Tuesday, August 16, 2005
Interesting dissenting discussion of Blakely retroactivity
A consistently helpful reader has pointed me to interesting comments concerning Blakely's retroactivity in a recent dissent from the Ninth Circuit's refusal to rehear, en banc, a panel decision in Bockting v. Bayer that Crawford is entitled to retroactive application. Authored by Judge O'Scannlain and joined by eight other active judges, this dissent (available here) complained that Blakely is far more fundamental and important to accuracy concerns than Crawford, and yet Blakely was recently held by the Ninth Circuit not to apply retroactively:
Crawford's rule does less to decrease the chance of an inaccurate conviction than many rules that have been held not to apply retroactively. Most recently, in Schardt v. Payne, 2005 U.S. App. LEXIS 13569 (9th Cir. 2005), we refused to give retroactive effect to Blakely v. Washington, 124 S. Ct. 2531 (2004), which invalidated state sentencing guidelines that increased a defendant's sentence based on facts found by a judge by a mere preponderance of the evidence. The application of a mere preponderance standard instead of the reasonable-doubt standard required by Blakely surely increases the likelihood of inaccurate criminal punishment more than the admission of evidence under the Roberts test did. [FOOTNOTE 2] Cf. Ivan V. v. City of New York, 407 U.S. 203, 204 (1972) (per curiam) ("[T]he reasonable-doubt standard is a prime instrument for reducing the risk of convictions resting on factual error." (quoting In re Winship, 397 U.S. 358, 363-64 (1970)); id. at 205 ("[T]he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect."). If even the standard-of-proof aspect of Blakely does not satisfy the Teague test, I do not see how Crawford can do so.
[FOOTNOTE 2] Of course, Blakely relates to the accuracy of sentences, not underlying convictions. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (relying, in part, on that difference in holding Apprendi not to apply retroactively). I do not see how the difference can be material, though, when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as elements of a crime when they increase the defendant's maximum sentence. Moreover, the Supreme Court has not distinguished between sentences and convictions when applying Teague; rather, it has implied that a watershed rule could be retroactive under Teague if it "seriously diminish[ed] the likelihood of obtaining an accurate determination in [a] sentencing proceeding." Graham v. Collins, 506 U.S. 461 (1993) (first alteration in original) (internal quotation marks omitted).
Friday, July 08, 2005
Ninth Circuit says Blakely not retroactive
The Ninth Circuit, which has a reputation of being the most defendant-friendly federal circuit, today ruled in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (available here), that Blakely is not to be applied retroactively. Especially since the Ninth was the circuit which had declared Ring retroactive (a ruling subsequently reversed by the Supreme Court), this decision has to be seen as a major blow to all those hoping for retroactive Blakely relief. Here is the decision's opening paragraph:
We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication. We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.
Friday, June 17, 2005
Washington Supreme Court declares Blakely not retroactive
As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced." The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.
The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely. And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:
As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition. But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that. What can I do but concur in the decision of our majority?
Thursday, June 02, 2005
Florida Supreme Court allows capital jury override despite Ring
A helpful reader pointed me to an interesting death penalty decision, noted here by Abstract Appeal, in which the Florida Supreme Court holds that Ring does not preclude a trial judge under Florida's capital statutes from overriding a jury's recommendation of life imprisonment to sentence a defendant to death. Though the decision in Marshall v. Crosby, No. 02-420 (Fla. May 26, 2005) (available here), indicates that the Florida Supreme Court has previously rejected a series of challenges based on Ring, I get the impression that this is the first case considered by the court in which the sentencing judge imposed a death sentence over a jury recommendation of life.
Though all aspects of Marshall are interesting, a particularly notable aspect of the majority's opinion is its reliance on the prior conviction exception as one of many alernative grounds for its holding. And the dissent by Justice Anstead presents a particularly thorough and powerful set of arguments against the constitutionality of Florida's jury override procedure in the wake of Ring. And since Justice Anstead's dissentin Marshall has the best rhetoric, I'll quote from that opinion:
Today, we approve a practice that has now been outlawed in the United States by this nation's highest court, the imposition of the death penalty by a single judge in the face of a jury finding that the circumstances of the case do not support a sentence of death and require a life sentence. Because this outcome essentially allows a trial judge to ignore a jury's actions and direct a verdict and judgment for death in favor of the State, it is patently offensive to our constitutional notions of due process and the right to a jury trial....
