Barney v. Conway (730 F. Supp. 2d 264, 2010)

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. BACKGROUND

Pro se petitioner Steven Barney (“Barney” or “petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Barney originally was charged on September 25, 1998, in Erie County in a two-count indictment with second degree (intentional) murder and third degree criminal possession of a weapon based upon allegations that he stabbed Ronald Hardy to death with a knife in the entrance area of an apartment complex in the City of Buffalo. At trial which, commenced on February 8, 1999, and concluded on February 26, 1999, trial counsel for Barney presented a theory of justification (self-defense). The jury agreed, acquitting Barney of the murder charge. However, the jury found Barney guilty of the weapons-possession charge, a class D felony. Following a predicate felony hearing under New York Criminal Procedure Law (“C.P.L.”) 400.20, the trial court adjudicated Barney as a persistent felony offender and imposed an indeterminate sentence of 15 years to life.

"While the instant habeas petition was pending in this Court, Barney filed a pleading in Erie County Court denominated as a “Motion Pusuant [sic] to C.P.L. Section 440.30[sic] to Set Aside Sentence and to Vacate Judgment.” Barney stated that his motion was based upon the following grounds: (1) “[b]y virtue of the jury acquitting the defendant of Intentional Murder, finding that the defendant was JUSTIFIED, the remaining count of Criminal Possession of a Weapon in the 3rd Degree, 265.01(2), under the People’s theory to the Grand Jury and embodied in the Bill of Particulars, was JURISDIC-TÍONALLY DEFECTIVE”, and (2) “Improper and Prejudicial conduct on the part of the trial court and sentencing court not appearing on the record operated to deny the defendant his Constitutional Right to a fair trial, when” (a) the “Trial court communicated Ex Parte with the Prosecution and the District Attorney, without informing the defense of such communication”; (b) the trial court “unfairly predetermined the defendant to be a Persistent Felony Offender, prior to the start of the hearing designed to make such a determination”; (c) the trial court “unfairly used the charge the jury acquitted the defendant of, in it’s [sic] determination to sentence the defendant to 15 years to life for the Criminal Possession of a Weapon in the 3rd Degree count”; and (d) the ‘Wery Fact that the determination made by the court to determine that the defendant was a Persistent Felony Offender was in violation of the defendant’s U.S. Constitutional Right to Due Process.” See Petitioner’s Notice of C.P.L. §§ 440.10/440.20 Motion at pp. 1-2; see also Petitioner’s Memorandum of Law in Support of C.P.L. §§ 440.10/440.20 Motion at pp. 16-19.

Barney’s supporting affidavit reiterated his claim of self-defense. He also stated that when his appellate counsel sent him a copy of the appellate brief submitted on his behalf, he learned for the first time that “a juror named Judy Owen wrote Pat Carrington, the Prosecutor ... a letter ... and that the letter was sent to the judge ... back in March 1999, right after [he] was convicted of the Weapon charge.” Petitioner’s Affidavit at p. 4. He discovered at that time that “the judge wrote Frank Clark, the Erie County District Attorney and spoke about [his] case and How [he] won the Battle but lost the War.” Id.

At the same time he filed his motion to vacate in July 2005, Barney also submitted a memorandum of law in support of a motion to have the judge recuse herself. See Petitioner’s Memorandum in Support of Motion for Recusal dated July 17, 2005.

The prosecution filed an Opposing Affidavit noting that Barney was seeking recusal of the sentencing judge from ruling on his motion and vacatur of his conviction and sentence on the grounds that (1) his conviction of third degree criminal possession of a weapon is repugnant to his acquittal of second degree (intentional) murder; (2) that the trial court pre-determined his status as a persistent felony offender prior to conducting a hearing; and (3) he was improperly sentenced as a persistent felony offender in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh’g denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004). See People’s Opposing Affidavit, at p. 2, ¶ 6.

Judge DiTullio issued a written decision and order denying the C.P.L. §§ 440.10/440.20 Motion and the Motion for Recusal on August 11, 2005. The Appellate Division denied leave to appeal.

II. APPLICABLE LEGAL PRINCIPLES

A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

Federal habeas review is available for a state prisoner “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). Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus, to be entitled to habeas relief, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. Id. at 68, 112 S.Ct. 475.

A petition for writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in the state courts unless the state court’s adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). For a claim to be adjudicated “on the merits” within the meaning of 28 U.S.C. § 2254(d), the state court must base its decision on “the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001). It is not necessary for the state court to refer to the federal aspect of a claim or to any federal law for the deferential standard to apply. Id. at 312. A state court determination of a factual issue is “presumed to be correct” and the petitioner bears the burden of rebutting that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court held that a state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent or “if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives” at a different result. 529 U.S. at 405-06, 120 S.Ct. 1495. Williams also held that habeas relief is available under the “unreasonable application” clause “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Rather, the state court’s application must have been “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495.

III. DISCUSSION

A. Racial Discrimination By the Prosecutor During Jury Selection

Barney argues that the prosecutor’s use of a peremptory challenge to strike Gloria Eccles, an African-American juror, violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), recognizing that “[exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure,” the Supreme Court held that the guarantees of the Equal Protection Clause apply to the exercise of peremptory strikes. 476 U.S. at 89, 106 S.Ct. 1712. Therefore, a state prosecutor may not “challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Id.; accord, Purkett v. Elem, 514 U.S. at 767, 115 S.Ct. 1769; Hernandez v. New York, 500 U.S. 352, 355, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Borrowing from the burden-shifting model used in its other discrimination jurisprudence, the Supreme Court in Batson outlined a three-step process for determining whether a party has used its challenges in an unconstitutionally discriminatory manner. See 476 U.S. at 93-94 & n. 18, 106 S.Ct. 1712 (citing, inter alia United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)); accord Purkett.

