Sentencing Law and Policy

Hawaii still dealing with Apprendi fix and fall-out

This local article reveals how long it can take for certain matters to make their way from the Supreme Court in DC all the way out to Hawaii:

State courts can resentence convicted felons to extended prison terms under a new law enacted just last year for cases dating to the year 2000, according to a state appeals court ruling issued last week.  The ruling by the state Intermediate Court of Appeals upholds the constitutionality of Act 1, which brings Hawaii sentencing statutes in line with recent U.S. Supreme Court orders and rulings.  The effective date of the law is retroactive to 2000, when the high court issued a ruling in a New Jersey case.

The new law requires juries to determine whether a convicted felon is eligible for a prison term longer than what is normally allowed, based on the danger he poses to the public.  Previously, judges made that determination....

"We're happy with the ICA ruling, and it is our hope that the Supreme Court will see the issue similarly," said state Attorney General Mark Bennett. Oral arguments are scheduled for today. Public Defender Jack Tonaki said there already is a case that raises the same or similar issues pending before the Hawaii Supreme Court.

A vehicle for addressing Booker retroactivity (and Teague)

I received today a copy of a cert petition flagging another set of interesting sentencing-related issues for the Supreme Court.  The petition (which can be downloaded below) was filed in Soto v. US, and raises questions about the applicability to Teague and the retroactivity of Booker.  Here are the questions presented from the petition:

1. Does the retroactivity test applied in habeas corpus challenges to state judgments of conviction, as set forth in Teague v. Lane, 489 U.S. 288 (1989), limit the availability of relief on a motion under 28 U.S.C. § 2255 asserting that a federal sentence must be corrected due to error under United States v. Booker, 543 U.S. 220 (2005)?

2. If Teague is applicable, did Booker announce a "watershed rule" of criminal procedure in holding that sentences imposed under the mandatory United States Sentencing Guidelines are constitutionally infirm unless every fact essential to sentence was proved beyond a reasonable doubt?

Download soto_petition_with_appendix.pdf

Some related SCOTUS posts:

• A big SCOTUS sentencing Term in the works?
• Amazingly interesting case for Fed Courts law geeks (like me)
• When will SCOTUS address the constitutionality of the death penalty for child rape?
• Serious SCOTUS sentencing fun soon to begin
• Apprendi / Blakely Retroactivity index

Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit

After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems.  And, upon further review, I am sure that the Sixth Circuit's work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants.  Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition.  But federal practitioners will understand from these excerpts what Nichols could mean:

Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range.  Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing....

We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself.  In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.

For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker.  Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).

When will SCOTUS address Booker retroactivity?

Amidst lots of thoughtful sentencing work by Sixth Circuit judges recently (examples here and here), Judge Martin's dissent in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here) stands out as an extraordinary tour de force making the case for Booker retroactivity. 

As highlighted before, Judge Martin effectively documents that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  And this closing flourish from Judge Martin's opinion reminds me why the the Apprendi-Blakely five (or Cunningham six) might possibly be moved by arguments for Booker retroactivity:

[T]he Apprendi line of cases means much more than how long the government can send a defendant to jail — it speaks volumes about how we, as a democratic society, are able to follow the strictures that represent the very backbone of our legal and Constitutional system.  Apprendi and its offspring — Blakely and Booker — recognize a critical, constitutionally mandated check on the sentencing process, through the grounding of sentencing determinations in facts that have been proved to the jury beyond a reasonable doubt.  Our modern federal judiciary has been reluctant to recognize this Sixth Amendment limitation, probably due to the primacy of the mandatory sentencing guidelines that has been ingrained in our approach to sentencing for seventeen years.  Although this is an innate and natural way for anyone to think, federal judges included, our personal experience over seventeen years clearly must take a backseat to the fundamental guarantees of the centuries-old Bill of Rights, with the benefit of the Supreme Court's reinvigoration of these values through Apprendi and its progeny (i.e. Booker).

For various reasons, the Valentine case appears to present a particularly good vehicle for the Supreme Court to consider Booker retroactivity issues.  I hope the defendants in Valentine will seek cert, and I hope the Justices and their clerks recognize that these issues merit a place on the court's ever-shrinking docket.

