
    Melvin KROSS, Petitioner-Appellant, v. Superintendent NAPOLI, Respondent-Appellee.
    No. 08-2507-pr.
    United States Court of Appeals, Second Circuit.
    Dec. 13, 2010.
    
      Sally Wasserman, New York, NY, for Appellant.
    Leonard Joblove, Assistant District Attorney (Ann N. Bordley, Assistant District Attorney, on the brief), for Charles J. Hynes, District Attorney, Kings County, Brooklyn, NY, for Appellee.
    PRESENT: B.D. PARKER, RICHARD C. WESLEY, Circuit Judges, MIRIAM GOLDMAN CEDARBAUM, District Judge.
    
    
      
       The Honorable Miriam Goldman Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation.
    
   SUMMARY ORDER

Petitioner-Appellant, Melvin Kross, appeals from a March 27, 2008, judgment of the United States District Court for the Eastern District of New York (Korman, J.), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted Kross a certificate of appealability, limited to the issue of whether Kross’s sentencing pursuant to New York’s persistent felony offender statute violated his Sixth Amendment right to a jury trial. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant’s sole argument on appeal is that the state court’s finding that he was a persistent felony offender within the meaning of N.Y. Penal Code § 70.10 violated his Sixth Amendment right to a jury trial. We recently rejected this argument and upheld New York’s persistent felony offender statute, as interpreted by the New York Court of Appeals, against a Sixth Amendment challenge explaining that under that statute, “the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.” Portalatin v. Graham, 624 F.3d 69, 94 (2d Cir.2010) (en banc). Under Portalatin, Appellant’s argument is foreclosed.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.  