Besser v. Walsh

59 Citing cases

  1. Portalatin v. Graham

    624 F.3d 69 (2d Cir. 2010)   Cited 136 times   2 Legal Analyses
    In Portalatin, the en banc court, by a vote of 9-3, vacated the previous opinion of a three judge panel (Besser v Walsh, 601 F3d 163 [2d Cir 2010]) and denied the habeas corpus petitions of three New York prisoners who claimed that their sentences under the PFO statute violated Apprendi. For present purposes, what I find most significant in Portalatin is that all 12 judges agreed on the facial constitutionality of the statute.

    In a consolidated appeal, a panel of this Court concluded that New York's persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010). A majority of judges in active service then called for this rehearing en banc.

  2. Gomez v. Lempke

    09-CV-0086 (MAT) (W.D.N.Y. Jan. 20, 2011)   Cited 2 times

    The Court denied petitioner's first motion to amend and granted petitioner's second motion to amend. (Dkt. ##30, 31). While petitioner's motions to amend were pending, the respondent filed a "Notice of Recent Decision" (Dkt. #26), requesting the Court to hold the petition in abeyance until the Second Circuit issued a decision for a petition for rehearing en banc in the case of Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010). That motion was not resolved in either the Court's Report and Recommendation or in its Decision and Order (Dkt. ##30, 31), however, a stay is unnecessary at this point in light of the Second Circuit's recent decision in Portalatin v. Graham, 624 F.3d 69, 73 (2d Cir. 2010), vacating Besser.

  3. People v. Anderson

    28 Misc. 3d 289 (N.Y. Sup. Ct. 2010)

    First, the defendant maintained he was not a mandatory violent persistent felon, subject to the enhanced sentencing provisions of Penal Law § 70.08, because he was not the same person who was convicted of the two prior violent felonies set forth in the People's persistent violent predicate felony offender statement. Secondly, the defendant argued that the provisions of Penal Law § 70.08, which would enhance his sentencing range on the basis of these two prior violent felony convictions, violated his Sixth Amendment right to a trial by an impartial jury, under the rationale of Apprendi v New Jersey ( 530 US 466) and Besser v Walsh ( 601 F3d 163 [2d Cir 2010]). Defendant contends that every fact that increases his minimum sentence, including the existence of prior violent felony convictions, must be determined before a jury.

  4. Stevens v. Miller

    676 F.3d 62 (2d Cir. 2012)   Cited 287 times
    Concluding that the state's Rule 60(b) motion was "nothing more than a late Rule 60(b) motion."

    A few days later, the district court transferred Stevens's case to the “suspense docket” and instructed Stevens's counsel to “notify the court promptly upon resolution of the [appeals pending before the Second Circuit panel].” On March 31, 2010, a panel of this Court, in a number of appeals consolidated under Besser v. Walsh, 601 F.3d 163 (2d Cir.2010), declared New York's persistent felony offender sentencing scheme unconstitutional. The next day, Stevens's counsel informed the district court of Besser and urged the court to grant Stevens's habeas petition.

  5. Stevens v. Schneiderman

    05 Civ. 10819 (LAK) (S.D.N.Y. Dec. 23, 2011)   Cited 13 times

    It is helpful to understand their varying postures. 601 F.3d 163 (2d Cir. 2010). Five cases were consolidated in this appeal: Besser v. Walsh, No. 05-4375, Washington v. Poole, No. 07-3949, Portalatin v. Graham, No. 07-1599, Morris v. Artus, No. 07-3588, and Phillips v. Artus, No. 06-3550.