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712). In other words, once a party opposing a Batson motion responds by explaining the reason for the peremptory strike, the trial court must then determine whether it was motivated by race or some other improper factor. See Purkett v. Elem, 514 U.S. at 767, 115 S.Ct. 1769 (per curiam) (“If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.”); Jordan v. Lefevre, 206 F.3d at 200 (granting habeas relief, pre-AEDPA, based on step-three Batson violation where trial judge failed to determine credibility of prosecutor’s race-neutral explanations and ultimate issue of discrimination); Aikens, 460 U.S. at 714-15, 103 S.Ct. 1478; Batson, 476 U.S. at 98, 106 S.Ct. 1712; United States v. Brooks, 2 F.3d 838, 840-41 (8th Cir.1993) (“Even if [the defendant] did not make a prima facie showing, his conviction must be overturned if the Government offered an explanation that is not race neutral or acted with discriminatory intent.”).

In order to establish a prima facie case of purposeful discrimination in selection of the petit jury: The movant must “raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 106 S.Ct. 1712; see also Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (“[T]he defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ”) (quoting Batson, 476 U.S. at 93-94, 106 S.Ct. 1712). A trial court “should consider all relevant circumstances” which might give rise to an inference of discrimination. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. The two factors noted by the Supreme Court likely to be of special significance were “a ‘pattern’ of strikes against black jurors included in the particular venire,” Batson, 476 U.S. at 96-97, 106 S.Ct. 1712, and “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Id.

Once the movant has established a prima facie case of race-based discrimination, the burden of production shifts to the non-movant to articulate an explanation for the strike that is, on its face, not racially discriminatory. Batson v. Kentucky, 476 U.S. at 97-98, 106 S.Ct. 1712; see also Hernandez v. New York, 500 U.S. at 358-59, 111 S.Ct. 1859. Notably, at Batson’s step-two stage, the prosecution’s only burden is to put forward a race-neutral explanation. “[T]he prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. 1712; see also Hernandez v. New York, 500 U.S. 352, 362-63, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“While the reason offered by the prosecutor for a peremptory strike need not rise to the level of a challenge for cause, the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character.”) (citation omitted). The party opposing the Batson motion has a “very low” burden at step two, for “although a race-neutral reason must be given, it need not be ‘persuasive or even plausible.’ ” Harris v. Kuhlmann, 346 F.3d 330, 343 (2d Cir.2003) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). At the second step of the Batson inquiry, “the issue is the facial validity of the prosecutor’s explanation!],]” and “[u]n-less a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859 (plurality opinion); id., at 374, 111 S.Ct. 1859 (O’Connor, J., concurring in judgment); accord Purkett, 514 U.S. at 768, 115 S.Ct. 1769. In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the Supreme Court explained the distinction between the second and third steps of the Batson inquiry as follows: At step two, the prosecutor may provide any “legitimate reason” for exercising a particular peremptory strike that on its face “does not deny equal protection.” Id. at 769, 115 S.Ct. 1769. The prosecutor’s stated reason at this step need not be persuasive or even plausible. Id. at 768, 115 S.Ct. 1769; see also Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. In contrast, Bat-son’ s third step focuses on the persuasiveness of the prosecution’s proffered explanation for the challenge which “ ‘largely will turn on [an] evaluation of [the prosecutor’s] credibility’ ” by the trial judge. Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (quoting Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712); accord Purkett, 514 U.S. at 768, 115 S.Ct. 1769 (“At th[e] [third] stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”).

On direct appeal, the Appellate Division adjudicated petitioner’s Batson claim on the merits as follows:

[The] County Court properly denied defendant’s Batson challenge with respect to a black female prospective juror. That prospective juror stated that her son had been convicted 12 years earlier and that she had strong feelings about the outcome of the trial and the way in which it was handled. The prosecutor explained that she was exercising a peremptory challenge with respect to that prospective juror because, even though the prospective juror stated that she could be impartial, the prosecutor did not believe her because of her strong feelings about her son’s conviction. The court properly determined that the prosecutor’s explanation was race-neutral and not pretextual. The court was in the best position to observe the demean- or of the prospective juror and the prosecutor, and its determination is entitled to great deference.

People v. Barney, 295 A.D.2d 1001, 1001, 743 N.Y.S.2d 793, 794 (N.Y.App.Div. 4th Dept.2002) (internal citations omitted). After reviewing the record in light of the above-discussed precedent, the Appellate Division reasonably applied the Supreme Court’s clearly established precedent in affirming Barney’s conviction with respect to his Batson claim. Batson’s step one is not at issue here, since Supreme Court has held that the prima facie case of discriminatory intent becomes irrelevant to the analysis of a peremptory challenge once the trial court proceeds to the second and third steps as it did in the present case. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”); accord Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000) (stating “that a trial judge may rule on a Batson application even in the absence of a prima facie showing of discrimination”); Sorto v. Herbert, 364 F.Supp.2d 240, 252 (E.D.N.Y.2004), aff'd, 497 F.3d 163 (2d Cir.2007).

