May 18, 2005
Third Circuit joins non-retroactivity bandwagon
The Third Circuit on Tuesday in Lloyd v. US, No. 04-3549 (3d Cir. May 17, 2005) (available here) formally joined other circuits in ruling that "the rule of law announced in Booker" does not apply retroactively "to prisoners who were in the initial § 2255 motion stage as of the date that Booker issued." Here are some key passages from the Lloyd decision's notable, though unsurprising, retroactivity conclusions:
Every court of appeals to have considered the issue has concluded that, whether denominated as the "Blakely rule" or the "Booker rule," that rule was "new."... Every federal court of appeals to have considered whether Booker's new rule constituted a "watershed rule" that would satisfy Teague's second exception has held that it does not and, thus, has held that Booker does not apply retroactively to cases on collateral review. We join those courts....
It would be one thing if we were only dealing with Justice Stevens's opinion in Booker, which held the Federal Sentencing Guidelines unconstitutional because their mandatory nature required judges to find facts that increased sentences based on a preponderance of the evidence. But in the opinion authored by Justice Breyer, the unconstitutionality of the Guidelines was remedied by excising the provision, at 18 U.S.C. § 3553(b)(1), that made their application mandatory. By creating an advisory federal sentencing regime, the Booker Court did not announce a new rule of criminal procedure that significantly increases the "certitude" or "accuracy" of the sentencing process. As the Court of Appeals for the Seventh Circuit put it, Booker was not a "'watershed' change that fundamentally improves the accuracy of the criminal process" because defendants' sentences "would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system."
May 18, 2005 at 01:06 AM | Permalink
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Doesn't this lend support to retroactivity arguments in 2254 cases, in which challenges are directed at state court sentences governed by Blakely, as opposed to 2255 cases, in which challenges are directed at Guideline sentences governed by Booker?
Posted by: Victor Haltom | May 18, 2005 6:15:15 PM
Lloyd's conviction became final prior to the decision in Blakely. I will continue to argue that even if Blakely announced a "new rule" of constitutional law in June 2004 (which I don't agree it did; I think the last "new rule" is more properly seen has having been announced in Ring in June 2003), Booker did not announce any different rule *of constitutional law* from that announced in Blakely. The Teague anti-retroactivity doctrine is concerned only with new developments in judge-made constitutional law. From this it would follow that Booker can and should apply, even on collateral attack, to a federal prisoner whose conviction became final on or after June 24, 2004, the date of the Blakely decision.
Posted by: Peter G | May 18, 2005 9:13:46 PM