Sixth Amendment clarity in the midst of March Madness

I recently noted here the big habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  I have now had a chance to read Portalatin closely; Judge Gleeson’s work is exceptional and should be read in full by all Blakely followers.  Of particular note is how, in finding New York’s discretionary persistent felony offender statute unconstitutional, Portalatin highlights (and rejects) New York’s effort to take a functional approach to the reach of the Sixth Amendment:

Rosen posits a world in which factfindings necessary to imposition of an enhanced sentence — beyond the prior convictions that render the defendant merely eligible for one — may be allocated between judge and jury by reference to the “traditional roles” of each. As elaborated upon by Brown, in that world, offense elements or their “functional equivalents” must be submitted to juries, but “amorphous” determinations regarding a defendant’s history and character, and whether extended incarceration and life-time supervision are necessary, may properly be made by a preponderance of the evidence by judges. I accept, as I must, Brown‘s holding that such a world constitutes a not-unreasonable application of Apprendi, but I think it clear that it is now contrary to (and objectively unreasonable in light of) Ring and Blakely.

Though I am not sure I agree completely with Portalatin‘s analysis, I am sure Judge Gleeson has produced one of the strongest recent Sixth Amendment decisions.