As required under step two, the trial court sought race-neutral reasons for the prosecutor’s peremptory challenge to the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (quoted in Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). Here, the reasons proffered by the assistant district attorney were facially neutral and supported by the juror’s own statements in open court that her son had been convicted 12 years earlier and that she had strong feelings about the outcome of the trial and the way in which it was handled. Thus, Appellate Division’s determination of the facts on this point were not unreasonable in light of the evidence presented. The prosecutor met the low burden called for at Batson’s stage two.

The Court now turns to the third step, under which the trial judge “must then determine whether the defendant has carried his burden of proving purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. 1712 (quoted in Rice v. Collins, 546 U.S. at 338, 126 S.Ct. 969). As the Supreme Court has instructed:

[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike. At this stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Ibid. In that instance the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.

Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Batson’s “final step involves evaluating ‘the .persuasiveness of the justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” Rice, 546 U.S. at 338, 126 S.Ct. 969 (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769).

The trial judge at Barney’s trial credited the prosecutor’s proffered race-neutral reason. Under the circumstances here, the state courts were not unreasonable in determining that the prosecutor was credible and the reason for the peremptory strike not pretextual. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El, 123 S.Ct. at 1040. The Supreme Court and the Second Circuit have explained that habeas courts are not to lightly overturn a state court judge’s credibility determinations in Batson challenges. McKinney v. Artuz, 326 F.3d at 98 (“[E]valuation of the [striking attorney’s] state of mind based on [his or her] demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal quotations and citations omitted, brackets in original); Miller-El v. Cockrell, 123 S.Ct. at 1041 (“Deference is necessary because a reviewing court, which analyzes only the transcript from voir dire, is not as well positioned as the trial court is to make credibility determinations.”). Here, petitioner has not demonstrated to the Court any circumstances apparent on the record to demonstrate that the prosecutor’s demeanor was such as to suggest racial bias.

Looking at the reasonableness (or, stated another way, the improbability of the explanation), I note that the offered reason was based upon the juror’s affirmative statements on the record and is not implausible. See Jordan v. Lefevre, 206 F.3d at 200 (recognizing “negative experience with law enforcement, age, life experience, type of employment, and demean- or” as acceptable race neutral reasons for challenging prospective jurors). Petitioner has not provided any evidence to contradict that the prospective juror stated that her son had been convicted of a crime some 12 years previously and that she had strong feelings about how the case was disposed. In addition, petitioner has not argued, nor has he shown that there was less than complete uniformity in application of this particular factor to non-minority prospective jurors. See United States v. Alvarado, 951 F.2d 22, 25 (2d Cir.1991) (“The force of a prosecutor’s explanation for challenging a minority member of a venire is obviously weakened substantially by evidence that non-minority members to whom the same explanation applies were not challenged.”). In an attempt to rebut the finding of no racial discrimination, petitioner’s only argument is that the prosecutor’s reason was pretextual because the prospective juror asserted that notwithstanding her negative experience with the criminal justice system, she could be an impartial juror. The assessment of a prospective juror’s demeanor, like the assessment of the demeanor of the party making the peremptory strike, is a proper consideration in the Batson context. Thaler v. Haynes, — U.S. -, 130 S.Ct. 1171, 1174, — L.Ed.2d-(2010). (“Batson noted the need for a judge ruling on an objection to a peremptory challenge to “tak[e] into account all possible explanatory factors in the particular case,” 476 U.S., at 95, 106 S.Ct. 1712” (internal quotation marks omitted in original)); see also McCrory v. Henderson, 82 F.3d 1243, 1248 (2d Cir.1996). This determination generally is a matter of the trial court’s discretion, and its finding is entitled to deference on appellate and habeas review. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. It was not unreasonable for the Appellate Division to conclude that the trial court was in the best position to assess the prospective juror’s credibility. Given that petitioner has not come forward with any other indicia of pretext on the part of the prosecutor, this Court has no basis upon which to conclude that the trial court’s factual determinations regarding the prospective juror’s demeanor and the prosecutor’s credibility were unreasonable.

B. Failure of the Prosecution to Fulfill Due Process Disclosure Obligations

Georgette Snyder, an eyewitness to the altercation between petitioner and the decedent, testified on direct examination that when the police initially approached her, she told them she “hadn’t seen anything.” However, when they returned and informed her that the victim was not going to survive the knifing, she began crying and told them what she had observed of the struggle. T. 90. After Snyder’s testimony that she initially told the police she had not witnessed the crime, Barney’s attorney objected, arguing that this was exculpatory evidence which not been disclosed to the defense prior to trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). T. 98. In opposition to defense counsel’s motion for a mistrial, the prosecutor stated that Snyder did not testify that she told the police she was unable to identify the perpetrator, but rather said that she had not seen anything because she did not want to get involved. The trial court denied the mistrial motion. The trial court’s remedy was to allow defense counsel extra time to prepare for his cross-examination of Snyder. T. 97-100. On cross-examination, Snyder again testified that when the police inquired whether she knew what had happened, she said that she did not know anything because she did not want to be involved. T. 185-86.

On direct appeal, the Appellate Division rejected Barney’s contention that there was a violation of Brady in connection with Snyder’s testimony:

With respect to the alleged Brady violation, reversal is not required because defense counsel knew about the allegedly exculpatory evidence during trial and was given a meaningful opportunity to use it.

