Glaser v. Poole

SUMMARY ORDER Petitioner-appellant Charles Glaser appeals from a judgment of the district court dated November 13, 2007, dismissing his petition for a writ of habeas corpus. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. Glaser’s argument that New York’s persistent felony offender sentencing statute, N.Y. Penal Law § 70.10, is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny is precluded by this Court’s prior rejection of that argument in Brown v. Miller, 451 F.3d 54 (2d Cir.2006). While Glaser urges us to reconsider Brown in light of more recent Supreme Court cases applying Apprendi, we have made clear that “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), includes only those Supreme Court cases that have been decided, at the latest, by the time a habeas petitioner’s conviction becomes final, and that “[l]ater Supreme Court decisions play no role in assessing the reasonableness of the state court decisions.” Brown v. Greiner, 409 F.3d 523, 533 & n. 3 (2d Cir.2005). Because he did not file a petition for a writ of certiorari, Glaser’s conviction became final ninety days after the New York Court of Appeals denied him leave to appeal, see People v. Glaser, 98 N.Y.2d 651, 745 N.Y.S.2d 509, 772 N.E.2d 612 (2002), that is, on August 8, 2002. See, e.g., Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir.2000) (discussing when state criminal convictions become final). At that time, the only relevant Supreme Court decisions were Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and thus those are the only eases that may be considered here. Since this Court has already considered the effect of both Apprendi and Ring in Brown v. Miller, 451 F.3d at 56, we must follow our precedent. 1 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. Footnotes [1] This Court recently decided the cases consolidated under Besser v. Walsh, 601 F.3d 163 (2d Cir.2010), which, though related to the issues raised here, does not affect our analysis.