Judge Debra Ann Livingston
Decided: Nov. 10, 2009

SUSAN D. FITZPATRICK, Law Offices of Susan D. Fitzpatrick, Esq., Red Hook, N.Y., for Petitioner-Appellant. JODI A. DANZIG, Assistant Attorney General (BARBARA D. UNDERWOOD, Solicitor General, ROSEANN B. MacKECHNIE, Deputy Solicitor General for Criminal Matters, of counsel), for ANDREW M. CUOMO, Attorney General of the State of New York, N.Y., for Respondent-Appellee. Petitioner-Appellant seeks federal habeas review of his convictions for first degree riot and second degree assault under New York law, which were upheld on direct appeal. See People v. Ortiz, 777 N.Y.S.2d 640, 640 (N.Y. App. Div. 1st Dep’t 2004). The United States District Court for the Southern District of New York (Preska, J.) denied his request for a writ of habeas corpus. On appeal, Petitioner-Appellant claims that the New York courts’ interpretation of the 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. We find that the New York courts’ rejection of Petitioner-Appellant’s due process claim and, specifically, his contention that the law did not “ma[ke] it reasonably clear at the relevant time that [his] conduct was criminal,” Ponnapula v. Spitzer, 297 F.3d 172, 183 (2d Cir. 2002) (quoting United States v. Lanier, 520 U.S. 259, 267 (1997)) (internal quotation marks omitted), was not “an unreasonable application of… clearly established Federal law.” 28 U.S.C. §2254(d)(1). Accordingly, the district court appropriately denied Petitioner-Appellant’s request for the writ.

Affirmed.