Clearly, Ring was a decision meant to increase the consistency and accuracy of identifying those cases where the death penalty is warranted by requiring the facts necessary to impose the death sentence to be found by the jury. The Court's decision today flies directly in the face of the Sixth Amendment and the Supreme Court's decision in Ring. Rather than embrace the Sixth Amendment's protections and look for ways in which the role of the jury could be modified to bring Florida into line with the Supreme Court's prevailing constitutional law, the majority has effectively removed the jury from the death penalty equation. This is a sad day for constitutional law and justice in the State of Florida.
Wednesday, 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."
Wednesday, May 04, 2005
The waiting is the hardest part...
Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full." This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.
I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import. But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:
1. The validity and scope of the "prior conviction" exception. I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more.
2. The retroactive application of Apprendi, Blakely and Booker. Though nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.
3. Booker pipelines issues such as plain error. Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits. But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling. This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.
4. Blakely's applicability to restitution and other non-prison sentences. Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems. Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.
I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely). Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems. And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.
May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, May 02, 2005
Florida Supreme Court declares Apprendi is not to apply retroactively
I have been so preoccupied of late with federal sentencing stories, I have not reported on some interesting recent state cases. Perhaps the most notable of the bunch is the decision by the Supreme Court of Florida in Hughes v. Florida, No. SC02-2247 (Fla. Apr. 28, 2005) (available here), which declares, by a 5-2 vote, that "that Apprendi does not apply retroactively."
Hughes is a thoughtful decision all around, with the dissenters making an interesting argument for retroactivity based on the particulars of Florida law. But the majority is not convinced, and in the majority's opinion there is this particularly informative account of the state of Apprendi retroactivity nationwide:
We also find it persuasive that all but one of the federal courts of appeals have expressly considered the issue, albeit under a different retroactivity analysis, and not one has held Apprendi to apply retroactively. Several state courts also have considered the issue, and again not one has held Apprendi to apply retroactively. Finally, the United States Supreme Court has held that Ring, which applied Apprendi in the death penalty context, does not apply retroactively.
UPDATE: Michael Ausbrook at INCourts has this extended post discussing Hughes and retroactivity and other related issues more generally.
Monday, April 11, 2005
The human face of retroactivity
I receive an enormous amount of e-mail and snail mail from prisoners and defendants and their families. I typically cannot find time to read most of this correspondence, let alone respond thoughtfully. But this mail serves as a constant and valuable reminder of the human face of all the issues covered on this blog.
This weekend I received a prisoner letter via e-mail that was particularly compelling in its discussion of the human side of retroactivity. I obtained permission from the author to share this letter, and it can be downloaded below. I most recently posted here about the doctrine of retroactivity, but this letter spotlights the humanity of retroactivity.
Saturday, April 09, 2005
Retroactivity contrasts and contentions
As noted by Appellate Law & Practice here, the Second Circuit yesterday in Guzman v. United States, No. 03-2446 (2d Cir. Apr. 8, 2005) (available here), expressly held that Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." This ruling makes a total of five circuits, as detailed here, that have spoken to this issue — the 2d, 6th, 7th, 10th and 11th — and all five have declared Booker is not applicable to cases which became final before the decision.
But the story of retroactivity is much more dynamic than this pattern of federal circuit decisions might suggest. As spotlighted here, this past week a Colorado appellate court in Johnson decided that "[b]ecause Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced." That is, the Colorado court has concluded that Blakely is not a new rule, but rather an application of Apprendi that should be applicable to all cases not yet final in June 2000 when Apprendi was decided.
Moreover, despite the fact that no other courts, to my knowledge, have yet expressly declared Blakely or Booker retroactive, there are a number of interesting arguments being developed to support retroactivity claims. As noted previously here, a recent Harvard Law Review note, Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005), argues that the Supreme Court's decision in Schriro, which most lower courts cite to find against retroactivity, actually supports the retroactive application of Apprendi's reasonable doubt holding. A lawyer from New Jersey recently sent me a letter brief, which can be downloaded below, that builds on this article to argue that "proper application of the retroactivity test of Teague v. Lane requires retroactivity of Apprendi."
Taking a different tack, another lawyer operating in federal court has sent me a motion which argues more broadly that Teague v. Lane is simply not applicable to the question of Booker's retroactive application. That motion, which can also be downloaded below, spotlights that "the U.S. Supreme Court has never held that Teague v. Lane is applicable, either in its entirety or in part, to federal inmate's petitions under § 2255."
I have posted a lot previously about these and related retroactivity issues, and below I have linked some of my major pre-Booker posts discussing retroactivity. Also, all my more recent posts on this topic are collected at this link.
