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Abel Ortiz v. N.Y.S. Parole in Bronx, N.Y.

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Argued: April 20, 2009

Before: KEARSE, SACK, and LIVINGSTON, Circuit Judges.

Petitioner Abel Ortiz (“Ortiz”) appeals from the decision of the United States District Court for the Southern District of New York (Preska, J.), denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in New York State Supreme Court, New York County (Fried, J.), Ortiz was convicted of seven counts of riot in the first degree, in violation of N.Y. Penal Law § 240.06, and seven counts of assault in the second degree, in violation of N.Y. Penal Law § 120.05(6). On appeal to this Court, Ortiz claims that the district court erred in denying his petition because the New York courts’ interpretation of the New York riot statute, N.Y. Penal Law § 240.06, deprived him of the right to fair notice under the Due Process Clause of the Fourteenth Amendment. See Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008) (“[A] conviction is invalid under the Due Process Clause if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited . . . .” (quoting United States v. Williams, 128 S.Ct. 1830, 1845 (2008)) (internal quotation marks omitted)). We affirm the judgment of the district court.

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