Habeas attack on NY persistent felony offender statute

A helpful reader noted to me a big recent habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  In Portalatin, EDNY District judge John Gleeson essentially disagrees with the New York’s state court decision in Rivera that the state’s discretionary persistent felony offender statute is constitutionally sound (background here and here).  Here is the start of Portalatin (which I will discuss more fully when I get a chance to read it more closely):

Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York’s discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin’s constitutional right to a jury trial, the petition is granted.

UPDATE:  Laura Appleman at Concurring Opinions has more on Portalatin here.