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely's retroactivity
- Pragmatism and Blakely's retroactivity
- Careful retroactivity analysis from WD of Virginia
Friday, April 08, 2005
Colorado court says Blakely retroactive to Apprendi
Providing perhaps the biggest development in a big week, I just got news that yesterday the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (col. App. Apr. 7, 2005) (available here) concluded "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's the court's analysis:
In People v. Bradbury, 68 P.3d 494 (Colo. App. 2002), a division of this court concluded that Apprendi did not apply retroactively because it "established a new rule" and "imposed a new obligation" upon trial courts. People v. Bradbury, supra, 68 P.3d at 497.
We adopt the reasoning in Bradbury and conclude that because Apprendi established a new rule which had the effect of overriding a widespread practice of allowing judges to decide facts used to aggravate sentences, Blakely's interpretation of that rule must necessarily apply retroactively to the date the rule was established. Writing for the majority in Blakely, Justice Scalia clearly limited the holding back to the date of Apprendi when he wrote: "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 124 S.Ct. at 2537.
Because Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced. We note at least two federal cases which have held that Blakely does not apply retroactively to collateral attacks against convictions. See, e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); United States v. Stoltz, 325 F. Supp. 2d 982, 987 (D. Minn. 2004). In concluding that retroactive application should be made here, we nevertheless do not apply Blakely to collateral attacks against convictions unless those convictions postdated Apprendi. People v. Dunlap (Colo. App. No. 01CA1082, Sept. 9, 2004).
Thursday, March 24, 2005
A potent argument for Apprendi's retroactivity
Because they all reach the same conclusion in the same basic way, I have not often noted the many district court rulings that Booker (or Blakely or Apprendi) is not to be applied retroactively to final cases. Also, I am often a bit peeved when some of these cases summarily rely on Schriro to support the non-retroactivity conclusion even though, as explained here many months ago, Schriro only concerned retroactive application of the jury right and not the application of the proof beyond a reasonable doubt standard.
These matters issue got my attention recently after I was alerted to a Note in the March 2005 issue of the Harvard Law Review which thoughtfully argues not only that "Apprendi's reasonable doubt holding demands retroactive application," but also that the holding in Schriro actually supports the retroactivity of Apprendi's reasonable doubt holding. See Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005).
Of course, prisoners with final convictions need to hope this Note's potent arguments capture the attention of some courts. Ever biased by my Gannett House days, I close by suggesting that the power of a Harvard Law Review Note should not be understated. After all, District Judge Young's opinion in Green, which presaged Blakely (details here), relied heavily on a HLR Note, and Justice Breyer cited an HLR comment on Blakely at the tail end of his Booker dissent.
Wednesday, March 09, 2005
Tenth Circuit addresses Blakely retroactivity
Standing out among other circuit dispositions this week is the Tenth Circuit's discussion of Blakely's retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005). The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why "Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."
The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress. Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.
UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral review. So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.
Sunday, March 06, 2005
Handling Blakely/Booker habeas headaches
In this post, I noted the judiciary's Booker-inspired request for $91.3 million in supplemental funding for the current fiscal year, and spotlighted how in this memo the Judicial Conference details its views of the cost impact of Booker. Though there are many notable features of the memo, I found especially intriguing this estimate of number of possible federal habeas actions in the wake of Booker:
It is estimated that 12,000 to 18,000 new filings could be lodged under 28 U.S.C. § 2255, attacking an original sentence and asking the district court which imposed the sentence to vacate, set aside, or correct the sentence. These filing estimates are based on the Bureau of Prisons population, reduced for the inmates who already received reduced sentences under 5K1.1 (substantial assistance departure), inmates with less than six months to serve, and inmates who received no enhancements.
If the 12,000 to 18,000 estimate is supposed to quantify the number of inmates who might seek habeas relief, this number seems quite low. There are roughly 180,000 persons in federal prison and perhaps, I would guess, another 100,000 on probation or supervised release. And even federal convicts who received a 5K1.1 departure, or have less than six months to serve, or received no enhancements based on judicial fact-finding may have a sound legal reason to try to take advantage of the Booker to reduce the time they are subject to federal supervision. That said, it is also possible, especially if the circuits continue to hold that Booker is not retroactive (as did the Seventh in McReynolds and the Sixth in Humphress), that a much smaller universe of prisoners will actually file federal habeas actions.
