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February 17, 2005

11th Circuit speaks on retroactivity

I have been off-line playing the DC tourist most of the day and now I am off to participate in a panel discussion sponsored by the Supreme Court Fellows Program concerning the impact of new technologies on how the media covers the Supreme Court (discussed previously here).  But as I dash out I see that from Appellate Law & Practice here that the 11th Circuit has ruled per curiam in Varela v. US, No. 04-11725 (11th Cir. Feb. 17, 2005) (available here) that Blakely and Booker are not retroactively applicable to cases on collateral review.  I hope to comment on this case, and other DC news and notes, later tonight.

UPDATE: The work of the Eleventh Circuit in Varela is both unsurprising and uninspiring.  As have most district courts in the wake of Blakely and Booker, the Varela court simply parrots parts of the Supreme Court's ruling in Schriro concerning Ring's non-retroactivity to declare that Blakely and Booker are not retroactively applicable to cases on collateral review.  Unlike the Seventh Circuit's more thorough and thoughtful effort in McReynolds (details here), the Eleventh Circuit in Varela does not grapple with or even acknowledge that Schriro only concerned judge/jury issues and did not consider the possible impact of key burden of proof issues on retroactivity.

February 17, 2005 at 02:28 PM | Permalink

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Comments

I want to confirm a DAB sighting in DC today (and for the previous two days). He has been his usual bright and entertaining self. And I guess all rumors that Doug Berman was really a psuedonym for 7 people have now been dispelled because he in fact has not posted since 2 PM today.

Posted by: CDH | Feb 17, 2005 9:39:41 PM

Thanks, CDH, for confirming my singularity, and also for the nice comments. It's been fun and heady times inside the Beltway, but I am still a cyber-nerd at heart.

Posted by: Doug B. | Feb 17, 2005 9:46:36 PM

oh, doug, you truly are a cybernerd. i thought you were going to turn in for the night without posting after what i assume was a dinner at scotus? you are incorrigible!

Posted by: CDH | Feb 17, 2005 11:09:18 PM

Guilty as charged.

Posted by: Doug B. | Feb 18, 2005 12:45:03 AM

As a recently released federal prisoner for obstruction, my view from behind the fence was the Supreme Court did not state a new rule in Booker, but merely returned the sentencing scheme to "what it always should have been." My 2255 is due in April 2006 in the 11th Circuit (Tampa, Florida) and the sense of injustice from my government and courts makes me weep.

However, since the federal government has slipped the Constitutional restraints by entering into treaties and international agreements with other countries (Title 21, a civil title contains criminal penalties. This title is the implementing title for the Single Convention on Narcotic Drugs, 1961)(See 21 USC section 801)). Everyone in prison on a drug charge is there because they violated the implementing legislation for a treaty. Surely, if one is prosecuted for violating a treaty, one can defend using a treaty. Specifically, the Inter-American Convention Against Corruption which would bar prosecutors from bribing witnesses (ala Singleton), as "Treaty Standards" supercede "Statutory Standards" of statutory application. The Supreme Court's jurisprudence on treaties has been straight as an arrow since Missouri v. Holland (1920). As Executive Order 13107 commands all federal officers to "fully implement and respect" all human rights treaties, prosecutors cannot escape the broad sweep of the Convention's definitions. As the conspiracy statute was the "darling" for the prosecutor, the "Inter-American Convention Against Corruption" ("Corruption Convention") will become the the darling for the defense. Knowing violation of a treaty's provision is suppression of the evidence, e.g. co-defendant's testimony for a lenient sentence, perjured or not.

Under "Treaty Standards" how would the retroactivity issue stand muster? It would be retroactive as treaties are the "Supreme Law of the Land" and cannot be played with in the appellate courts under the guise of "Statutory Standards" in applying the treaty provisons.

The issue of "executing" or "non-executing" treaties is not relevant as everyone has a "positive right" for federal officers to perform the "discretionless obligations" treaties imposed on them via E.O. 13107.

I have this issue fully bried on suppressing codefendant testimony for receiving a "thing of value" in the form of a lenient sentence. I am willing to make it available to some courageous soul.

Greetings and Peace,

Douglas

Posted by: Douglas Carpa | Aug 12, 2005 3:13:05 PM

I am an attorney who has spent most of his career in ministry.

How do I reach Doug Carpa so I can subscribe to his new magazine, Prison Living Magazine?

Thank you.

Posted by: Mack | Dec 8, 2005 12:05:33 AM

My father is currently serving a life-without -parole sentence for his 3rd drug charge. He needs Blakely to apply retroactively to his case in order to be released. He has been in prison since 1991, the punishment does not fit the crime. This is direct disobedience to the 8th amendment of our "so-called" constitution.

Posted by: adam Hudacek | Oct 5, 2006 1:18:35 PM

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Posted by: | Oct 14, 2008 8:12:21 AM

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