     07-5023-pr
     Washington v. Graham



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 December, two thousand                    nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                              Circuit Judge,
10                J. GARVAN MURTHA,
11                              District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       JONNY WASHINGTON,
15                Petitioner-Appellant,
16
17                    -v.-                                               07-5023-pr
18
19       HAROLD D. GRAHAM, Superintendent,
20                Respondent-Appellee.


                *
               J. Garvan Murtha, Senior District Judge of the United
         States District Court for the District of Vermont, sitting
         by designation.

                                                  1
 1   - - - - - - - - - - - - - - - - - - - -X
 2
 3   APPEARING FOR APPELLANT:   MONICA R. JACOBSON, New York,
 4                              New York.
 5
 6   APPEARING FOR APPELLEES:   ASHLYN DANNELLY (Andrew Cuomo,
 7                              Barbara D. Underwood, Roseann B.
 8                              MacKechnie, and Ashlyn Dannelly,
 9                              on the brief), Office of the
10                              Attorney General of the State of
11                              New York, Albany, New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Eastern District of New York (Cogan, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Jonny Washington petitions this Court for a writ of
21   habeas corpus on the ground that his sentence in a New York
22   State Supreme Court violated Apprendi v. New Jersey, 530
23   U.S. 466 (2000). We assume the parties’ familiarity with
24   the underlying facts, the procedural history, and the issues
25   presented for review.
26
27        Washington was sentenced under New York’s persistent
28   violent felony offender statute. See N.Y. Penal Law
29   § 70.08(1)(a). That statute provides for an enhanced
30   sentence if the defendant was convicted of two or more
31   prior violent felonies within ten years of the commission of
32   the instant offense, though that ten-year period is tolled
33   by any period of incarceration. Id. § 70.04(b)(iv), (v).
34   Only the court--not a jury--can determine whether the
35   requirements for an enhanced sentence are met. N.Y. Crim.
36   Proc. Law §§ 400.16(2), 400.15(7)(a).
37
38        Washington contends that this regime violates Apprendi,
39   which held that “any fact that increases the penalty for a
40   crime beyond the prescribed statutory maximum must be
41   submitted to a jury, and proved beyond a reasonable doubt.”
42   530 U.S. at 490. But Apprendi exempts from this requirement
43   “the fact of a prior conviction.” Id. The question
44   presented by the petitioner is whether Apprendi’s prior
45   conviction exception permits a sentencing court to conduct
46   the tolling analysis required by the statute.


                                  2
 1        We need not decide that question. We can grant habeas
 2   relief only if the state court proceedings “resulted in a
 3   decision that was contrary to, or involved an unreasonable
 4   application of, clearly established Federal law, as
 5   determined by the Supreme Court of the United States.” 28
 6   U.S.C. § 2254(d)(1). Applying that standard, we must deny
 7   relief. Cf. United States v. Santiago, 268 F.3d 151, 153,
 8   156 (2d Cir. 2001) (holding that a district court’s finding
 9   that prior convictions occurred on separate occasions falls
10   within the prior conviction exception); id. at 156
11   (explaining that the prior conviction exception includes
12   within its scope the “who, what, when, and where” of a prior
13   conviction); see also United States v. Fagans, 406 F.3d 138,
14   141-42 (2d Cir. 2005).
15
16        Finding no merit in Washington’s remaining arguments,
17   we hereby AFFIRM the judgment of the district court.
18
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22                              By:
23
24
25
26                              ___________________________




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