People v. Barney, 295 A.D.2d at 1001, 743 N.Y.S.2d at 794 (citing, inter alia, People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 (N.Y.1987)). In People v. Cortijo, the defendant discovered the existence of two eyewitnesses during the prosecution’s case-in-chief. After reviewing a statement made by one eyewitness, defense counsel declined the trial court’s offer to reopen the proofs and to have the prosecution’s witnesses recalled for additional cross-examination based on the newly disclosed witness statement. Cortijo, 523 N.Y.S.2d at 464, 517 N.E.2d 1349. The New York Court of Appeals refused to decide whether the witness statement was Brady material. Id. Rather, it noted that it had previously held that “ ‘[w]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant’s constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case.” Id. at 464, 517 N.E.2d 1349 (citing People v. Brown, 67 N.Y.2d 555, 505 N.Y.S.2d 574, 575, 496 N.E.2d 663 (N.Y.1986) (“Assuming the disputed information is Brady material, we conclude that defendant is entitled neither to a new trial nor to reopen the [suppression] hearing.... Defendant cannot claim that he was deprived of due process when he had the opportunity during the bench trial to cross-examine the identifying witness using the allegedly exculpatory evidence.”)). As the New York Court of Appeals did in People v. Cortijo, the state appellate court in Barney’s case apparently assumed without deciding that the testimony of Snyder was Brady material but found that there was no due process violation essentially because the evidence was not of the type that its disclosure was required prior to trial; in other words, “material” impeachment evidence was not “suppressed” in the Brady sense.

“Brady material that is not ‘disclosed] in sufficient time to afford the defense an opportunity for use’ may be deemed suppressed within the meaning of the Brady doctrine.’ ” United States v. Douglas, 525 F.3d 225, 245 (2d Cir.2008) (quoting Leka v. Portuondo, 257 F.3d at 103). The Second Circuit has explained that “materiality” and the timing of a disclosure required by Brady are linked; they are both “dependent upon the anticipated remedy for a violation of the obligation to disclose: the prosecutor must disclose ‘material’ (in the [United States v.] Agurs [427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ]/[United States v.] Bagley [473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ] sense) exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made.” See United States v. Coppa, 267 F.3d 132, 142 (2d Cir.2001) (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.2001) (“It is not feasible or desirable to specify the extent or timing of [the] disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense’s opportunity to use the evidence when disclosure is made.” (emphasis added in Cop-pa )). In this Court’s opinion, the fact that Snyder had initially denied knowing anything about the crime certainly is important impeachment evidence regarding a key prosecution witness. Nevertheless, the Appellate Division’s reliance upon People v. Cortijo to hold that under the circumstances presented here, there was no due process violation, was neither contrary to, nor constituted an unreasonable application of, clearly established Federal law. Here, the prosecutor did not “disclose” the witness’ first statement to police denying knowledge about the incident; rather, its existence simply was revealed during the course of the witness’ trial testimony. However, in light of the Second Circuit’s cases interpreting Brady, the Court cannot conclude that state court unreasonably applied Federal law in essentially concluding the evidence was not “suppressed” for purposes of establishing a Brady violation since defense counsel was able to use the evidence to try to impeach Snyder on cross-examination. See Coppa, 267 F.3d at 144 (“[A]s long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner. There is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial ----”) (quoted in Douglas, 525 F.3d at 245)).

C. Conviction for Criminal Possession of a Weapon Against the Weight of the Credible Evidence

Barney contends the verdict convicting him of criminal possession of a weapon in the third degree under N.Y. Penal Law § 265.01(2) — that is, possessing a dangerous weapon (here, a steak knife) with intent to use it unlawfully against another person — is against the weight of the credible evidence. Barney points out that the jury accepted his defense of justification with regard to the murder charge, and argues that the various eyewitnesses’ testimony presented credibility problems. As respondent points out, justification is not a defense to criminal possession of a weapon because the “intent to use and use of force are not the same, and justification, by the very words of the statute (Penal Law § 35.15), is limited to the latter.” People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 (N.Y.1986) (“We hold, therefore, that because possession of a weapon does not involve the use of physical force, there are no circumstances when justification (Penal Law § 35.15) can be a defense to the crime of criminal possession of a weapon.”) (internal citation omitted). The jury was instructed, however, that a defendant’s temporary possession of a dangerous weapon for a lawful purpose is not punishable as a crime. T. 1031. On direct appeal, the Appellate Division summarily ruled that Barney’s weapons-possession conviction was “not against the weight of the evidence.” People v. Barney, 295 A.D.2d at 1001, 743 N.Y.S.2d 793 (citing People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 (N.Y.1987)).

As an initial matter, a defendant’s claim that his conviction is against the weight of the credible evidence does not present a federal constitutional issue cognizable on habeas review. See, e.g., Robinson v. Scully, 683 F.Supp. 941, 943 (S.D.N.Y.1988) (“A claim that the verdict was against the weight of the evidence does not raise an issue of constitutional dimensions unless the record is so totally devoid of evidentiary support that a due process issue is raised.”) (citing Mapp v. Warden, 531 F.2d 1167, 1173-74 n. 8 (2d Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976); United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1131 (2d Cir.1972)). A “weight of the evidence” claim derives from C.P.L.”) § 470.15(5), which permits an appellate court in New York to reverse or modify a conviction where it determines “that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence.” N.Y. Crim. Proc. Law § 470.15(5). Thus, an argument that a verdict is against the weight of the evidence is a pure state law claim grounded in the criminal procedure statute, whereas a claim that the verdict is legally insufficient is based on federal due process principles. People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. at 68, 112 S.Ct. 475; see also 28 U.S.C. § 2254(a). Since a “weight of the evidence claim” is purely a matter of state law, it is not cognizable on habeas review. Accord, e.g., Ex parte Craig, 282 F. 138, 148 (2d Cir.1922) (holding that “a writ of habeas corpus cannot be used to review the weight of evidence ...”), aff'd, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293 (1923); Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y.2006) (dismissing claim that conviction was against the weight of the evidence; such a claim is not a basis for habeas relief but presents only an error of state law, for which habeas review is not available); Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y.2002) (same). Accordingly, Barney’s “weight of the evidence” claim is dismissed as it does not raise a federal claim cognizable on habeas review.