Thoughtful work from the Sixth Circuit on Booker retroactivity

Continuing its tradition of thoughtful (and often divided) post-Booker work, the Sixth Circuit today in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here), has an extended discussion of Booker retroactivity issues.  Valentine holds, in a 2-1 opinion, that Booker is not retroactive. 

Judge Martin dissents in a terrifically interesting opinion which, among other insights, highlights that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  Here is one of many thoughtful parts of Judge Martin's dissent:

These quotations clearly reveal that the standard new rule inquiry and its reference to opinions of reasonable jurists is largely based on concerns with federalism and comity, and demonstrates deference to reasonable state court interpretations of the law.  Even where the “reasonable jurists” to whom we look for guidance are federal judges, their opinions can serve as a proxy for whether a similar state court decision was reasonable.  So long as state courts are applying Supreme Court case law in good faith, there is diminished justification for burdening their quasi-sovereign judicial machinery with the retroactive application of new rules in cases that have become final.

In a section 2255 case, however, where comity and federalism are irrelevant, there is much less need to defer to the divergent views of federal judges who, in hindsight, did not correctly apply existing precedent to a new case.  We are, after all, members of inferior courts established by same sovereign (unlike state court judges), and if the Supreme Court says we were wrong, we should take our medicine and gladly apply the correct rule retroactively, rather than clinging to vacated misapplications of the law to prove that a Supreme Court rule is “new” (which conveniently allows us to convince ourselves that we could not have been wrong in the first place).

DC Circuit rejects Booker retroactivity (and suggests Blakely might be watershed?)

The DC Circuit today in In Re: Fashina, 06-3002 (DC Cir. May 11, 2007) (available here) rejects a Booker retroactivity claim (after working through some complicated AEDPA issues).  Since no court ever decided that Booker was retroactive, this is not big news.  However, Fashina has an extended discussion of whether Booker might qualify as a "watershed rule" exception under Teague which perhaps hints that the reasonable doubt part of Blakely might be fully retroactive.  Here is the passage that especially caught my attention:

[W]e share [the defendant's] premise about the foundational role of the reasonable doubt standard of proof in criminal cases. [Long quote from In re Winship, 397 U.S. 358, 363 (1970)].... We also note that Winship was made retroactive, albeit prior to the Court's setting the current standard for retroactivity in Teague.  See Ivan V. v. City of New York, 407 U.S. 203, 204-05 (1972).

Important as the reasonable doubt standard no doubt is, our task is to determine whether Booker works so "sweeping and fundamental" a change in its application as to constitute a watershed rule.

Big retroactivity SCOTUS development?!?

Minutes after I finish this playful SCOTUS post, I discover this thoughtful post at SCOTUSblog entitled "Court to study scope of Teague retroactivity."  The report by Lyle Denniston details a notable retroactivity briefing request from the Court.  Here are the basics from Lyle:

The Supreme Court indicated on Tuesday that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question.

Here is how the Court phrased its inquiry in the pending case of Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" (emphasis added).

In other words, the Court seems prepared to explore (only two decades after Teague) response whether state courts are bound to apply Teague in state-court collateral attacks.   

As Lyle details, the Danforth case is focused on a Crawford issue.  But, this obviously could become a significant issue in efforts to apply Blakely (or even Apprendi) retroactivity.  Indeed, a thoughtful reader e-mail this reaction to this development: "If they take up a Blakely retroactivity case too, then that will pretty much nail down, one way or the other, the state of Blakely retroactivity."

Can Bockting be read to support Apprendi and/or Blakely retroactivity?

As suggested here, and by commentors, it is not easy for sentencing fans to reader Bockting's discussion of Crawford's non-retroactivity under Teague and wonder what this all might mean for Apprendi and/or Blakely.  My quick take is that I see nothing in Bockting that would seem to undermine the arguments that Blakely may at least be retroactive to Apprendi and that the burden-of-proof aspect of Apprendi might be "watershed" and thus fully retroactive.  In fact, for reasons developed in some old posts linked below, I one might even mine passages in Bockting to try to enhance the argument for at least some measure of Apprendi and/or Blakely retroactivity.

