Washington v. Graham ( 2009 )

07-5023-pr
Washington v. Graham
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of December, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 Circuit Judge,
10 J. GARVAN MURTHA,
11 District Judge. *
12
13 - - - - - - - - - - - - - - - - - - - -X
14 JONNY WASHINGTON,
15 Petitioner-Appellant,
16
17 -v.- 07-5023-pr
18
19 HAROLD D. GRAHAM, Superintendent,
20 Respondent-Appellee.
*
J. Garvan Murtha, Senior District Judge of the United
States District Court for the District of Vermont, sitting
by designation.
1
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2
3 APPEARING FOR APPELLANT: MONICA R. JACOBSON, New York,
4 New York.
5
6 APPEARING FOR APPELLEES: ASHLYN DANNELLY (Andrew Cuomo,
7 Barbara D. Underwood, Roseann B.
8 MacKechnie, and Ashlyn Dannelly,
9 on the brief), Office of the
10 Attorney General of the State of
11 New York, Albany, New York.
12
13 Appeal from a judgment of the United States District
14 Court for the Eastern District of New York (Cogan, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19
20 Jonny Washington petitions this Court for a writ of
21 habeas corpus on the ground that his sentence in a New York
22 State Supreme Court violated Apprendi v. New Jersey, 530
23 U.S. 466 (2000). We assume the parties’ familiarity with
24 the underlying facts, the procedural history, and the issues
25 presented for review.
26
27 Washington was sentenced under New York’s persistent
28 violent felony offender statute. See N.Y. Penal Law
29 § 70.08(1)(a). That statute provides for an enhanced
30 sentence if the defendant was convicted of two or more
31 prior violent felonies within ten years of the commission of
32 the instant offense, though that ten-year period is tolled
33 by any period of incarceration. Id. § 70.04(b)(iv), (v).
34 Only the court--not a jury--can determine whether the
35 requirements for an enhanced sentence are met. N.Y. Crim.
36 Proc. Law §§ 400.16(2), 400.15(7)(a).
37
38 Washington contends that this regime violates Apprendi,
39 which held that “any fact that increases the penalty for a
40 crime beyond the prescribed statutory maximum must be
41 submitted to a jury, and proved beyond a reasonable doubt.”
42 530 U.S. at 490. But Apprendi exempts from this requirement
43 “the fact of a prior conviction.” Id. The question
44 presented by the petitioner is whether Apprendi’s prior
45 conviction exception permits a sentencing court to conduct
46 the tolling analysis required by the statute.
2
1 We need not decide that question. We can grant habeas
2 relief only if the state court proceedings “resulted in a
3 decision that was contrary to, or involved an unreasonable
4 application of, clearly established Federal law, as
5 determined by the Supreme Court of the United States.” 28
6 U.S.C. § 2254(d)(1). Applying that standard, we must deny
7 relief. Cf. United States v. Santiago, 268 F.3d 151, 153,
8 156 (2d Cir. 2001) (holding that a district court’s finding
9 that prior convictions occurred on separate occasions falls
10 within the prior conviction exception); id. at 156
11 (explaining that the prior conviction exception includes
12 within its scope the “who, what, when, and where” of a prior
13 conviction); see also United States v. Fagans, 406 F.3d 138,
14 141-42 (2d Cir. 2005).
15
16 Finding no merit in Washington’s remaining arguments,
17 we hereby AFFIRM the judgment of the district court.
18
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22 By:
23
24
25
26 ___________________________
3