D. Judicial bias and misconduct on the part of the sentencing court

The Supreme Court has established that due process “requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) and citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-22, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), and Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927)). “[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice’ [...]” Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) (citations omitted). Cf. J.E.B. v. Alabama, 511 U.S. 127, 161 n. 3, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (Scalia, J., dissenting) (“Wise observers have long understood that the appearance of justice is as important as its reality.”). “The entitlement to an impartial tribunal applies to the sentencing phase of a criminal proceeding as well as to the guilt phase.” Robertson v. California, 498 U.S. 1004, 1005, 111 S.Ct. 568, 112 L.Ed.2d 575 (1990) (Blackmun, J., dissenting from denial of certiorari) (citing Witherspoon v. Illinois, 391 U.S. 510, 518, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (“It has not been shown that this jury was biased with respect to the petitioner’s guilt. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments.”) (citing Glasser v. United States, 315 U.S. 60, 84-86, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Turner v. State of Louisiana, 379 U.S. 466, 471-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965))).

“[A] biased tribunal always deprives the accused of a substantial right.” Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (same). The Supreme Court has held that trial before a biased judge is an error that is “ ‘structural,’ and thus subject to automatic reversal.... ” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (citing Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927)); see also Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (observing that it had found “lack of an impartial trial judge” to be a structural error) (citing Tumey, 273 U.S. at 523, 47 S.Ct. 437). “A favorable or unfavorable predisposition can ... deserve to be characterized as ‘bias’ or ‘prejudice’ because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (citations omitted).

Furthermore, the Supreme Court “has recognized ‘presumptive bias’ as the one type of judicial bias other than actual bias that requires recusal under the Due Process Clause.” Richardson v. Quarterman, 537 F.3d 466, 475 (5th Cir.2008) (citing Buntion v. Quarterman, 524 F.3d 664, 672 (5th Cir.2008). Presumptive bias occurs when a judge may not actually be biased, but has the appearance of bias such that “the probability of actual bias ... is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975)).

To prevail on a claim of judicial bias, habeas petitioner must demonstrate that he did not receive a trial “by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing.” Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). “Mere allegations of judicial bias or prejudice do not state a due process violation.” Brown v. Doe, 2 F.3d 1236, 1248 (2d Cir.1993), cert. denied, 510 U.S. 1125, 114 S.Ct. 1088, 127 L.Ed.2d 403 (1994).

Here, Barney has come forward with clear and uncontroverted documentary proof that Judge DiTullio harbored an actual bias against him and predetermined the outcome of the persistent felony offender hearing. At least a month before the prosecutor actually requested a persistent felony hearing, Judge DiTullio sent the following memorandum to the District Attorney of Erie County, which enclosed a letter she had received from juror named Judy Owen, who apparently was disgruntled about the verdict acquitting Barney of murder. The note was dated “3/3/99,” the day after the verdict, read in full as follows:

Dear Frank [Clark],

Please find a copy of a letter I received from a juror in a recent murder trial. [Prosecutor] Pat Carrington tried the case and did a terrific job — despite the disappointing verdict.

Since you are Pat’s boss — I thought it appropriate that you see this letter.

Finally, this jury did convict on the D/F [sic] weapon and this defendant is a persistent felony offender — appears as if the defendant won the battle but lost the war.

Sincerely,

Sheila DiTullio[, Erie County Court Judge]

It does not appear that trial counsel had access to the note at any time prior to sentencing. It is not clear how this came to the attention of Barney’s appellate counsel, who quoted it verbatim in the appellate brief argued that it demonstrated judicial bias on direct appeal. The memorandum is so starkly prejudicial that the District Attorney’s Office did not address it in opposition to the appeal. Furthermore, the Appellate Division inexplicably did not specifically mention the memorandum or in any way allude to this improper ex parte communication evidencing obvious prejudice on the part of the sentencing court.

That the hearing was merely a pretense is further demonstrated by the fact that after hearing several days of testimony, the trial court issued a conclusory ruling without specifying the court’s reasoning or the evidence upon which the court relied:

As a result of the hearing, the Court finds that the Defendant is a persistent felony offender as defined in 70.10-l[sic] of the Penal Law. I base that finding on all the proof presented at the 400.20 hearing concerning the Defendant’s criminal record and the history and character of the Defendant. That proof involved proof from the prosecution as well as the defense.