Some related posts:

• Big Blakely retroactivity doings from Alaska
• Colorado Supreme Court says Blakely not retroactive
• Distinguishing finality interests between convictions and sentences
• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• The human face of retroactivity
• Seeking retroactive Blakely "Justice for All"
• More academic arguments for Blakely retroactivity

Crawford not retroactive

SCOTUSblog is reporting here that the "Supreme Court ruled on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down."  I will comment on the opinion, and on what it might mean for Blakely retroactivity, later today.  Commentors should feel free to get started ASAP.

UPDATE: Justice Sam Alito authored the Court's unanimous opinion in Whorton v. Bockting, and the Court's work can now be accessed at this link.   Notably, there are no separate opinions, and so chack one up for the consensus-interested Chief Justices.

I am sure folks eager to seek Crawford wreck havoc with old convictions are disappointed with this outcome.  But, with my sentencing blinders on, I am pleased to see the Court not use up too much of its limited political/legal/reputational capital by sending lots and lots of not-too-ugly old trials into a potential tailspin based on a confusing new rule about the application of the Confontation Clause.  (Of course, I say this hoping the Court is prepared to use its political/legal/reputational capital by sending a few ugly old sentences into a potential tailspin.)

Final(?) follow-up on Burton

Thanks to How Appealing, at this link you can read Brent Kendall's thoughtful report in the Daily Journal of California on the Supreme Court's somewhat disappointing Burton ruling yesterday.  The piece is entitled "Justices Reject 'Blakely' Follow-Up," and here is a taste:

A potentially important U.S. Supreme Court case on criminal sentencing fizzled out Tuesday as the justices announced that legal technicalities prevented them from deciding whether a landmark 2004 decision strengthening a defendant's jury-trial rights should apply retroactively....

Given the Supreme Court's interest in answering the Blakely retroactivity question, the justices could grant review in another case soon - if a good case is available to them.  Stanford University law professor Jeffrey L. Fisher, who argued and won Blakely and argued Burton's retroactivity bid, said he and others were "shaking the trees" in search of a case that raised the same issue. The court could line up another prospect soon. "It looks like the court may well have something on its docket to take a shot at this," Fisher said.

Recent related posts:

• Duck and cover from SCOTUS
• Shouldn't SCOTUS have just DIG'd Burton?

Shouldn't SCOTUS have just DIG'd Burton?

Here is a question for SCOTUS gurus: shouldn't the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?

The Court's per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:

We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review.  We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).

Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue.  (The Burton briefs can be found here.)  But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General's amicus brief did not even mention this issue.  Though I am not sure if Burton breaks any important AEDPA ground, wouldn't a truly reserved Court have just DIG'd this case rather than opine on a set of issues that were not fully briefed?   

Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate.  But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court's decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.

UPDATE:  I'm convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court's decision not to simply DIG Burton.  Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity. 

Relatedly, I think the AP's headline reporting on the Burton ruling is telling: "High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced."  I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.

ANOTHER UPDATE:  In you really dig DIGs, be sure to check out a recent article just brought to my attention:  Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.

Duck and cover from SCOTUS

As detailed here by Lyle Denniston, the Supreme Court today issued two opinions in criminal cases that managed to avoid the merits of seemingly important questions.  Here is Lyle's early report:

[T]he Court declined to rule on the question of whether the sentencing decision in Blakely v. Washington in 2004 is to be applied retroactively in federal habeas cases.  The Court found in Burton v. Stewart (05-9222) that the state prisoner in the case had failed to comply with the "gatekeeping" requirements of federal habeas law, so the District Court had no jurisdiction in the case. The Court issued the decision in an unsigned opinion; there were no dissents.

In a ... final ruling of the day, in U.S. v. Resendiz-Ponce (05-998), the Court declined to decide the issue it had agreed to hear -- that is, whether failure to include in a criminal charge an element of the offense can ever be excused as "harmless error."  The Court found that the indictment in this case was not defective, so it need not reach the granted question.  Justice John Paul Stevens wrote the opinion for an 8-1 Court. Justice Scalia dissented.

