Because, in the Rosen Court's view, prior convictions, rather than the character prong, "subject" the defendant to enhancement, the persistent felony offender statute does not violate Apprendi. Id. As noted above (page 55), Rosen appears to be an effort to shoehorn the persistent felony offender sentencing scheme into the restrictive interpretation of Apprendi proffered in Justice O'Connor's Apprendi dissent, i.e., that no due process violation lies where the statute "formally" "subjects" the defendant to an enhanced sentence even though further fact-finding by the judge is necessary before the enhancement can actually be levied.

53 The Rosen Court appears to define the word "subject" to mean "initially subject." Thus, the Rosen Court appears to assert that, although prior convictions are not sufficient for enhancement (as the judge cannot enhance absent further fact-findings), prior convictions do initially "authorize" the judge to enhance.

Another way to look at Rosen, and the way the State has argued Rosen, is that the New York Court of Appeals "re-wrote" the persistent felony offender statute in Rosen. The District Attorney's office views Rosen as interpreting Penal Law § 70.10 to provide that if a judge finds the requisite prior felonies, that alone subjects the defendant to life imprisonment (similar to the mandatory persistent violent felony offender statute), and then the judge can look at the defendant's history to discretionally reduce the sentence. The District Attorneys office wrote:

Even though the defendant is a persistent felony offender and, based on the fact of his prior convictions, eligible for the maximum life sentence, the judge nonetheless has been afforded the discretion to impose a lesser sentence if he is "of the opinion" that "extended incarceration and life-time supervision will [not] best serve the public interest." Penal Law § 70.10(2). For this reason, the Legislature gave the court the discretion to consider "the history and character of the defendant and the nature and circumstances of his criminal conduct." Penal Law § 70.10(2).

(Dkt. No. 8: State Ct. App. Br. at 105.)⁵⁴ The Court notes that the District Attorney's office turned the statute on its head and had to insert the word "not" in brackets in its quotation of Penal Law § 70.10(2) to achieve that result. If the New York legislature were to re-write the persistent felony offender statute to provide for life imprisonment for persistent offenders but with the sentencing judge allowed to reduce the sentence based on the individual defendant's history and character, there would not be an Apprendi problem, at least under current Supreme Court case-law. See Brown v. Greiner, 258 F. Supp.2d 68, 91-92 (E.D.N.Y. 2003) (Gleeson, D.J.); Christopher H. Lindstrom, In the Shadow of Apprendi: People v. Rosen Reveals the Impractical Nature and Uncertain Future of Apprendi v. New Jersey, 36 Colum. J. L. Soc. Probs. 103, 127-28 (Fall 2002). But that is not what the New York legislature enacted in Penal Law § 70.10 and C.P.L. § 400.20. Nor is it the construction given to those statutes by the New York Court of Appeals in Rosen.⁵⁵

54 See also Rosen v. Walsh, 02 Civ. 7782, 7/17/03 Hearing at 28, where the A.D.A. stated the view that the Rosen Court "essentially reframed the statute and read the second step out of it . . . in a manner that alleviated any potential Apprendi problem." Thus, the D.A.'s office argues that "[t]he enhancement is based on the recidivism status alone." (Id. at 30.)

55 Even if the Rosen Court had judicially re-drafted the statute in this way, which it did not, Besser's sentence would still be defective because the judge in sentencing Besser followed the statute, not this (potential) reinterpretation of it.

This Court agrees with Judges Gleeson and Hellerstein — the only two federal judges who have addressed the issue — and the two state court judges that have ruled on this issue, that New York's persistent felony offender statute violates due process underApprendi. See Rosen v. Walsh, 02 Civ. 7782:7/17/03 Hearing at 44-49 (Hellerstein, D.J.); Brown v. Greiner, 258 F. Supp.2d at 91-93: People v. West, No. 8529/83, N.Y.L.J., Nov. 17, 2003, at 18 (Sup.Ct. N.Y. Co. Nov. 17, 2003); Peoplev.Cephas. No. 5473/01, 2003 WL21783355 (Sup.Ct. N.Y. Co. May 23, 2003). Specifically, the Rosen Court was wrong in two respects: (1) even viewed in the "formal" terms of Justice O'Connor'sApprendi dissent, the persistent felony offender statute does not "subject" a defendant to enhancement based solely on prior convictions; and (2) even if prior convictions did initially "subject" a defendant to enhancement, the persistent felony offender statute nevertheless violates due process under Apprendi because no enhancement can occur unless the judge finds further facts by a preponderance of the evidence.

