Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).