Updates with substantive comments will follow once I have a chance to consume these efforts.  But first I cannot help but scratch my head about --- and critically assail --- how poorly the cert. pool seems to be operating in the Roberts era.  Since Blakely was decided in 2004, many dozens (perhaps many hundreds) of state defendants have sought cert on the decision's retroactivity.  With plenty of different possible vehicles, the Justices managed to pick a case (Burton) one with a procedural headache that has now further delayed the resolution of an important issue.

More Kerr on Carrington and mandate recall discretion

I am very pleased to see that Orin Kerr here has jumped back into the debate over the Ninth Circuit panel's Carrington ruling, and his long post sharpens the issue effectively while also spotlighting key aspects of the Supreme Court's discussion of mandate recalls in Calderon v. Thompson, 523 U.S. 538 (1998) (available here).   Orin views Carrington "like a replay of Thompson," but I think Carrington is very different for some reasons I have already discussed here.

To begin, Thompson says "courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."  Later on, after a review of the bizarre procedural history of the case, the ruling stresses that "Thompson's is not an ordinary case ... because he seeks relief from a criminal judgment entered in state court."  The ruling heavily stresses both federalism and habeas concerns in its discussion of finality, and yet still suggests that the Ninth Circuit's mandate recall might still have been proper to "avoid a miscarriage of justice" concerning the legality of the applicable sentence. 

Moreover, the dissent in Thompson (per Justice Souter garnering four votes) suggests the general principle of giving "a high degree of deference to the court exercising discretionary authority" to recall its mandate; it also suggests "that deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion."  I do not think the majority in Thompson disputed these basic principles about reviewing a circuit's decision to recall its mandate, they just viewed the Ninth Circuit exercise of its discretion in Thompson as abusive.

Once again, I certainly can see why the full Ninth Circuit en banc might not agree with the Carrington panel's assessment of "extraordinary circumstances."  And I suspect the Justice Department will seek (and secure?) en banc review.   But, as Orin notes, the Justice Department apparently did not even appeal Carrington's precursor ruling from the Ninth Circuit.  Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

Related posts:

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Distinguishing finality interests between convictions and sentences

UPDATE:  A helpful reader suggested I clarify the reality that the huge Ninth Circuit "doesn't sit en banc. Instead, they create 11-judge panels. Circuit Rule 35-3."

A CORRECTION: Another reader has reminded me that the Ninth Circuit this year changed to 15-judge panels for its en banc hearings.

Distinguishing finality interests between convictions and sentences

As I await more responses to why the Ninth Circuit's Carrington ruling should be troubling (query here), let me spotlight key distinctions between finality interests regarding convictions (especially state convictions) and regarding sentences (especially federal sentences).  These distinctions are, in my view, critical to a complete understanding of the dynamics of retroactivity doctrines.

Teague, the 1989 SCOTUS case defining modern retroactivity doctrine, was about whether and when a new federal constitutional rule ought to disrupt final state convictions.  Structural concerns about finality are at their zenith here or else every long-ago convicted state defendant (even those who finished their sentence decades before) might run to federal court seeking to have a long-ago conviction wiped off the books.

Carrington, in sharp contrast, concerns whether a new federal constitutional rule ought to allow reconsideration of a federal sentence still being served.  One might argue that there are no finality concerns because the on-going sentence under challenge is not final.   Moreover, the result of the challenge won't wipe out a long-ago conviction, it will only (perhaps) alter an on-going sentence.

Some recent capital rulings help put the conviction/sentencing distinction in sharp relief.  After Atkins and Roper declared certain defendants ineligible for the death penalty, few asserted that we should still execute all the now-ineligible death row inmates that were sentenced to death before these rulings.  If "sentence finality" is so important, we should still be execute all the mentally retarded and juvenile capital defendants sentenced before Atkins and Roper.

What wrong with equitable Booker retroactivity in the Ninth Circuit?