On the first point, the persistent felony offender statute clearly provides that an enhanced sentence "may not be imposed unless" the judge has both (1) found the prior required convictions, and (2) made fact findings on the record, by a preponderance of the evidence, that enhancement is "warranted" in light of defendant's character. Penal Law § 70.10(2); C.P.L. § 400.20(1).⁵⁶ Nothing in the statute justifies Rosen's statement that prior convictions "initially subject defendant to enhanced sentencing." The Penal Law deals first with prior convictions, Penal Law § 70.10(1), but only for the purpose of "defining" a persistent felony offender. The "authorization" for an enhanced sentence is contained in the second subdivision of Penal Law § 70.10, which describes both prongs as conjunctive requirements. Penal Law § 70.10(2).⁵⁷ Because the two prongs are conjunctive requirements, there is simply no basis for asserting that prior convictions "initially" subject a defendant to enhancement.

56 By contrast, the statute grants the judge absolute discretion not to enhance a sentence, either by not initiating an enhancement proceeding, C.P.L. § 400.20(2), by terminating the proceedings at any time, C.P.L. § 400.20(10), or by simply not enhancing even though both prongs of the statute have been satisfied, Penal Law § 70.10(2); C.P.L. § 400.20(9). No justification, explanation, or fact-finding is required to not enhance the sentence. Id. See also People v. Cephas, No. 5473/01, 2003 WL 21783355 at *1 n. 5 (Sup.Ct. N.Y. Co. May 23, 2003) ("The Court has found no case indicating that the decision of a Court not to proceed to hearing on a discretionary persistent sentence is reviewable. CPL § 400.20(6) also provides that where the Court has decided to proceed to a hearing, it 'may, in its discretion, terminate the hearing without making a finding.' This provides another discretionary check in favor of the defendant.").

57 At the Rosen habeas hearing before Judge Hellerstein, the State ventured even beyond the language of the Rosen decision itself, and argued that Rosen had "read" the character prong "out of the statute. (Rosen v. Walsh, 02 Civ. 7782: 7/17/03 Hearing at 28-30, 32, 35-36.) Judge Hellerstein rejected this plainly erroneous interpretation of theRosen decision. (Id. at 30-31, 35-37, 38, 45-46 (Rosen did not "redefm[e] Section 70.10 or Section 400.20 of the CPL, as the district attorney suggested").) Indeed, the Rosen Court admitted that the sentencing court "must" make fact-findings before enhancement can occur. People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410. In Brown v. Greiner. Judge Gleeson opined: "It could not be clearer that prior felony convictions are not the sole determinant of whether a defendant is sentenced as a discretionary persistent felony offender. No such sentence complies with New York law unless, in addition to finding the prior convictions, the sentencing judge makes findings of fact, after a hearing, that the defendant's history and character also warrant the enhanced sentence." 258 F. Supp.2d at 91 (citing Penal Law § 70.10(2)).

It is well settled that the highest state court's "construction of the State's own law is authoritative." Ring v. Arizona, 536 U.S. 584, 603, 122 S.Ct. 2428, 2440 (2002).⁵⁸ It is unclear, however, whether that doctrine has application here. The Rosen Court expressly conceded that in order to enhance a sentence, the sentencing court "must consider" the character prong "to determine whether" enhancement "'is warranted.'" People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410. Rosen thus effectively left unchanged the substance of how the sentencing statute works, and offered nothing but a metaphysical distinction as to when a defendant is "subject" to enhancement. Rather than a clear construction or reinterpretation of state law, the Rosen decision was just an opinion on the effect of state law on due process, which opinion this Court deems an erroneous and unreasonable application of Apprendi.⁵⁹

58 Accord, e.g., Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 1804 (1997) ("[T]he interpretation of the [state] statute by the [state's highest court] would be binding on federal courts. Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.") (citingcases); Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 2499 (1991) (Federal courts "are not free to substitute [their] own interpretations of state statutes for those of a State's courts. If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.");California v. Freeman, 488 U.S. 1311, 1313, 109 S.Ct. 854, 856 (1989) ("Interpretations of state law by a State's highest court are, of course, binding upon [the Supreme] Court. "): Mullaney v. Wilbur, 421 U.S. 684, 690-91, 95 S.Ct. 1881, 1886 (1975) (The Supreme Court "repeatedly has held that state courts are the ultimate expositors of state law,. . . and that [federal courts] are bound by [state court] constructions except in extreme circumstances not present here.");Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669 (1948) (an authoritative construction by the State's highest court "puts [appropriate] words in the statute as definitely as if it had been so amended by the legislature.").