Transcript of August 18, 1999 Persistent Felony Offender Hearing (“8/18/99 Tr.”) at 37. Furthermore, the evidence presented at the persistent felony offender hearing hardly compelled the conclusion that Barney was the type of incorrigible, recidivist violent offender deserving of extended incarceration and lifetime supervision under New York’s harshest sentencing. For instance, Petitioner’s daughter testified that she had been in continuous contact with her father throughout her whole life, even while he was incarcerated; that Petitioner had always supported her, including by providing financial assistance; and that she never knew her father to abuse alcohol, use drugs, or be violent. 8/18/99 Tr. at 5-10. Petitioner testified that he had been released on parole with regard to the 1986 rape conviction, and had been released early from parole, after which he sought and obtained employment. 8/18/99 Tr. at 19-20. Petitioner testified that he had family in Las Vegas, Nevada; his nephew, Kemp Strickland, was a prosecutor there. His nephew had said he “would guarantee [Barney] employment” so he “could start [his] life over out there.” 8/18/99 Tr. at 20-21. Petitioner also testified regarding the circumstances underlying a previous conviction in the 1970s by guilty plea for attempted robbery, and explained that he was an unwitting participant in the incident, and that he received the minimum sentence possible. Id. at 21-27.

In sum, Barney has amply fulfilled his burden of demonstrating that Judge DiTullio clearly was not unbiased and impartial, and that his due process rights were violated by her having presided over his sentencing hearing.

E. Petitioner’s sentence under the persistent felony offender statute violated his Sixth Amendment right to a jury trial 1. Overview

The Sixth and Fourteenth Amendments guarantee that in federal and state “criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” U.S. Const. amend. VI; Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (holding that the Due Process Clause of the Fourteenth Amendment affords defendants the right to a jury trial in state prosecutions to the same extent the Sixth Amendment affords this right in federal prosecutions). “The Supreme Court has concluded that this guarantee requires that a jury, not a judge, find any facts (other than the fact of a prior convietion(s)) that may increase the penalty for a crime beyond the ordinary statutory maximum.” Besser, 601 F.3d at 180 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); accord Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). Barney challenges his enhanced sentence imposed pursuant to New York’s discretionary persistent felony offender statute, N.Y. Penal Law § 70.10, on the basis that it required the type of judicial fact-finding held impermissible under Apprendi and its progeny. Specifically, Barney contends, the enhanced sentence violated his Sixth Amendment rights because it was based on facts not submitted to the jury and not proven beyond a reasonable doubt, in violation of his Sixth Amendment right to a jury trial.

2. New York’s Persistent Felony Offender Statutes

New York has two sentence-enhancing statutes for persistent felony offenders. One is the persistent violent felony offender provision in N.Y. Penal Law § 70.08. That statute applies to defendants who stand convicted of a violent felony (as defined in N.Y. Penal Law § 70.02) and have previously been convicted of two or more predicate violent felonies (as defined in N.Y. Penal Law § 70.04(l)(b)). See People v. Rivera, 5 N.Y.3d 61, 73 n. 3, 800 N.Y.S.2d 51, 833 N.E.2d 194 (N.Y.2005) (Kaye, Ch. J., dissenting). Such defendants receive an indeterminate sentence of imprisonment, the maximum of which must be life. See Rivera, 5 N.Y.3d at 73, 800 N.Y.S.2d 51, 833 N.E.2d 194 (Kaye, Ch. J., dissenting) (“The persistent felony offender statute ... stands in stark contrast to Penal Law § 70.08, which requires that all three-time violent felons be sentenced to an indeterminate life term on the basis of the prior convictions alone.”). Minimum terms are prescribed by the statute as well and vary depending on the grade of the offense of conviction. Under the provisions applicable to persistent violent felony offenders, the existence or non-existence of a prior felony alone determines the applicable range. Compare N.Y. Penal Law §§ 70.08 with 70.10. Section 70.08 of the Penal Law “defines a ‘persistent violent felony offender’ as “a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to two or more predicate violent felony convictions” (Penal Law § 70.08(1)(a)).” People v. Green, 68 N.Y.2d 151, 152, 506 N.Y.S.2d 298, 497 N.E.2d 665 (N.Y.1986). Because N.Y. Penal Law § 70.08 requires the sentencing court to make no factual finding other than the fact of the existence of two or more predicate violent felony convictions, courts have rejected challenges to its constitutionality under the 6th and 14th Amendments because it falls squarely within the exception carved out by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Apprendi for sentence enhancements based solely on prior convictions. E.g., Quan v. Potter, No. 06 CV 4841(JG), 2007 WL 3223217, *7 (E.D.N.Y. Oct. 29, 2007) (“However, an enhancement based on § 70.08 relies solely upon the court’s finding of the qualifying prior convictions. The enhancement thus falls within the exception to the Apprendi rule. Unlike § 70.10, the discretionary persistent felony offender statute which raises Sixth Amendment concerns, § 70.08, the mandatory persistent felony offender statute does not implicate Quan’s Sixth Amendment right to a jury determination.”) (internal citations omitted). The Second Circuit has not specifically addressed the validity of § 70.08, but pointed out in Besser that it was not addressing § 70.08. Besser v. Walsh, 601 F.3d at 170 n. 5. See, e.g., Antinuche v. Zon, No. 1:05-cv-01246-ENV, 2010 WL 2035795, at *11 n. 6 (E.D.N.Y. May 20, 2010).

A persistent violent felony offender must be sentenced to an indeterminate sentence having a maximum term of life imprisonment (Penal Law § 70.08(2)), with different minimum terms being set based upon the class of felony for which the defendant has been convicted. See N.Y. Penal Law § 70.08(3). Under P.L. § 70.08, “the court must impose” an enhanced penalty once it finds that a defendant has sustained the requisite number and type of predicate felony convictions, id. at § 70.08(2). Practitioners of criminal law in New York often refer to P.L. § 70.08 as the “mandatory” persistent felon statute; hence, their use of the shorthand “mandatory” to describe that form of sentence enhancement.