Last year, after a Ninth Circuit panel in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), recalled its mandate to allow resentencing in a case that became final before Booker, I suggested that the court was essentially adopting "a policy of equitable Booker retroactivity."  And now, with the fascinating decision in Carrington v. US, No. 03-30263 (9th Cir. Dec. 13, 2006) (available here), that policy takes on new and broader life in the Ninth Circuit.

Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too.  But why?  Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful. 

What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?

Of course, finality is an important value, but this value is always balanced against other values.  If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?   

This issue would be a lot different if the Ninth Circuit were overturning long-ago state convictions based on its own questionable view of constitutional rules.  But, in Carrington, the Ninth Circuit is merely allowing reconsideration of on-going federal sentences based on the Supreme Court's constitutional rules.  Perhaps the Ninth Circuit en banc will seek to balance federal sentencing fairness and finality differently than the Carrington panel majority; but I do not see why the Supreme Court should be eagerly interested in keeping a federal district court from having a chance to reconsider an unconstitutional (and still on-going) federal sentence.

UPDATE: I fill out my perspective on Carrington in this post and in the comments, but I want to further address one commentor's concern that the Ninth Circuit has created a doctrine that unfairly turns on whether a "defendant [was] lucky enough to draw a vocal opponent of the Guidelines."  I share this worry, though it was not often expressed as a critique when this was the standard being used by most circuits when addressing Booker plain error.  In the 1st, 5th, 8th, 10th and 11th Circuits, defendants still on direct appeal would not get a chance to be resentenced right after Booker unless the district judge had been "a vocal opponent of the Guidelines."  (And, of course, the Supreme Court denied cert on all those defendants objecting to this rule.)

Why are folks worried about unequal justice when it might help some defendants, but not when it hurts them?  To paraphrase a famous quote from Justice Brennan, I wonder why we fear too much justice.

Oral argument in Burton retroactivity case

Now the Supreme Court oral argument transcript in Burton v. Stewart is available online at this link.  Once again I will update this post if/when any parts jump out as extra significant, and readers should feel free to use the comments for this purpose.  Also, the National Appellate Journal's on-line blog edition has these helpful summaries of both James and Burton along with links to the transcripts.

UPDATE: This AP report on the two arguments in the Supreme Court today has this telling lead to set up its discussion of Burton:

The Supreme Court was asked Tuesday to lop 21 years off the 46-year sentence of a Washington state man for raping a teenager, in one of two cases the court dealt with involving long prison terms.

I am pretty sure the question presented in Burton technically was not "Should this Court lop 21 years off the 46-year sentence of a Washington state man for raping a teenager?"  But as well all know, in the media, if it bleeds it leads.

Early report on Burton

Over at SCOTUSblog, Lyle Denniston has this early report on today's Burton argument.  Lyle's report suggests that Burton may become a major ruling on habeas law rather than a major ruling on the meaning of Blakely and Apprendi.  We should have a transcript later today so we can see first-hand how the Justices are approaching this case.

Going retro...

As noted here, today the Supreme Court this morning will hear arguments in Burton v. Waddington, the case addressing Blakely retroactivity.  Kent Scheidegger here at Crime & Consequences points to this Criminal Justice Legal Foundation press release explaining why he is hoping for a decision that will "prevent the retroactive application of Blakely." 

Because I am a big fan of Blakely, I believe justice is served by not completely shutting out defendants from Blakely claims just because it took the Supreme Court a long time to finally and fully develop Apprendi/Blakely principles.  That said, I would be quite concerned about the impact of Blakely retroactivity if the Supreme Court last term in Recuenco had indicated that Blakely errors required automatic reversals.  But since Blakely errors can (and surely often will) be subject to harmless error analysis, I am rooting for the Supreme Court to give Blakely some retroactive application.  But I am not betting on it.