59 Moreover, a federal court may "re-examine a state-court interpretation of state law" on "rare occasions" when it "appears to be an 'obvious subterfuge to evade consideration of a federal issue.'"Mullaney v. Wilbur, 421 U.S. at 691 n. 11, 95 S.Ct. at 1886 n. 11 (quoting Radio Station WOW. Inc. v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 1480 (1945)); accord, e.g., Bush v. Gore, 531 U.S. 98, 115, 121 S.Ct. 525, 535 (2000) ("the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required") (Rehnquist, C. J., concurring); Ponnapula v. Spitzer, 297 F.3d 172, 182 n. 2 (2d Cir. 2002) ("It is possible, of course, that a state court's interpretation of a criminal statute may be so egregious as to be fundamentally unfair and thus violate due process. Under these rare circumstances, habeas relief may be warranted. . . ."). The Court need not decide if this doctrine should be applied here.

Even if prior convictions did "initially subject" Besser to enhancement, the persistent felony offender statute nevertheless violated due process under Apprendi because no enhancement could occur absent the judge's findings of bad character. By Rosen's own admission, a sentencing judge "must" find facts — that were not submitted to a jury, and only by preponderance of the evidence — showing that enhancement is "warranted," People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410. There is no reasonable dispute that a court may not enhance a sentence without recording the requisite "character" findings of fact on the record. See Penal Law § 70.10(2) C.P.L. §§ 400.20(9) (10); Brown v. Greiner, 258 F. Supp.2d at 88-89 nn. 9-10 (collecting lower court state cases requiring that character fact-findings be set forth clearly on the record). Prior convictions, while necessary to enhancement, are notsufficient for enhancement — the sentencing judge's fact-finding as to defendant's character is equally necessary before the judge may legally enhance the sentence.

Predicating enhancement on such required fact-finding by a judge instead of a jury — no matter the label attached to it — is a clear Apprendi violation. As the Apprendi Court explained, it is irrelevant whether the required fact-finding is labeled an "element" or a "sentencing factor," as "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"Apprendi v. New Jersey, 530 U.S. at 494, 120 S.Ct. at 2365. Although Rosen described this judicial fact-finding as a mere exercise of traditional judicial discretion, People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d at 410, the Supreme Court in Apprendi expressly rejected such a labeling defense, Apprendi v. New Jersey, 530 U.S. at 494, 120 S.Ct. at 2365. In short, although prior convictions may "subject" a defendant to an enhanced sentence in the sense that the convictions are necessary to an enhanced sentence, they are not sufficient, as further fact-finding outside the record is also necessary before enhancement is allowed.⁶⁰

60 In Minnesota v. Grossman, 636 N.W.2d 545 (Minn. 2001), the Minnesota Supreme Court faced a similar situation. There, the Minnesota statute permitted the sentencing court to enhance a sentence beyond the statutory maximum only if defendant qualified as a "patterned sex offender" by satisfying the following two conditions: (1) defendant's crime involved sexual penetration with another person — which was an element of the crime found by the jury in this case; and (2) the court found certain other facts outside the trial record by a preponderance of the evidence. Id. at 549-50. The Grossman Court found an Apprendi violation, explaining:

In essence, the sentencing court's authority to [enhance defendant's sentence beyond the statutory maximum] was subject to two conditions precedent: (1) the jury had to find sexual contact or penetration; and (2) the court had to make the findings [beyond those found by the jury]. Both the finding of the jury and those of the court were necessary, but neither was sufficient. To separate the two conditions would be to disregard the text of [the statute], which places the conjunctive "and" between them.

Id. at 550.

