         08-2507-pr
         Kross v. Napoli


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 13 th day of December, two thousand                                    and ten.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges
 9                MIRIAM GOLDMAN CEDARBAUM,
10                         District Judge. *
11
12
13
14
15       MELVIN KROSS,
16
17                                       Petitioner-Appellant,
18
19                       -v.-                                                            08-2507-pr
20
21       SUPERINTENDENT NAPOLI,
22
23                                       Respondent-Appellee.
24
25
26




                 *
                 The Honorable Miriam Goldman Cedarbaum, of the United States District
         Court for the Southern District of New York, sitting by designation.
 1   FOR APPELLANT:       SALLY WASSERMAN, New York, NY.
 2
 3   FOR APPELLEE:        LEONARD JOBLOVE, Assistant District
 4                        Attorney (Ann N. Bordley, Assistant
 5                        District Attorney, on the brief), for
 6                        Charles J. Hynes, District Attorney,
 7                        Kings County, Brooklyn, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Eastern District of New York (Korman, J.)
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.

15       Petitioner-Appellant, Melvin Kross, appeals from a

16   March 27, 2008, judgment of the United States District Court

17   for the Eastern District of New York (Korman, J.), denying

18   his petition for a writ of habeas corpus pursuant to 28

19   U.S.C. § 2254.     The district court granted Kross a

20   certificate of appealability, limited to the issue of

21   whether Kross’s sentencing pursuant to New York’s persistent

22   felony offender statute violated his Sixth Amendment right

23   to a jury trial.     We assume the parties’ familiarity with

24   the underlying facts, the procedural history, and the issues

25   presented for review.

26       Appellant’s sole argument on appeal is that the state

27   court’s finding that he was a persistent felony offender

28   within the meaning of N.Y. Penal Code § 70.10 violated his

                                     2
1    Sixth Amendment right to a jury trial.   We recently rejected

2    this argument and upheld New York’s persistent felony

3    offender statute, as interpreted by the New York Court of

4    Appeals, against a Sixth Amendment challenge explaining that

5    under that statute, “the predicate felonies alone expand the

6    indeterminate sentencing range within which the judge has

7    the discretion to operate, and that discretion is cabined

8    only by an assessment of defendant’s criminal history.”

9    Portalatin v. Graham, 624 F.3d 69, 94 (2d Cir. 2010) (en

10   banc).   Under Portalatin, Appellant’s argument is

11   foreclosed.

12       For the foregoing reasons, the judgment of the district

13   court is hereby AFFIRMED.

14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18




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