Some related posts on Blakely retroactivity:

• Big Blakely retroactivity doings from Alaska
• Read all the Blakely retroactivity SCOTUS arguments
• Colorado Supreme Court says Blakely not retroactive
• Apprendi/Blakely Retroactivity category archive

Super (sentencing) Tuesday

Even though even this blog has been overtaken by election fever (see posts here and here and here), the real excitement on Tuesday for sentencing fans is in the Supreme Court.  Fortunately, SCOTUSblog has posts to keep everyone up on the sentencing excitement at the High Court tomorrow.

This post discusses the issues in James v. United States (No. 05-9264), which asks "whether the Eleventh Circuit erred in ruling that a prior conviction for attempted burglary under Florida law qualifies as a 'violent felony' under the federal Armed Career Criminal Act."  This post discusses the issues in Burton v. Waddington (05-9222), which "considers whether to make retroactive, to earlier cases, its 2004 decision in Blakely v. Washington." In his post on Burton, Lyle Denniston astutely notes  that "a good deal of the argument Tuesday may focus on just how vital the reasonable doubt standard is to guaranteeing fair criminal trials."

I am very much looking forward to having same-day transcripts from James and Burton to keep me occupied while we await firm election results Tuesday night.

Reply brief in Burton on Blakely retroactivity

I just received a copy of the petitioner's reply brief Burton v. Waddington, the case to be argued next week concerning Blakely retroactivity.  Available for download below, here is how it begins:

The consistent theme running throughout the State's brief — as well as its amici's — is a persistent refusal to come to grips with this Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).  The State suggests that Blakely was not dictated by Apprendi because Apprendi left the meaning of "statutory maximum" unclear.  But the State simply ignores the passages in Apprendi that specifically and repeatedly elucidated the "statutory maximum" concept so as to foreordain the result in Blakely.  Furthermore, the State insists that Blakely — even if it did produce a new rule — did not produce a watershed rule because the decision deals only with sentencing offenders "whose guilt already has been determined." Resp. Br. 34.  But the State ignores that the fundamental point of Blakely, like Apprendi before it, is that courts may not sentence defendants for transgressions for which juries have not found them guilty.  Once the real meanings of Apprendi and Blakely are taken into account, it is clear that the Teague doctrine does not bar Petitioner from seeking relief in this case. And none of the side issues that the State raises prevents this Court from so holding.

Download burton_v_waddington_reply_brief_for_the_petitioner.pdf

Some related posts on Blakely retroactivity:

• Big Blakely retroactivity doings from Alaska
• Read all the Blakely retroactivity SCOTUS arguments
• Colorado Supreme Court says Blakely not retroactive
• Apprendi/Blakely Retroactivity category archive

Big Blakely retroactivity doings from Alaska

Continuing its amazing work as the Blakely frontier, today in Smart v. State, No. A-9025 (Alaska Ct. App. Oct. 27, 2006) (available here), the Alaska Court of Appeals issued an opinion regarding Blakely retroactivity.  Here's a summary as reported to me by a helpful reader:

The court held that it was not bound by the federal Teague standard and was free to apply state retroactivity standards, and applying state retroactivity law found Blakely fully retroactive in a 97-page opinion (counting concurrences and dissents).  The state will likely seek discretionary review from the Alaska Supreme Court.

WOW!

UPDATE: I have now had a chance to give Smart a quick read, and the main opinion's exegesis of Teague is especially impressive and its citation to wikipedia is especially amusing.  All the separate opinions are also great reads.

Read all the Blakely retroactivity SCOTUS arguments

We are now only a week away from SCOTUS arguments in Cunningham, the big case about Blakely's application to California's structured sentencing system (background at this category archive).  But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

Thanks to Kent Scheidegger providing this post at Crime & Consequences and this link, everyone can now easily access all of the briefs filed so far in Burton.  In an e-mail, Kent noted that the Criminal Justice Legal Foundation's amicus brief at pages 14-15 cites to my very first post about Blakely as evidence that Blakely announced a new rule.  (Not surprisingly, the CJLF brief does not highlight that I might consider Blakely a watershed rule under Teague even if it does qualify as new.)

There is a lot of heavy lifting in all these briefs, but I hope to comment at length about the arguments being made in Burton, and the broader realities of Blakely retroactivity, as the oral argument date (Noember 7) approaches.