The second persistent felony offender statute is N.Y. Penal Law § 70.10. This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.08. It characterizes as a “persistent felony offender” any defendant who stands convicted of a felony and has two prior felony convictions (whether or not they are for violent felonies) as defined in the statute. See N.Y. Penal Law § 70.10(l)(a)-(c). As an enhanced penalty for such offenders, P.L. § 70.10 provides that, in lieu of the sentence otherwise authorized by the penal law, persistent felony offenders “may” be sentenced as though the offense of conviction were a class A-l felony. Id. (emphasis added). Persistent felony offenders may be sentenced to an indeterminate sentence in the range authorized for Class AI felony offenses, instead of the sentencing range authorized for the class of the defendant’s actual offense (here, Class D). See id. § 70.10(2); see also N.Y. Crim. Proc. Law § 400.20(l)(b). Class A-I felonies carry a minimum period of 15 years and a maximum of life imprisonment. See N.Y. Penal Law §§ 70.00(2)(a), 70.00(3)(a)(i).

In order to impose a persistent felony offender sentence under P.L. § 70.10, the state court also must make a finding of at least two prior felony convictions. Unlike the enhanced sentences prescribed by the persistent violent offender provision, which again are mandatory, the enhancement under P.L. § 70.10 does not necessarily follow once a defendant is found to have the requisite prior convictions. After the court finds the requisite number of predicate felony convictions, the defendant is “expos[ed] ... to a Class A-I sentence.” Id. (citing N.Y. Penal Law § 70.10). And the sentencing judge at that point may declare the defendant a persistent felony offender. More is required, however, in order to actually impose a Class A-I sentence under N.Y. Penal Law § 70.10:

[A Class A-I] sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section [i.e., N.Y. Crim. Proc. Law § 400.20(9) ], the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest.

N.Y. Crim. Proc. Law § 400.20(1) (emphases supplied).

After the defendant is determined to be an eligible recidivist, the sentencing court must conduct a hearing to determine whether “it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest.” Id. at § 70.10(2); see also N.Y.Crim. Proc. Law § 400.20. Only if the court reaches that “opinion” and supports it with sufficient factual findings may the enhanced (i.e., A-1 felony) punishment be imposed. This form of sentence enhancement is therefore referred to as the “discretionary” persistent felony offender punishment. In contrast to the persistent violent felony offender statute, § 70.08, which provides for different minimum terms based upon the class of felony for which the defendant is convicted, “[n]o gradation of penalty due to the class of felony committed has been provided for in the persistent felony offender statute, and in this sense the sentence authorized for a persistent felony offender (Penal Law, § 70.10, subd. 2) bears no relationship to the gravity of the underlying crime committed. The authorized sentence for a persistent felony offender does not depend on the class of felony committed.” Roballo v. Smith, 99 A.D.2d 5, 8, 471 N.Y.S.2d 433, 435 (N.Y.App.Div. 4th Dept.), aff'd, 63 N.Y.2d 485, 483 N.Y.S.2d 178, 472 N.E.2d 1006 (N.Y.1984).

It is important to note that the sentencing judge, acting pursuant to P.L. § 70.10(2) in conjunction with the dictates of C.P.L. § 400.20, need only find that the prosecution has established the “[m]atters pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct” (sometimes referred to as the “history/character/criminal conduct finding”) by a “preponderance of the evidence.” Id., § 400.20(5); accord Besser, 601 F.3d at 171.

The Second Circuit in Besser explicitly rejected the State’s argument, based upon statements by the New York Court of Appeals in People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, 198-99 (2005), that “a finding of two felony convictions alone locks in the Class A-I range, with life as a maximum.” Besser, 601 F.3d at 172. Rather, the Second Circuit held, “[t]he history/character/criminal conduct findings, which are subject to appellate review, are necessary to lock in the Class A-I range and, if such findings do not justify a Class A-I sentence, require the sentencing court to sentence the defendant in a lesser range, usually as a second felony (or violent felony) offender.” Id. (emphasis supplied).

In this case, Barney was found to warrant the severest level of recidivist sentencing, authorized under N.Y. Penal Law § 70.10, the “discretionary” persistent felony offender statute. Section 70.10 provides that a defendant who has been previously convicted of two felonies is a “persistent felony offender” (sometimes referred to as a “PFO”). See N.Y. Penal Law § 70.10(l)(a). Barney, as a PFO, was sentenced to 15 years for life for the class D felony conviction, third degree criminal possession of a weapon. The sentence imposed was the lowest possible under the PFO statute. However, the minimum (15 years) was three (3) years more than the minimum he could have received (12 years) had he been sentenced as a persistent violent felony offender under N.Y. Penal Law § 70.08.

3. Petitioner’s Prior State Court Proceedings Concerning the Apprendi/Blakely Claim

As noted above, Barney was acquitted of second degree (intentional) murder but convicted by the jury of third degree criminal possession of a weapon, a Class D felony. The state moved to have Barney sentenced as a persistent felony offender, in the hopes of securing a Class A-I sentence. At the beginning of the hearing, the prosecutor observed that Barney could otherwise be sentenced as a persistent violent felony offender, see N.Y. Penal Law § 70.08, and defense counsel agreed. Barney did not deny his three prior violent felony convictions, nor did he raise any constitutional challenge to his prior convictions. Barney, however, did contest whether his criminal conduct, history, and character was of the kind warranting an enhanced sentence under P.L. § 70.10.

