In December 2010 I wrote about the en banc decision of the Second Department in Portalatin v. Graham (624 F3d 69 [2d Cir 10/18/10])and the companion cases holding that the New York's decision 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." (here)
In that post, I also reviewed the decision of the New York Court of Appeals in People v Battles (16 NY3d 54 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, I suggested that Battles provided a glimmer of hope becauseChief 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 ) "and our persistent felony offender sentencing statutes." I wrotw that 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'm writing now to report that on March 21, 2011 the United States Supreme Court denied petitions for certiorari in Portalatin v. Graham and the companion cases, challenging the constitutionality of New York's Persistent Felony Offender sentencing law in the context of habeas corpus proceedings. However, review of the constitutionality of New York's Persistent Felony Offender sentencing law is still being sought in the certiorari petition filed on March 10, 2011 in the direct appeal in People v Battles