Related posts about Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?
• Top-side brief in Burton, the SCOTUS Blakely retroactivity case
• Apprendi/Blakely Retroactivity category archive

Colorado Supreme Court says Blakely not retroactive

As noted here, the one major lower court ruling that Blakely was to apply retroactively to Apprendi came from the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (Col. App. Apr. 7, 2005).  Today, the Colorado Supreme Court reversed the Court of Appeals' Johnson opinion in and ruled that Blakely is not to be applied retroactively.  The opinion, available here, has this official summary:

The Supreme Court granted certiorari to review the court of appeals' holding that the rule in Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively to cases that were pending on direct review when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The court of appeals vacated Respondent Robin Johnson's sentence because Johnson's case was pending when Apprendi was decided. 

The Supreme Court reverses the court of appeals, holding that Blakely announced a new constitutional rule of criminal procedure that does not fall under the exception to the general rule of nonretroactivity of new procedural rules.  Therefore, the Blakely rule only applies to cases that were pending on direct review at the time that Blakely was decided.  Respondent Johnson's conviction was final when Blakely was announced and consequently Johnson is not entitled to the benefit of the Blakely rule.

Of course, the US Supreme Court is due to hear this exact issue this coming Term in Burton v. Waddington.  The posts below provide lots of background on Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?
• Top-side brief in Burton, the SCOTUS Blakely retroactivity case
• Apprendi/Blakely Retroactivity category archive

Top-side brief in Burton, the SCOTUS Blakely retroactivity case

As detailed in posts linked below, the Supreme Court this Fall will consider Blakely's retroactivity in Burton v. Waddington. (For lots of background on retroactivity issues, I have this category archive cleverly titled "Apprendi/Blakely Retroactivity.")  Though the argument in Burton is not until November, I just received a copy of the brief filed today by the petitioner.  This brief is available for download below, and here are snippets from the summary of argument:

The retroactivity doctrine established in Teague v. Lane, 489 U.S. 288 (1989), does not bar applying this Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), to Petitioner's habeas corpus claim.

I. The Teague doctrine applies only to decisions that announce "new rules" of criminal procedure, not to those that are "merely an application of the principle that governed" a prior Supreme Court case.  The Blakely decision falls into the latter category....

II. Even if this Court were to hold that Blakely did somehow announce a "new rule," its rule would apply retroactively under Teague's exception for "watershed rules of criminal procedure."

Download burton_opening_merits_brief_final.pdf

Related posts on Burton:

• Supreme Court to take up Blakely retroactivity!
• The cert briefs in Burton
• Could they, would they, should they ... declare Blakely retroactive?

Press coverage of cert grant in Burton

The MSM has just a little coverage of the cert grant in Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here).  The AP provides this (slightly inaccurate) description of main issue in Burton, and this local story from the Seattle Post Intelligencer provides more background about the facts in the case.

Along with others with whom I have spoken, I continue to scratch my head about why the Supreme Court chose Burton as the case to address Blakely retroactivity.  Perhaps the extent of the Blakely-violative enhancement (which produced a 20-year sentence increase) caught the Justices' attention, or perhaps they just wanted to take yet another case from Washington.  Whatever the reason for taking Burton, it is going to be a Blakely SCOTUS fall with both Burton and Cunningham coming up for argument.

The cert briefs in Burton

Thanks to a couple of kind readers, I now have copies of the cert briefs from Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here).  Relatedly, federal public defender David Porter has some advice for practitioners at the Ninth Circuit Blog:

With this cert. grant and the Court's earlier grant in Whorton v. Bockting (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.

Download burton_petition.pdf

Download burton_brief_in_opp.pdf

Download burton_reply_cert.pdf

Could they, would they, should they ... declare Blakely retroactive?

I am not sure what I consider more fun right now: speculating why exactly the Supreme Court has decided to take up in Burton v. Waddington the issue of Blakely retroactivity in the absence of any real lower court split (basics here) OR speculating whether the Court has the cohones to declare Blakely retroactive.  Bright commentors are already thinking through the merits here, though they make the common mistake of overlooking that Schriro (concerning Ring's retroactivity) only considered the judge/jury aspect of factfinding, and not the additional burden of proof issue.  Also, recent changes in personnel make every Blakely-related Justice head-count different now.

