Opinion
No. 07-0223-pr.
March 5, 2009.
Appeal from the United States District Court for the Northern District of New York (Norman A. Mordue, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on September 25, 2006, is AFFIRMED.
APPEARING FOR APPELLANT: SALLY WASSERMAN, New York, New York.
APPEARING FOR APPELLEE: PRISCILLA STEWARD (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy Solicitor General; and Malancha Chanda, Assistant Attorney General, on the brief), for Andrew M. Cuomo, New York, New York.
Petitioner Robert Stokes appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This Court granted a certificate of appealability on the sole issue of whether Stokes's sentence under the New York persistent felony offender statute violated his Sixth Amendment right to a jury trial pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2002), and Ring v. Arizona, 536 U.S. 584 (2002). See Order, Stokes v. Girdich, No. 07-0223-pr (2d Cir. Jun. 15, 2007). We review a district court's denial of § 2254 relief de novo. See Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). In doing so, we assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Stokes argues that the state courts' rejection of his Sixth Amendment challenge to New York's persistent felony offender statute, N.Y. Penal Law § 70.10, is contrary to and an unreasonable application of the rule set forth inApprendi as clarified by Ring. Insofar as his argument is procedurally cognizable in these proceedings, he argues specifically that "the State decisions by which the Petitioner was denied relief represent an unreasonable application of the Apprendi rule." Appellant's Br. at 20; see 28 U.S.C. § 2254(d)(1). Petitioner's argument, however, is foreclosed by our decision in Brown v. Miller, 451 F.3d 54 (2d Cir. 2006), which distinguished the statutes involved inApprendi and Ring, requiring the sentencing court to find some "specified fact" other than a prior felony conviction before imposing an enhanced sentence, from the "more general assessment required by the New York [persistent felony offender] statute" at issue in this case. Id. at 59. In making this distinction, we reaffirmed our prior holding inBrown v. Greiner, 409 F.3d 523 (2d Cir. 2005), that it was reasonable for the New York Court of Appeals to conclude that the fact-finding necessary to the imposition of an enhanced persistent felony offender sentence is excluded from theApprendi rule. Id. at 535.
Stokes invites us to reexamine our decisions in Brown v. Greiner and Brown v. Miller. The law is clear, however, that "one panel of this Court cannot overrule a prior decision of another panel, unless there has been an intervening Supreme Court decision that casts doubt on this Court's controlling precedent, or unless an en banc panel of this Court overrules the prior decision." Consub Delaware LLC v. Schahin Engenharia Limitada, 543 F.3d 104, 109 (2d Cir. 2008) (internal quotations marks, citations, and edits omitted). Neither of these circumstances is here present.
Accordingly, we AFFIRM the judgment of the district court.