Of course, none of this head-counting considers the (potentially much larger) universe of state defendants who are serving sentences rendered constitutionally problematic by Blakely who may file federal habeas actions if/when they do not get relief from state courts. As detailed here and here, for example, the Hawaiian state and federal courts are now in a habeas tussle over Apprendi's applicability to Hawaii's sentencing laws.
Habeas doctrines and numbers aside, a serious commitment to Constitutional principles suggests, as I have argued here and here and here, that all three branches (and not just courts) should be concerned about the potential injustice to certain defendants who, sentenced in a manner now deemed unconstitutional, may be serving longer sentences than they legally should. I continue to think, as suggested long ago in this post, that justice would be served by developing some sort of administrative mechanism for sorting, and considering remedies for, constitutionally problematic sentences that are now final (and perhaps barring the habeas courthouse door to prisoners until they seek relief through such an administrative mechanism).
Friday, February 25, 2005
Sixth Circuit addresses retroactivity
Continuing to provide a daily supply of Booker rulings, the Sixth Circuit today in Humphress v. US, No. 03-5951 (6th Cir. Feb 25, 2005) (available here), issued its first opinion on retroactivity. The Sixth Circuit in Humphress holds that Booker "does not apply retroactively to cases already final on direct review." As has been common in many such rulings, the Sixth Circuit relies heavily on the death penalty case Schriro, which concluded Ring was not retroactive. "Schriro's reasoning applies with equal force to Booker," says the Sixth Circuit (although the court does not directly confront the fact that Schriro did not deal with the burden of proof issues, as detailed here).
The Sixth Circuit also had another (unpublished) plain error ruling today with US v. Cook, No. 02-1405 (6th Cir. Feb. 25, 2005) (available here). As is the Sixth Circuit's recent pattern, in Cook the court finds plain error and orders a remand for resentencing based on Booker.
Thursday, February 10, 2005
Judge Cassell speaks on retroactivity
I have generally avoided reporting on the significant number of district court decisions that have denied efforts by defendants to raise Blakely/Booker issues through habeas actions. But I did spotlight Judge Panner's Siegelbaum opinion, since it provided perhaps a glimmer of hope on retroactivity, and today I am inclined to spotlight Judge Cassell's effort in Rucker v. US, Case No. 2:04-CV-00914PGC (D. Utah Feb. 10, 2005) (available here) because of its thoroughness and notable dicta.
Not suprisingly, Judge Cassell, in line with the Seventh Circuit's work in McReynolds, concludes that (1) the "approach to sentencing required by the Blakely and Booker decisions is a new rule," (2) "it is a procedural rule about the allocation of fact-finding power between judge and jury and about proof beyond a reasonable doubt," (3) the "Blakely/Booker rule does not implicate fundamental fairness," and thus "the Blakely/Booker rule does not apply retroactively to Mr. Rucker (and others whose convictions became final before Blakely)."
Wednesday, February 02, 2005
The 7th Circuit speaks on retroactivity!!
With thanks to readers, I now have news that the Seventh Circuit has spoken directly to the issue of Booker's retroactivity in McReynolds v. US, 04-2520 (7th Cir. Feb. 2, 2005) (available here), and many prisoners are not going to like the news. In an opinion authored by Judge Easterbrook, the Seventh Circuit says Booker is not to be applied retroactively to cases which became final (meaning all direct appeals were concluded) before January 12, 2005. Here's some of the key language:
Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive on the point. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002) — which, like Booker, applied Apprendi's principles to a particular subject — is not retroactive on collateral review....
We held in Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi does not apply retroactively on collateral review, because it "is concerned with the identity of the decisionmaker, and the quantum of evidence required for a sentence, rather than with what primary conduct is unlawful". That, too, is equally true of Booker. No conduct that was forbidden before Booker is permitted today; no maximum available sentence has been reduced....
The remedial portion of Booker drives the point home.... District judges must continue to follow their approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. No primary conduct has been made lawful, and none of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid....
What is more, Booker does not in the end move any decision from judge to jury, or change the burden of persuasion. The remedial portion of Booker held that decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as the guideline system has some flexibility in application. As a practical matter, then, petitioners' 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. That is not a "watershed" change that fundamentally improves the accuracy of the criminal process.
We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005. That date, rather than June 24, 2004, on which Blakely v. Washington, 124 S. Ct. 2531 (2004), came down, is the appropriate dividing line; Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system.