Way back when, I did a lot of coverage of Blakely retroactivity issues, and most of my major posts on the topic can be found in this category archive.  Here are some highlights for those now eager to read up on this issue:

• Thoughts and holdings on Blakely retroactivity
• Thoughts on Retroactivity and Clemency
• More on Blakely's retroactivity
• Retroactivity contrasts and contentions
• Washington Supreme Court declares Blakely not retroactive
• Ninth Circuit says Blakely not retroactive
• The human face of retroactivity
• Seeking retroactive Blakely "Justice for All"
• More academic arguments for Blakely retroactivity

Supreme Court to take up Blakely retroactivity!

Though I was prepared for the big SCOTUS sentencing news to emerge from new opinions, instead the news comes from a cert grant.  As reported here at SCOTUSblog:

The Court also agreed to hear a case on the retroactivity of its ruling in Blakely v. Washington, one of a series of rulings limiting criminal sentences when facts have not been found by a jury, but by a judge.  The new case is Burton v. Waddington (05-9222). The case tests whether Blakely established a new rule and, if it did, whether it applies retroactively. The Court's grant of review of these issues was something of a surprise, since the Court has repeatedly refused to hear retroactivity claims on the Apprendi line of cases.

One of many ironies here, of course, is that Blakely retroactivity is one of the few major post-Blakely issues that has not generated much of a lower court split in the states or in the federal system.  Nevertheless, this issue has long been on my list of post-Blakely issues that SCOTUS should resolve.  And I am, of course, please to see SCOTUS take my advice to fill its fallow docket with Blakely and Booker issues.

Right now, I know nothing about the particulars of Burton v. Waddington except that it comes from the Ninth Circuit.  Readers are encouraged to fill me in, and I'll be doing a bit of my own digging. Good thing I already have this Apprendi/Blakely Retroactivity category archive collecting my posts on this topic.

DC Circuit weighs in on Booker retroactivity issue

The DC Circuit today in In Re: Zambrano, No. 05-3106a  (D.C. Cir. Jan 10, 2006) (available here), had an opportunity to talk about Booker retroactivity in the habeas context.  Here is the introduction and conclusion to the careful and clear opinion:

Regulo Zambrano applies for leave to file a second motion to vacate his criminal sentence pursuant to 28 U.S.C. § 2255, contending that the sentence is unconstitutional under United States v. Booker, 125 S. Ct. 738 (2005).  We cannot authorize the filing, however, because the Supreme Court has not made Booker retroactive to cases on collateral review....

For these reasons, we conclude that Booker is not a new rule of constitutional law "made retroactive to cases on collateral review by the Supreme Court" within the meaning of 28 U.S.C. § 2255.  In so holding, we join all of the circuits that have considered the question.  The application for leave to file a second § 2255 motion is denied.

Fifth Circuit officially rejects retroactive application of Booker

The Fifth Circuit has, through its decision in US v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005) (available here), joined circuit bandwagon in declaring that Booker is not to be applied retroactively.  Providing a thorough analysis of all the basic doctrinal issues (but not acknowledging any academic commentary to the contrary), the Gentry court ends its analysis with this concluding paragraph:

In In re Elwood, we held that Booker may not apply retroactively to cases on collateral review for purposes of a successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005).  Now, we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions. Because we hold that Booker does not apply retroactively to Gentry's motion, Appellant's motion fails.

A final footnote in Gentry cites to similar decisions from the 2d, 3d, 6th, 7th and 11th Circuits.  I also believe that the 4th, 8th, 9th and 10th Circuits have also formally rejected claims for Booker retroactivity.  I wonder how much longer we will have to wait for the last non-retroactivity shoes to drop from the 1st and DC Circuits.

More academic arguments for Blakely retroactivity

Though the Supreme Court seems to be in no rush to address Blakely or Booker retroactivity (details here) student scholars contin