The Supreme Court's decision in Ring effectively ends the debate. There, petitioner was "convicted of first-degree murder, for which Arizona law specifies 'death or life imprisonment' as the only sentencing options. . . ." Ring v. Arizona, 536 U.S. at 603-04, 122 S.Ct. at 2440. The State argued (as the Rosen Court held) that petitioner's death sentence "was therefore . . . within the range of punishment authorized by the jury verdict." Id. The Supreme Court disagreed:

This argument overlooks Apprendi's instruction that "the relevant inquiry is one not of form, but of effect." 530 U.S., at 494, 120 S.Ct. 2348. In effect, "the required finding [of an aggravated circumstance] expose [d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict." Ibid: see 200 Ariz., at 279, 25 P.3d, at 1151. The Arizona first-degree murder statute "authorizes a maximum penalty of death only in a formal sense," Apprendi, 530 U.S., at 541, 120 S.Ct. 2348 (O'CONNOR, J., dissenting), for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. See § 13-1105(C) ("First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by § 13-703." (emphasis added)). If Arizona prevailed on its opening argument, Apprendi would be reduced to a "meaningless and formalistic" rule of statutory drafting. See 530 U.S., at 541, 120 S.Ct. 2348 (O'CONNOR, J., dissenting).

Id. at 604, 122 S.Ct. at 2440-41.

As Judge Gleeson ably explained in Brown v. Greiner:

Rosen's conclusion that, in finding the facts (other than the fact of prior convictions) that warrant extended incarceration under the persistent felony offender statute, the sentencing court is "only fulfilling its traditional role," is wrong. The Supreme Court reached the opposite conclusion; where, as in [petitioner's] case, an enhanced statutory maximum only exists if the judge makes certain factual findings at sentencing, the judge's role is "novel," not traditional, and the "historic link between verdict and judgment" has been broken. Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348. To say, as the New York Court of Appeals has in Rosen, that those findings are analogous to "traditional" sentencing considerations elevates form over substance, for the enhanced sentence may not be imposed without them. Apprendi, 530 U.S. at 494.120 S.Ct. 2348. The question following Apprendi is whether the findings regarding the history and character of the defe ndant and the nature and circumstances of his criminal conduct exposed [petitioner] to greater punishment than that authorized by the jury's verdict. Id. Because the answer to that question is "yes," [petitioner's] sentence violated his rights under the Due Process Clause of the Fourteenth Amendment. The contrary conclusions of the New York courts violated the clear mandate of Apprendi.

New York could, consistent with Apprendi, have a sentence-enhancing provision that subjects all persons convicted of a . . . felony who have two prior felony convictions to the possibility of being sentenced as though they had been convicted of an A-1 felony [but allow downward adjustment based on the defendant's history and character]. Such a regime would be permissible because, at the moment of conviction, the defendant faced the possibility of life in prison based on the fact of his prior convictions alone.

Rosen assumes that the foregoing describes the persistent felony offender statute at issue here. But it does not: based solely on the jury's verdict finding [petitioner] guilty of criminal possession of a weapon in the third degree, the maximum sentence he could have received was seven years. This was so because, in New York, a discretionary persistent felony offender may not legally receive an enhanced sentence unless the court makes factual findings that support its "opinion" that an extended sentence is appropriate.

. . . .

To the extent Apprendi was applied at all in this case and in Rosen, it was applied not just incorrectly, but unreasonably. The rule requires that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In applying that principle, the New York courts have held that only the fact of the prior convictions — not the additional factfindings required by N.Y. Penal Law § 70.10(2) and CPL § 400.20 — enhances sentences under the persistent felony offender statute. That holding is unreasonable — it is flatly contradicted by both statutes, by New York case law, and by the procedural history of this very case.

Brown v. Greiner, 258 F. Supp.2d at 91-93. Judge Hellerstein agreed with Judge Gleeson's decision. (Rosen v. Walsh, 02 Civ. 7782, 7/17/03 Hearing at 44-45.)⁶¹

61 Judge Hellerstein further held:

Apprendi, if it means anything, has to mean that when a sentence is enhanced beyond the statutory maximum, that has been submitted to the jury in allowing the jury to find a violation of the Penal Law, the enhancement and the criteria of enhancement must itself be submitted to the jury for the jury to find beyond a reasonable doubt.

. . . .

One can't understand Apprendi unless the fact finding must be based on criteria and must be found by a jury beyond a reasonable doubt. It's clear to me that the application of Apprendi cited by the New York Court of Appeals [in Rosen] was an unreasonable application of Apprendi, and the rule of law announced by the [C]ourt of [A]ppeals for finding the way it did was contrary to the rule of Apprendi.