  6. Thompson v. Ercole

    07-CV-3788 (CBA) (E.D.N.Y. Oct. 28, 2011)   Cited 1 times
    Explaining that task of finding prior convictions and the "who, what, when, and where of a prior conviction" belongs to judges

    Thus, Thompson's counsel did not act deficiently in failing to object on this slightly more nuanced ground. Notably, even as later case law has questioned whether other portions of New York's sentencing scheme might run afoul of the Supreme Court's decisions in Blakely and Cunningham, see Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), rev'd en banc, Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010) (under AEDPA, state courts did not unreasonably apply Blakely and Cunningham in rejecting challenges to the judicial factfinding required by the persistent felony offender provision, N.Y. Penal Law § 70.10), courts have consistently indicated that § 70.08's recidivism-based enhancement is constitutional under longstanding Supreme Court jurisprudence. See, e.g., Besser, 601 F.3d at 170 n. 5 (distinguishing § 70.08 and noting that it "requires imposition of an indeterminate sentence with a statutory maximum of life imprisonment solely upon the court's finding of qualifying predicate convictions"); Portalatin, 624 F.3d at 73-74 (same);Soto v. Conway, 565 F. Supp. 2d 429, 440 (E.D.N.Y. 2008) ("Unless and until the Supreme Court revisits Almendarez-Torres, this Court finds that § 70.08(2) continues to fit into the safe harbor for recidivism-based sentencing enhancements established by that case and reiterated in Apprendi.")

  7. Hatcher v. Heath

    10-CV-782 (JG) (E.D.N.Y. Oct. 4, 2011)   Cited 2 times

    In his reply submissions, Hatcher also alludes to the Second Circuit's decision that New York's discretionary persistent felony offender statute, N.Y. Pen. L. § 70.10, is violates the Sixth Amendment. See Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), en banc rehearing granted sub nom. Phillips v. Artus, No. 06-3350. Hatcher, however, was sentenced pursuant to the mandatory persistent violent felony offender statute, N.Y. Pen. L. § 70.08, which was not at issue in the Besser case.

  8. Seda v. Conway

    774 F. Supp. 2d 534 (W.D.N.Y. 2011)   Cited 2 times

    In April 2010, in a consolidated appeal of five § 2254 petitions, a panel of the Second Circuit concluded that New York's persistent felony offender sentencing scheme violated the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir.2010). A majority of judges in active service then called for the matter to be reheard en banc.

  9. Kairis v. Poole

    07-CV-6622 (MAT) (W.D.N.Y. Jan. 25, 2011)

    Petitioner then moved for leave to proceed in forma pauperis (Dkt.## 2, 3), an extension of time to respond and for his state court proceeding transcripts (Dkt.# 14), and for the appointment of counsel and a hearing (Dkt.# 17). Petitioner's motions were resolved by the Court at various stages in the proceedings with the exception of petitioner's motions to proceed as a poor person. On April 13, 2010, the respondent submitted a letter requesting that the Court hold the habeas petition in abeyance until the Second Circuit issued a decision for a petition for rehearing en banc in the case of Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010). Even if the Court were to consider respondent's letter as a motion to stay the proceedings, a stay is unnecessary at this point because the instant petition has become moot as a result of petitioner's death, as discussed below.

  10. Adelman v. Ercole

    08 CV 3609 (RJD) (E.D.N.Y. Aug. 12, 2010)   Cited 8 times   1 Legal Analyses
    Finding no federal question presented and denying habeas relief where petitioner alleged violation of New York criminal procedure law in his sentencing as a persistent violent felony offender

    See id. ("district courts in this circuit have routinely rejected . . . challenges to § 70.08 based on Apprendi") (quoting Francischelli v. Potter, 2007 WL 776760, at *9 (E.D.N.Y. Mar. 12, 2007) (collecting cases); see also United States v. Anglin, 284 F.3d 407, 411 (2d Cir. 2002) (enhanced sentence pursuant to 18 U.S.C. § 924(c)(1) based on prior felony conviction did not violateApprendi). The Second Circuit's recent decision in Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010), which held that New York Penal Law § 70.10 violates Apprendi because it permits a trial judge to enhance a sentence above the statutory maximum based on the defendant's history and character and nature and circumstances of his criminal conduct, does not alter the Court's conclusion. TheBesser panel noted that its decision did not address § 70.08, and that, in any event, § 70.08, unlike § 70.10, "requires imposition of an indeterminate sentence with a statutory maximum of life imprisonment solely upon the court's finding of prior felony convictions."See Antinuche v. Zon, 2010 WL 2035795, at * 11 n. 6 (E.D.N.Y. May 20, 2010) (quoting Besser, 601 F.3d at 170 n. 5 (emphasis added in Antinuche)).