Monday, January 24, 2005
Judge Panner works through Booker's retroactivity
In an opinion available for download below, US v. Siegelbaum, CR No. 02-179-01-PA (D. Or. Jan. 24, 2005), Senior US District Judge Owen Panner, previously famed for having found the federal guidelines structurally invalid due to the Feeney Amendment (details here), works thoughtfully through Booker's potential retroactivity. According to the summary of the decision I received from a reader, Judge Panner concluded that:
1. The district court may hear a first-time § 2255 motion now, without waiting for the Supreme Court to decide whether Blakely/Booker are retroactive. [Whether a successive § 2255 motion may be heard now is a different question, governed by different statutory language].
2. The remedy announced in Blakely/Booker (advisory guidelines) must not be confused with the constitutional violation (in specified circumstances, sentence may be enhanced only if essential facts are admitted by defendant or found by jury applying reasonable doubt standard). The latter is the "rule" for retroactivity purposes.
3. The rule announced in Blakely/Booker is a new procedural rule.
4. Existing precedent does not definitively answer whether this new rule should be applied retroactively. No inference can be drawn from the failure to discuss this issue in Booker, as the cases before the Court involved direct appeals. Shriro held that a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, but did not decide whether application of a preponderance standard, instead of a reasonable doubt standard, is an error that requires retroactive relief. Three pre-Teague cases suggest it may be, because the lesser standard of proof can significantly affect factfinding accuracy and society's confidence in the result.
5. Even if Blakely/Booker were entitled to retroactive application, Siegelbaum is not entitled to relief. The principles animating the retroactivity analysis would require that relief be limited to persons presently serving a sentence that was enhanced on the basis of contested facts not found beyond a reasonable doubt or admitted as part of the plea bargain. Only if a defendant actually disputed the facts that resulted in the sentence enhancement, and the court decided the matter against him, can the defendant show that he may have been prejudiced by application of the wrong standard of proof. Even then, a defendant would not necessarily be entitled to a reduced sentence. Arguably, he is entitled only to have the sentencing facts adjudicated under the proper standard of proof. Such questions must await another day, as Siegelbaum's petition can be resolved on other grounds.
6. Siegelbaum's guidelines range was enhanced 15 levels above the base offense level of conviction. However, he never contested the sentence enhancements, or the facts on which those enhancements were premised. He even stipulated to the sentence that was imposed. In return, the government agreed to dismiss twelve other counts against him, and to forego bringing additional charges. Siegelbaum has suffered no injustice. He received the sentence for which he bargained. Siegelbaum is not entitled to relief.
January 24, 2005 in Apprendi / Blakely Retroactivity , Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
Thursday, January 13, 2005
Quick retroactivity thoughts
Many are asking, for understandable reasons, about the prospect of Booker's retroactive application. The simple answer is that Booker does not speak to the question, and thus some future case (soon?) will have to make a definitive ruling on this issue. However, as a number of commentators have already noted, the dueling opinions for the Court seem to provide conflicting tea leaves to read.
Justice Stevens' opinion for the Court suggests the Court is just "reaffirm[ing] our holding in Apprendi" which might suggest application back to 2000, while Justice Breyer's opinion for the Court speaks of Booker as if it is a "new rule" only applicable to pending cases. Of course, even if Booker is a new rule, arguments can (and surely will) be made that this new rule fits into one of Teague's exceptions so as to be retroactive. But, as others like TalkLeft here have suggested, offenders whose convictions and sentences are final should not find much that is encouraging in Booker. And, especially since the lower courts have already been consistently resisting claims that Apprendi and/or Blakely are retroactive, I forecast a lot of litigation from, and little relief for, prisoners with final convictions.
But, as I have suggested here and here, retroactivity should not be a concern only of the courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been unconstitutionally sentenced. Indeed, I think executive and legislative officials, as well as the US Sentencing Commission, have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants who, because of judicial retroactivity doctrines, may not get relief in the courts. But this is true ivory tower wishful thinking: I would be truly shocked if anyone talks at all about providing relief for old cases (beyond what courts might order), even though in a perfect world this would be a serious topic for conversation.
Friday, December 17, 2004
Hawaii Apprendi habeas decision
Thanks to a friend in Hawaii, I can now provide for downloading the Hawaii opinion, previously noted here, of US District Judge Susan Oki Mollway in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), in which the defendant was granted a reduction of a state sentence to 20 years. Here's the opening paragraph:
This § 2254 petition presents the question of whether Kaua's extended sentence of incarceration violates Apprendi. This court concludes that Kaua's extended sentence clearly violates Apprendi, and that the extended sentence was based on an unreasonable application of Apprendi. This court therefore grants Kaua's § 2254 petition.