(Rosen v. Walsh, 02 Civ. 7782, 7/17/03 Hearing at 47-48.) See generally Christopher H. Lindstrom, In the Shadow of Apprendi: People v. Rosen Reveals the Impractical Nature and Uncertain Future of Apprendi v. New Jersey, 36 Colum. J. L. Soc. Probs. 103 (Fall 2002).

In People v. Cephas, No. 5473/01, 2003 WL 21783355 (Sup.Ct. N.Y. Co. May 23, 2003), Justice Lewis Bart Stone became the first state court judge in a published opinion to refuse to follow Rosen. Justice Stone concurred in Judge Gleeson's Brown decision (except what Judge Stone called dicta in Brown "striking down New York's discretionary persistent felony sentence for all purposes, as distinct from how it was applied in the case"). Id. at *4 n. 9. Justice Stone found that after Apprendi and also Ring. "Rosen is no longer dispositive, and that proceeding in the customary way under PL § 70.10 and CPL § 400.20 could not, unless the requisite findings were stipulated to by the defendant, under the United States Constitution, permit a valid sentence of [defendant] as a discretionary persistent felon. The Court therefore rejected the People's contention that neither Apprendi nor its progeny affect the New York process for sentencing a defendant as a discretionary persistent felon." Id. at *4.⁶²

62 Justice Stone then came up with a construction and application of the persistent felony offender statute that are "consistent with Federal Constitutional requirements," id. at 5, and using that approach, was able to find Cephas to be a persistent felony offender.

Similarly, in People v. West, No. 8529/83, N.Y.L.J., Nov. 17, 2003, at 18 (Sup.Ct. N.Y. Co. Nov. 17, 2003), Justice Bradley "agree[d] with the reasoning" of Judges Gleeson's and Hellerstein's decisions and finds that the persistent felony regime cannot withstand constitutional scrutiny."Id. Justice Bradley elaborated that the Supreme Court's Ring decision "implicitly rejected the holding of the Rosen court that the persistent felony offender required fact finding could somehow be considered to be the province of the court rather than the jury. . . . Because the highest court in the land has spoken this Court need not follow the flawed holding of Rosen." Id. Justice Bradley therefore vacated West's enhanced sentence. Id.

In this case, as noted above, Besser received a sentence that far exceeded the statutory maximum for his conviction. (See pages 60-62 above.) Further, his sentence was based on numerous facts, other than the fact of his prior convictions, that were found by the sentencing judge and were not submitted to a jury or proved beyond a reasonable doubt.⁶³ Thus, under the teaching of Apprendi. and on the particular facts of this case, Besser's due process rights were violated.

63 As noted above, Apprendi excepted prior convictions from the general rule against judicial fact-finding because of the "certainty that procedural safeguards attached to any'fact' of prior conviction."Apprendi, 530 U.S. at 488, 120 S.Ct. at 2362. Here, in assessing Besser's "character," the sentencing judge considered evidence such as Besser's numerous arrests and parole violations. (12/6/95 Order at 2, 8-14.) Such evidence, though superficially resembling prior convictions, was not adjudicated by a jury beyond a reasonable doubt, and thus lacks the strong indicia of reliability attached to convictions. See Apprendi, 430 U.S. at 496, 120 So. Ct. at 2366; see also id. at 490, 120 S.Ct. at 2362 (describing prior convictions as a "narrow exception" to the general rule); Brown v. Greiner, 258 F. Supp.2d at 92 ("That some of the facts found by the sentencing court in [petitioner's] case relate to his prior convictions does not matter [W]ith the possible exception of facts that constituted an element of the offense, even facts relating to prior convictions" are prohibited under Apprendi.)

For the reasons set forth by Judge Gleeson and the additional reasons described above, the New York Court of Appeals' decision in Besser's case was an unreasonable application of Apprendi (and also of Ring).

CONCLUSION

For the foregoing reasons, Besser's Apprendi habeas claim should be GRANTED and the state court directed to re-sentence Besser within sixty days consistent with this Report and Recommendation.⁶⁴

64 If the Court were to disagree and deny Besser's Apprendi claim, because Besser's Apprendi claim is not free of doubt, the Court should issue a certificate of appealability solely on the Apprendi claim. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 1039 (2003) (" § 2253(c) permits the issuance of a COA only where a petitioner has made a 'substantial showing of the denial of a constitutional right.'" The statute "does not require a showing that the appeal will succeed. Accordingly, a court . . . should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief."): Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 1599 (2000) (Certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (Certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further."), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 13lO, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).