Opinion
03-CV-4253 (JG).
November 23, 2004.
LEONARD McKENZIE, Five Points Correctional Facility, Romulus, New York, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Marie-Claude Wrenn, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Leonard McKenzie seeks habeas corpus relief from conviction of assault in the first degree and criminal possession of a weapon in the second degree entered after a jury trial in state court. For the reasons set forth below, the petition is denied.
BACKGROUND
The evidence at trial established that on May 14, 1999, McKenzie shot Touron Powell in a grocery store in Brooklyn. Detective Joseph Mackay was directed to the scene of the shooting, where he spoke with the store's owner, Rafael Nunez. That day, Detective Mackay took notes of this conversation in a spiral notebook, which was subsequently lost before McKenzie and his trial attorney had a chance to review it. On May 16, 1999, Detective Paul Johnson showed Powell, who survived the shooting, a photo array while he was recovering at the hospital. Powell identified McKenzie as his shooter.McKenzie was arrested on May 27, 1999 and charged with attempted murder in the second degree, assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree. That same day, Nunez identified McKenzie as the shooter in a lineup.
At trial, Nunez testified that McKenzie had frequented his grocery store during the previous month, although he did not know McKenzie's name. He testified that Powell and McKenzie entered the store, and were arguing briefly before the shooting. Nunez identified McKenzie as the shooter. Powell also testified at trial. He stated that McKenzie closely resembled the shooter, and that McKenzie had the same scar in the same place as the shooter. He did not specifically identify McKenzie.
On March 8, 2000, the jury found McKenzie guilty of first degree assault and second degree weapon possession, and on March 27, 2000, McKenzie was sentenced as a persistent violent felony offender, pursuant to N.Y. Penal Law § 70.08. He was sentenced to a 25-year to life term of imprisonment on each count, to run concurrently. McKenzie appealed this conviction to the Appellate Division, Second Department in November of 2000.
On July 20, 2000, McKenzie moved to vacate his judgment of conviction under N.Y. Crim. Proc. Law § 440.10 on the grounds that the state's failure to provide him with certain material denied him a fair trial. See Brady v. Maryland, 373 U.S. 83 (1983); People v. Rosario, 9 N.Y.2d 286, 289 (1961), cert. denied, 368 U.S. 866 (1961). McKenzie's motion was denied because the court found that there were sufficient facts on the record of the trial court to permit adequate review of McKenzie's by the Appellate Division, Second Department, on direct appeal from the conviction. People v. McKenzie, Indictment No. 4349/99 at 3 (Sup.Ct. Kings County Oct. 27, 2000). McKenzie sought leave to appeal the decision, which was denied on January 29, 2001. People v. McKenzie, No. 2000-10447 (2d Dep't Jan. 29, 2001).
In his direct appeal, McKenzie argued that (1) the evidence was insufficient to establish guilt beyond a reasonable doubt; (2) his due process rights were violated by the trial court's ruling under People v. Sandoval, 34 N.Y.2d 371 (1974); (3) his right to effective assistance of counsel was violated by his trial counsel's failure to seek a remedy for the prosecution's failure to produce Detective Mackay's spiral notebook in violation of People v. Rosario, 9 N.Y.2d 286, 289 (1961), cert. denied, 368 U.S. 866 (1961), and Brady v. Maryland, 373 U.S. 83 (1963), and trial counsel's failure to present a sufficient summation; (4) his right to a jury trial, as articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), was violated by the enhancement of his sentence as a persistent violent felony offender, N.Y. Penal Law § 70.08; and (5) his sentence was unduly harsh and excessive. The Appellate Division affirmed the judgment. The state court held that "the evidence . . . was legally sufficient to establish the defendant's guilt beyond a reasonable doubt" and that "the verdict of guilt was not against the weight of the evidence." 751 N.Y.S.2d 384 (2d Dep't 2002) (citations omitted). The Appellate Division also held that McKenzie's Apprendi argument was "unpreserved for review and, in any event, without merit." Id. (citing to People v. Rosen, 96 N.Y.2d 329, 335 (2001), cert. denied, 534 U.S. 899 (2001)). Furthermore, it held that "the sentence imposed was not excessive," and that McKenzie's "remaining contentions are without merit." Id. McKenzie requested leave to appeal on all grounds, except for the claim that his sentence was harsh and excessive. Leave to appeal was denied on November 21, 2002. People v. McKenzie, 99 N.Y.2d 537 (2002).