Sunday, December 12, 2004
Is it finally Booker/Fanfan eve?
Perhaps I should try a little reverse psychology and predict the opinion in Booker and Fanfan is not coming tomorrow. Would that lead this blog to report the opinion is coming Monday?
Whatever is going to happen tomorrow, it is fun to read again and again Milbarge's terrific 'Twas the Night Before Booker. I suppose it is also fun to read all these prior "pre-decision" posts:
- 'twas the morning before Booker?
- Here we go again
- Gearing up for Booker and Fanfan
- Booker and Fanfan pre-reading guide
And, as noted before, lots of additional posts of note and other background materials on Blakely and Booker and Fanfan can also be found on this Blakely Basics page. A wealth of other information can also be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.
UPDATE: And for an effective overview of the law and politics surrounding Blakely and Booker, this article from today's Philadelphia Inquirer provides a reader-friendly summary of the major stories of modern sentencing reform.
December 12, 2004 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Monday, December 06, 2004
Remarkable retro retroactivity reality
I reported here on a federal case with Kafkaesque qualities, but a case coming from the Illinois Supreme Court last week has a factual backdrop that perhaps not even Franz Kafka could have imagined. The case of Lucien v. Briley, 2004 WL 2743586 (Ill. Dec. 2, 2004), concerns the retroactive application of Apprendi and Blakely, and it raises some issues I recently highlighted here.
Lucien is not remarkable legally, though it does reiterate the view of the Illinois Supreme Court that Apprendi (as well as Blakely) is a "new procedural rule" that will "not apply retroactively to cases in which the direct appeal process had concluded when Apprendi was decided." But Lucien is quite remarkably factually because the lower Illinois courts had applied Apprendi retroactively in state habeas and had released the defendant from custody in December 2001. Thus, at the time of the Illinois Supreme Court's decision last week, defendant Lucien had been free for three years (after having served more than 20 years of the 60-year extended-term sentence that had been imposed based on judicial fact-finding in 1980).
Interestingly, Lucien argued to the Illinois Supreme Court that he should not be reincarcerted because "his conduct while at liberty establishes that he is rehabilitated." The Court ducks this compelling claim, even though it seems to find support in a provision of the Illinois Constitution, by remanding the case for further proceedings in the lower courts.
Based on these remarkable facts, it is interesting to speculate whether (1) Lucien might seek cert. on the Apprendi retroactivity issue (if only perhaps to try to extend his time free), and (2) whether lower courts might accept Lucien's claim that "public policy forbids reincarcerating a rehabilitated person at further public expense." But, regardless of the court happenings, this seems like a case where executive clemency could bring a close to a case which seems more appropriate for resolution in equity than at law.
Saturday, December 04, 2004
Reflections on retroactivity and constitutional responsibilities
Though courts and litigants are now working through what Blakely means for current cases, and legislatures and sentencing commissions are having to contemplate what Blakely means for future cases, an extraordinarily compelling concern — at least for a lot of prisoners and their families — is what Blakely means for past cases. (Especially during the Dickens time of year, I have come to think about the sentencing world in terms of the ghosts of Blakely past, present and future.)
I have spotlighted retroactivity issues in a number of prior posts (some of which are linked at the end of this post), but I have now added a category archive on "Apprendi / Blakely retroactivity." I suspect the doctrine and policy debate over Blakely's backward reach is just starting to heat up.
Indeed, the amazing opinions coming from the 11th Circuit yesterday in the Levy case (noted here), which address when the court will consider a Blakely claim, spotlight the complicated legal and policy issues that arise when already-sentenced defendants seek to benefit from Blakely. Judge Gerald Tjoflat's dissent from the denial of rehearing en banc in Levy is a particularly compelling opinion — and not just because it cites this blog on page 33 — and it highlights that defendants' ability to benefit from Blakely may ultimately depend more on matters of timing than matters of justice.
But, as I have suggested in a few of the posts listed below, I hope that retroactivity issues become not only the concern of courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been sentenced in an unconstitutional way. Indeed, I think executive and legislative officials have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants with valid Blakely claims who, because of judicial retroactivity doctrines, may not get relief in the courts.
I have collected and linked here some prior posts discussing retroactivity issues, and I will have more to say on these topics in coming posts:
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely's retroactivity
- Pragmatism and Blakely's retroactivity
- Careful retroactivity analysis from WD of Virginia