West v. Breslin
Appeal Court of Appeals for the Second Circuit, Case No. 08-0274

Tags No tags have been applied so far. Sign in to add some.
Request Update Request UpdateSpaceE-Mail Alert Get E-Mail Alerts

  Text Tab Overlap Citations (163) Tab Overlap Cited By (1) Right End
08-0274-pr

West v. Breslin
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 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 February, two thousand eleven. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 PETER W. HALL, 9 RAYMOND J. LOHIER, Jr., 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 OLIVER GIOLA WEST, JR., 14 15 Petitioner-Appellant, 16 17 -v.- 08-0274-pr 18 19 SUPERINTENDENT DENNIS BRESLIN, 20 21 Respondent-Appellee. 22 - - - - - - - - - - - - - - - - - - - -X 23 24 FOR APPELLANT: Jan Hoth 25 (Robert S. Dean, on brief) 26 Center for Appellate Litigation 27 New York, NY [End Page 1] 1 2 FOR APPELLEE: Mark Dwyer 3 Malancha Chanda 4 (Robert M. Morgenthau, on brief) 5 District Attorney Office, New York County 6 New York, NY 7 8 Appeal from the denial of an application for a writ of 9 habeas corpus by the United States District Court for the 10 Southern District of New York (Castel, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 13 AND DECREED that the district court's denial of Appellant's 14 application for a writ of habeas corpus is AFFIRMED. 15 16 Appellant Oliver West, Jr. was convicted by a New York 17 state court jury of Rape in the First Degree and Sodomy in 18 the First Degree. He was sentenced as a "persistent felony 19 offender" under Section 70.10 of New York Penal Law to two 20 concurrent terms of fifteen years to life in prison. West 21 appeals the denial of his application for a writ of habeas 22 corpus, arguing that New York's persistent felony offender 23 statute violates his constitutional due process and jury 24 rights. We assume the parties' familiarity with the 25 underlying facts, the procedural history, and the issues 26 presented for review. 27 28 We review de novo a district court's denial of a habeas 29 petition. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 30 2010). We may grant a writ of habeas corpus on a claim that 31 has been previously adjudicated on the merits by a state 32 court only if the state court's adjudication: (1) "resulted 33 in a decision that was contrary to, or involved an 34 unreasonable application of, clearly established Federal 35 law, as determined by the Supreme Court of the United 36 States"; or (2) "resulted in a decision that was based on an 37 unreasonable determination of the facts in light of the 38 evidence presented in the State court proceeding." 28 39 U.S.C. § 2254(d); Jones v. West, 555 F.3d 90, 96 (2d Cir. 40 2009). 41 42 West's sole argument on appeal is that New York's 43 persistent felony offender statute, N.Y. Penal Law § 70.10, 44 violates clearly established federal law by infringing on 45 his constitutional due process and jury rights as outlined 46 by the U.S. Supreme Court in Apprendi v. New Jersey, 530 47 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), [End Page 2] 1 Blakely v. Washington, 542 U.S. 296 (2004), United States v. 2 Booker, 543 U.S. 220 (2005), and Cunningham v. California, 3 549 U.S. 270 (2007). In Portalatin v. Graham, 624 F.3d 69 4 (2d Cir. 2010) (in banc), we held that New York's persistent 5 felony offender statute did not violate clearly established 6 federal law as determined by the U.S. Supreme Court. 7 Specifically, we held that New York's persistent felony 8 offender statute was consistent with the U.S. Supreme 9 Court's holdings in Apprendi, Ring, Blakely, Booker, and 10 Cunningham. Id. at 93-94. Therefore, West's petition is 11 without merit. 12 13 We hereby AFFIRM the district court's denial of West's 14 application for a writ of habeas corpus. 15 16 17 FOR THE COURT: 18 CATHERINE O'HAGAN WOLFE, CLERK 19

[End Page 3]

Space Space

Statistics

This case has been viewed 250 times.

No comments have been added yet. Sign in to post a comment.
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 
PlainSite
Sign Up
Need Password Help?