In the instant petition, filed on August 25, 2003, McKenzie claims that (1) the government failed to prove his guilt beyond a reasonable doubt; (2) his Sandoval motion was incorrectly decided; (3) he was denied due process by the prosecution's failure to provide Detective Mackay's spiral notebook; (4) his trial counsel was ineffective in failing to provide a meaningful summation and in failing to sufficiently pursue his Rosario and Brady claims; (5) his Apprendi claim was wrongfully rejected; and (6) his sentence was harsh and excessive.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
Habeas relief is also warranted where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). That subsection is not relevant here.
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations. Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. McKenzie's Claim of Insufficiency of Evidence
McKenzie argues that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. McKenzie bears a "very heavy burden" on this claim. See Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (quotation marks omitted); see also Ponnapula, 297 F.3d at 179 ("[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, the court may not "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326). Additionally, challenges to the weight of the evidence supporting a conviction are not cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
The government presented the testimony of Nunez, who was familiar with McKenzie and was an eyewitness to the shooting. Nunez testified that McKenzie was a regular customer at his store, that his attention was drawn to McKenzie and Powell because they were arguing, and that McKenzie pulled out a gun and shot Powell. He made an in-court identification of McKenzie as the shooter.
McKenzie now asks me to reevaluate the credibility of Nunez. As discussed above, I cannot do so. See Fagon, 717 F. Supp. at 979 (citing Zabare, 871 F.2d at 286). The jury evaluated Nunez's credibility at trial; I must presume that the jury resolved any credibility issues in favor of the prosecution, and I defer to that resolution. Wheel, 34 F.3d at 66. Nunez's possible shortfalls as a witness, including his alleged inability to provide the police with descriptive information immediately after the shooting, were considered by the jury. I cannot properly disturb the jury's decision to credit this testimony.
Based on the evidence in the record, and resolving all conflicting inferences in favor of the prosecution, I find that a rational jury could have found McKenzie guilty of assault in the first degree and criminal possession of a weapon in the second degree beyond a reasonable doubt. The conclusion of the Appellate Division, that "the evidence . . . was legally sufficient to establish the defendant's guilt beyond a reasonable doubt" and "the verdict of guilt was not against the weight of the evidence," People v. McKenzie, 751 N.Y.S.2d 384 (2d Dep't 2002) (citations omitted), was neither contrary to nor an unreasonable application of federal law.
C. McKenzie's Claim that the Trial Court's Sandoval Ruling Was Improper
1. Legal Standard
In a Sandoval hearing "the trial judge makes a determination as to whether any prior convictions or proof of any prior commissions of specific uncharged crimes or bad acts may be admitted into evidence at a criminal trial." Mercer v. Herbert, 133 F. Supp.2d 219, 231 n. 14 (W.D.N.Y. 2001) (citing People v. Sandoval, 34 N.Y.2d 371 (1974)). Although based in state law, a Sandoval violation addresses an evidentiary question and, thus, may present an issue for habeas relief. However, the petitioner must establish that the trial court committed error that constitutes a deprivation of a constitutionally recognized right. See Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988); Rojas v. Senkowski, No. 95 Civ 1866, 1996 WL 449321, *3 (E.D.N.Y. July 29, 1996) ("The decision to admit prior convictions . . . [is] not redressable in a federal habeas corpus proceeding absent a showing that the particular errors were of constitutional magnitude." (quotation marks omitted)). In order for an evidentiary error to be cognizable on habeas review, the error must cause "actual prejudice" to the petitioner by having a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
Finally, and most importantly here,
[I]t is well-settled that a petitioner's failure to testify is fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling because in the absence of such testimony the Court has no adequate non-speculative basis upon which to assess the merits of that claim . . .Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991), aff'd, 940 F.2d 649 (2d Cir. 1991); see also Luce v. United States, 469 U.S. 38, 41-42 (1984). In other words, habeas relief is never warranted if the petitioner decided not to testify, regardless of the fact that the trial court's Sandoval ruling may have motivated petitioner's decision.
2. Application to McKenzie
McKenzie's trial counsel requested a Sandoval ruling to determine the admissibility of prior criminal convictions if McKenzie decided to testify during the trial. McKenzie had five felony convictions and four misdemeanor convictions. At the end of the Sandoval hearing, the trial court held that cross-examination by the prosecution would not be permitted as to any of the four misdemeanor charges or as to one felony narcotics conviction. The trial court permitted cross-examination with respect to the other four felony charges: two attempted robbery convictions, a conviction for assault in the second degree and a narcotics sale charge. The court stated:
A limited inquiry concerning the underlying facts will be permitted as to each, except for the assault charge — conviction, rather, in 1994. As to that, only the fact of the assault and not that someone was shot, and, of course, the sentence in each instance.
