     08-0274-pr
     West v. Breslin


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 9th day of February, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                RAYMOND J. LOHIER, Jr.,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       OLIVER GIOLA WEST, JR.,
14
15                     Petitioner-Appellant,
16
17                     -v.-                                              08-0274-pr
18
19       SUPERINTENDENT DENNIS BRESLIN,
20
21                Respondent-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:            Jan Hoth
25                                 (Robert S. Dean, on brief)
26                                 Center for Appellate Litigation
27                                 New York, NY

                                                  1
 1
 2   FOR APPELLEE:     Mark Dwyer
 3                     Malancha Chanda
 4                     (Robert M. Morgenthau, on brief)
 5                     District Attorney Office, New York County
 6                     New York, NY
 7
 8        Appeal from the denial of an application for a writ of
 9   habeas corpus by the United States District Court for the
10   Southern District of New York (Castel, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the district court’s denial of Appellant’s
14   application for a writ of habeas corpus is AFFIRMED.
15
16        Appellant Oliver West, Jr. was convicted by a New York
17   state court jury of Rape in the First Degree and Sodomy in
18   the First Degree. He was sentenced as a “persistent felony
19   offender” under Section 70.10 of New York Penal Law to two
20   concurrent terms of fifteen years to life in prison. West
21   appeals the denial of his application for a writ of habeas
22   corpus, arguing that New York’s persistent felony offender
23   statute violates his constitutional due process and jury
24   rights. We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        We review de novo a district court’s denial of a habeas
29   petition. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir.
30   2010). We may grant a writ of habeas corpus on a claim that
31   has been previously adjudicated on the merits by a state
32   court only if the state court’s adjudication: (1) “resulted
33   in a decision that was contrary to, or involved an
34   unreasonable application of, clearly established Federal
35   law, as determined by the Supreme Court of the United
36   States”; or (2) “resulted in a decision that was based on an
37   unreasonable determination of the facts in light of the
38   evidence presented in the State court proceeding.” 28
39   U.S.C. § 2254(d); Jones v. West, 555 F.3d 90, 96 (2d Cir.
40   2009).
41
42        West’s sole argument on appeal is that New York’s
43   persistent felony offender statute, N.Y. Penal Law § 70.10,
44   violates clearly established federal law by infringing on
45   his constitutional due process and jury rights as outlined
46   by the U.S. Supreme Court in Apprendi v. New Jersey, 530
47   U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002),

                                  2
 1   Blakely v. Washington, 542 U.S. 296 (2004), United States v.
 2   Booker, 543 U.S. 220 (2005), and Cunningham v. California,
 3   549 U.S. 270 (2007). In Portalatin v. Graham, 624 F.3d 69
 4   (2d Cir. 2010) (in banc), we held that New York’s persistent
 5   felony offender statute did not violate clearly established
 6   federal law as determined by the U.S. Supreme Court.
 7   Specifically, we held that New York’s persistent felony
 8   offender statute was consistent with the U.S. Supreme
 9   Court’s holdings in Apprendi, Ring, Blakely, Booker, and
10   Cunningham. Id. at 93-94. Therefore, West’s petition is
11   without merit.
12
13        We hereby AFFIRM the district court’s denial of West’s
14   application for a writ of habeas corpus.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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