At the conclusion of the hearing, the trial court ruled from the bench as follows:

As a result of the hearing, the Court finds that the Defendant is a persistent felony offender as defined in 70.10 — l[sic] of the Penal Law. I base that finding on all the proof presented at the 400.20 hearing concerning the Defendant’s criminal record and the history and character of the Defendant. That proof involved proof from the prosecution as well as the defense.

Transcript of August 18, 1999 Persistent Felony Offender Hearing (“8/18/99 Tr.”) at 37. That was the full extent of the sentencing court’s decision. But see Besser, 601 F.3d at 171 (“If the sentencing court imposes a Class A-I sentence, ‘the reasons for the court’s opinion shall be set forth in the record.’ ”) (quoting N.Y. PeNal Law § 70.10(2) (emphasis supplied)).

This claim was presented in Barney’s C.P.L. § 440.10 motion, and the County Court dismissed the claim on the merits, citing People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844 (N.Y.2001), in which the New York Court of Appeals held that “prior felony convictions are the sole determinate [sic] of whether a defendant is subject to enhanced sentencing as a persistent felony offender.” Although the sentencing “court must consider other enumerated factors to determine whether it ‘is of the opinion that a persistent felony offender sentence is warranted,’ ” id. (quoting N.Y. Crim. Proc. Law § 400.20(9) (emphases supplied)), this amounts “only [to the court] fulfilling its traditional role-giving due consideration to agreed-upon factors-in determining an appropriate sentence within the permissible statutory range[,]” id. The Appellate Division denied leave to appeal. Although the form habeas petition filed by Barney did not explicitly raise the Apprendi issue with regard to his sentence, respondent’s opposition addressed the Apprendi claim inasmuch as it was raised on direct appeal and in support of the motion to vacate the judgment pursuant to C.P.L. § 440.10. Given that pro se filings should be generously construed to raise the strongest arguments they suggest, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and the applicability of the liberal amendment policy reflected in Fed. R. Civ. P. 15(a), see, e.g., Littlejohn v. Artuz, 271 F.3d 360, 363-64 (2d Cir.2001), as well as the fact that the respondent specifically addressed this claim in opposing Barney’s direct appeal and C.P.L. § 440.10 motion, which specifically argued that the sentence was unconstitutional in light of the Supreme Court’s clarification of Apprendi’s meaning in Blakely v. Washington, the Court will construe Barneys’ petition as raising the Apprendi issue-along with his original claim regarding the fairness of his sentence.

4. Petitioner’s Apprendi Claim Was Adjudicated on the Merits

“AEDPA deference applies only if a state court has disposed of a federal claim ‘on the merits’ and ‘reduce[d] its disposition to judgment.’ ” Besser, 601 F.3d at 179 (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)). An “adjudication on the merits” is a “substantive, rather than a procedural, resolution of a federal claim.” Sellan, 261 F.3d at 313 (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir.1999) (quotation marks omitted)); accord, e.g., Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007). The C.P.L. §§ 440.10/440.20 court denied Barney’s sentencing claim in specific reliance upon People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 (N.Y.2001), in which the New York Court of Appeals sustained the constitutionality of Penal Law § 70.10 and Criminal Procedure Law § 400.20(5). The issue is whether the C.P.L. §§ 440.10/440.20 court’s order denying the Blakely claim based upon People v. Rosen constituted an “adjudication on the merits” for AEDPA purposes.

Based upon the Second Circuit’s decision in Besser v. Walsh, I conclude that the County Court’s order did constitute such a merits-adjudication. In support of this conclusion, I note the Second Circuit held in Brown v. Greiner, 409 F.3d 523, 526 (2d Cir.2005) (“Brown I”), that the New York State Court of Appeals in People v. Rosen could not have invoked state procedural law and barred Rosen’s Sixth Amendment sentencing claim without first having found that the claim was without merit. Besser, 601 F.3d at 179 (citing Brown I, 409 F.3d at 532). Subsequently, in Brown v. Miller, 451 F.3d 54, 56-57 (2d Cir.2006) (“Brown II”), the Second Circuit held that a state court’s citation to People v. Rosen in holding that an Apprendi claim was procedurally barred established that the state court decision was sufficiently interwoven with federal law so as to preclude a finding that the state court decision rested upon an adequate and independent state ground. Besser, 601 F.3d at 179 (citing Brown II, 451 F.3d at 56-57). Accordingly, the state courts’ procedural rulings relying upon People v. Rosen the in the Besser cases were not “adequate” and “independent” grounds for the decision and did not bar the Second Circuit from addressing the Apprendi federal claims on habeas review. Id. (citations omitted).

5. What is the “Clearly Established” Supreme Court Precedent for AED-PA purposes in the context of deciding a Sixth Amendment sentencing claim based on Apprendi?

Clearly established federal law “refers to the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. Accord Besser, 601 F.3d at 178. To assess “clearly established” law, federal habeas courts apply rules of retroactivity that are generally consistent with those set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Id. at 178-79 (citing Mungo v. Duncan, 393 F.3d 327, 333-34 (2d Cir.2004)). Teague held that retroactive application of “new” legal rules on collateral review is prohibited. Id. (citing Teague, 489 U.S. at 295-96, 109 S.Ct. 1060; see also id. at 301, 109 S.Ct. 1060 (O’Connor, J., concurring