(Pretrial Hr'g Tr. 109.)
In the end, McKenzie chose not to testify. This decision precludes any possiblity of habeas relief based on his Sandoval claim. Thus, it was neither contrary to nor an unreasonable application of federal law for the Appellate Division to hold that this contention was without merit.
D. McKenzie's Claim Based on the Failure to Produce Detective Mackay's Notebook
1. The Legal Standard
In a criminal prosecution, the government has a constitutional obligation to disclose material, exculpatory evidence to the defendant. See Giglio v. United States, 405 U.S. 150, 153-54 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Exculpatory evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quotation marks omitted). To merit relief, the nondisclosure must "undermine confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quotation marks omitted). The "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming that state protective-service agency files could be Brady material).
For purposes of the government's responsibilities under Brady, the Supreme Court draws no distinction between impeachment evidence and exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. Such evidence is `evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (citations omitted) (quoting Brady, 373 U.S. at 87)).
Under New York law, the prior statements of a witness must also be disclosed. In People v. Rosario, the Court of Appeals held that defendants are entitled to "examine a witness' prior statement, whether or not it varies from his testimony on the stand." 9 N.Y.2d 286, 289 (1961), cert. denied, 368 U.S. 866 (1961).
2. Application to McKenzie
McKenzie claims that the government violated Brady and Rosario by failing to provide him with Detective Mackay's notebook because it "might very well" have provided evidence that exonerated him. (Def.'s App. Br. at 45.) The notebook allegedly contained entries related to the identification of the shooter. ( Id.) Respondent argues that McKenzie's claim is procedurally barred from habeas review because he did not exhaust the claim on direct review. I need not decide the exhaustion issue here because there is no merit to McKenzie's claim.
In denying McKenzie's § 440.10 motion, the court described the possible relevance of the notebook:
At defendant's pretrial hearing Detective Mackay testified that he spoke with the store owner and wrote in his spiral notebook the store owner's pedigree information and whether or not he was a witness. At trial the store owner, Mr. Nunez, testified that he told Detective Mackay what happened, but did not remember whether the detective was taking notes at that time. He also told the detective that the perpetrator was a male Black.
As noted above, Detective Mackay also testified at the pretrial hearing that the spiral notebook contained notes of his conversation with one of the Emergency Service Medical personnel at the crime scene. However, according to the detective's testimony the substance of that interview was also recorded in a New York City Police Department Detective Division report which was turned over to the defense. According to the detective's hearing testimony, his spiral notebook entry contained notes of the Emergency Medical Services worker's evaluation of the condition (of the victim) and a statement as to what took place when the Emergency Medical Service worker arrived at the scene of the shooting. . . . [C]ounsel for the defendant demanded that Detective Mackay's spiral notebook be produced. However, after searching for the spiral notebook Detective Mackay reported to court and counsel that the spiral notebook had been inadvertently lost and could not be located.People v. McKenzie, Indictment No. 4349/99 at 2-3 (Sup.Ct. Kings County Oct. 27, 2000).
McKenzie makes no showing that either Detective Mackay wrote a description of the shooter in the notebook, or that the description given by Nunez at the scene was inaccurate or contradictory to his testimony at trial. More importantly, Nunez testified that he knew McKenzie as a regular customer. Thus, his in-court identification was based not only on the lineup, but also on his prior exposure to McKenzie.
Based on these facts, the prejudice claimed by McKenzie is purely speculative. The information in the notebook would have at best required Nunez to explain why he did not tell the detective that he recognized McKenzie as a regular customer. (It is reasonable to think that Nunez, who did not know McKenzie's name, did not believe that his status as a regular was relevant at the time). Therefore, no reasonable possibility exists that the outcome of the proceeding would have been different had McKenzie been provided with the detective's notebook.
McKenzie's claims that are predicated solely on Rosario are not cognizable on habeas review because, under AEDPA, I may
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a).
D. McKenzie's Claim of Ineffective Assistance of Trial Counsel
1. The Legal Standard
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to support an ineffective assistance of counsel claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a contextdependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
2. Application of the Standard
a. Failure to Seek Remedy for Rosario and Brady Violations
McKenzie claims that his trial counsel's failure to seek any sanction when the prosecution did not produce Detective Mackay's spiral notebook, which he claims "could have contained critical impeachment material," deprived McKenzie of meaningful representation under Strickland. (Def.'s App. Br. at 44-45.) I disagree.
