I was sentenced to 15 years to life in 1984 under NY's Persistent Felony offender statutes (NY Penal Law 70.10 & NY Criminal Procedure Law 400.20) for a gun charge (CPW 3rd degree) which normally carries a maximun 3 1/2 -7 year Penalty. Surface, a Syracuse University legal publication (college of Law Faculty Scholarship) summer 7-26-2012 wrote a paper entitled: " Discretionary Persistent Felony Offender Sentencing In New York: Can it survive Apprendi? which essentially asserts NY's PFO adjudication sentencing provisions (NY CPL 400.20) " History and Character " findings requirement for discretionary sentence enhancement, to be unconstitutional as found by a trial Justice and not a Jury. I was paroled in 2005, still have issues regarding bias by the state trial court (never actually litigated for procedural default reasons) and am asking can I now raise a challenge to NY CPL 400.20 in a USC title 42 section 1983 Civil Action?
I see lots of possible issues here, including:
- Will the Apprendi decision be given retroactive effect?
- Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later?
- Will a court agree with the law review publication?
- Will the facts in your case be sufficiently similar to the cited case?
Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred.
To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case.