McKenzie's trial counsel did demand that the notebook be produced. People v. McKenzie, Indictment No. 4349/99 at 3 (Sup.Ct. Kings County Oct. 27, 2000). Detective Mackay, after searching for it, reported to the court that it had been inadvertently lost. Id. I cannot say that trial counsel's decision not to seek sanctions when the detective reported its loss was unreasonable under prevailing professional norms. Moreover, McKenzie cannot show with reasonable probability that the notebook would have been outcome determinative. He makes no showing that the Detective Mackay actually wrote down Nunez's initial description of the shooter, or, if such description was given by Nunez, that it was inaccurate. In fact, the detective testified that he would have recorded only "pedigree information and whether or not [Nunez] was a witness" in the notebook, specifically stating that he did not interview Nunez at all. (Pretrial Hr'g Tr. 53-54.)
b. Trial Counsel's Summation
McKenzie claims that his trial counsel's failure to develop any coherent defense strategy or theory of the case rendered him ineffective under Strickland. I disagree. McKenzie was charged with attempted murder in the second degree. His trial counsel argued that the shooter in this case could not have had the specific intent required to be guilty of that charge. He also argued at length the credibility of Nunez, the prosecution's sole identifying witness, as well as the inconsistencies in the testimony of the complainant. Finally, counsel argued that the lineup presented to Nunez was suggestive, creating reasonable doubt. Each of those was a coherent argument based on the facts of the case.
Moreover, there is no reasonable probability that the result of the trial would have been different if McKenzie's trial counsel had given different reasons why Nunez was not a credible witness, as suggested by McKenzie. (Def.'s App. Br. at 48.)
In sum, the state court's rejection of McKenzie's claim of ineffective assistance of trial counsel was neither contrary to nor an unreasonable application of Strickland.
E. McKenzie's Apprendi Claim
McKenzie claims that his sentence as a persistent felony offender under New York Penal Law § 70.08 was based on a factual finding by the court, rather than a jury, violating his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The state court held that this claim is without merit. The law on this issue is clear, and the state court was correct.
New York Penal Law § 70.08 defines a persistent violent felony offender on the basis of prior violent felony convictions. Id. at § 70.08(1)(a) ("A persistent violent felony offender is a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions. . . ."). The trial judge has no discretion with respect to the application of the minimum and maximum sentences. Based on a designation as a violent felony offender, the court must impose an indeterminate sentence, the maximum of which must be life imprisonment. Id. at § 70.08(2). The minimum is fixed based on the class of felony committed. Id. In essence, classification as a persistent violent felony offender is based solely on prior convictions of violent felonies.
The Supreme Court has 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, 530 U.S. at 490 (emphasis added); see also Almendarez-Torres v. United States, 523 U.S. 224, 246-47 (1998) (holding that treatment of recidivism as a sentencing factor does not violate due process and is not otherwise unconstitutional). Section 70.08 clearly falls within the safe harbor created by Almendarez-Torres and Apprendi for sentence enhancements based solely on prior convictions. Thus, the state court's ruling rejecting the Apprendi claim was neither contrary to nor an unreasonable application of federal law.
Moreover, in addressing a claim under 28 U.S.C. § 2255, which provides for collateral challenges to federal custody, the Second Circuit has held that "the law is clear that Apprendi cannot be applied retroactively on a collateral challenge to a conviction." Burrell v. United States, 384 F.3d 22, 26 n. 5 (2d Cir. 2004) (citing Coleman v. United States, 329 F.3d 77, 88-90 (2d Cir. 2003), and Schriro v. Summerlin, 124 S.Ct. 2519, 2523-24 (2004)). Other courts have reached the same conclusion with respect to petitions under 28 U.S.C. § 2254. See, e.g., Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002), cert. denied, 537 U.S. 1214 (2003); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001), cert. denied, 535 U.S. 1104 (2002). There is no logical distinction between § 2254 relief and § 2255 relief that would warrant differing rules in state and federal contexts.
F. McKenzie's Claim that his Sentence was Excessive
McKenzie claims that his sentence, a 25-year to life term of imprisonment, is harsh and excessive. This claim is without merit. McKenzie's sentence falls within the maximum sentence authorized by New York law given his status as a persistent violent felony offender, and therefore does not qualify for consideration as excessive under the Eighth Amendment. N.Y. Penal Law § 70.10; see White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." (citations omitted)). I also note that McKenzie's sentence is not grossly disproportionate, given the seriousness of the crime and his criminal history, and is therefore constitutional. See Ewing v. California, 538 U.S. 11 (2003).
CONCLUSION
For the foregoing reasons, the petition is denied. As McKenzie has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.