Friday, December 15, 2006
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.
- 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.
Thursday, December 14, 2006
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.
Tuesday, November 07, 2006
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.
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:
Monday, November 06, 2006
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.
Monday, October 30, 2006
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.
Some related posts on Blakely retroactivity:
Friday, October 27, 2006
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.
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.
Wednesday, October 04, 2006
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:
Monday, September 11, 2006
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:
Tuesday, August 29, 2006
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."
Related posts on Burton:
Tuesday, June 06, 2006
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.
Monday, June 05, 2006
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.
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.
Tuesday, January 10, 2006
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.
Friday, December 09, 2005
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.
Saturday, December 03, 2005
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 continue to address the important retroactivity issue. As previously detailed here, my terrific research assistants has an article in the Ohio State Law Journal entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." And now I have seen two other similar efforts:
- The Cardozo Law Review's latest issue includes a student note entitled "Is Blakely v. Washington Retroactive?" by Haifeng Peng. Available here, the article argues that Blakely should be found retroactive on a number of theroies.
- The Wisconsin Law Review's forthcoming issue includes a Comment entitled "Reasonable Doubt in the Rear-View Mirror: The Case for Booker/Blakely Retroactivity in the Federal System" by Nic Eichenseer. I have kindly been given permission to make the article available here: Download blakely_retroactivity_eichenseer_final_wpermission.doc
I wonder what might happen if every defendant subject to unconstitutonal judicial factfinding whose sentence was final before Blakely and Booker were to file habeas petitions with all three of these articles attached.
Thursday, November 10, 2005
Is SCOTUS soon to take up Booker retroactivity?
Over at SCOTUSblog, Lyle Denniston has this extended post which raises the possibility that the Supreme Court may be seriously contemplating granting cert on a case which raises the issue of Booker's retroactivity. Lyle's post effectively walks through the basic legal issues, and here is his reason for thnking the Justices may be interested in this matter:
A case directly raising the retroactivity issue, Clark v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court's public docket. The Court has asked for, and received, a response from the Solicitor General. At least ten other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those ten, too, are scheduled for the Nov. 23 Conference, according to the docket.... [T]he fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.
I will be (quite) pleasantly surprised if the Court decides to take up this issue, even though I am (quite) certain that all the issues relating to Apprendi, Blakely and Booker retroactivity need to be conclusively resolved ASAP.
Notably, as discussed in a series of recent posts (here and here and here), the Court did recently grant cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis. Perhaps four Justices have decided that this Term is the time to sort out all the "backward-looking" questions about how to handle cases sentenced before Blakely and Booker in violation of the constitutional rules established in those cases.
For a lot more discussion of these issues, check out this category archive which collects my recent posts on Blakely and Booker retroactivity. In addition, for more thoughtful scholarly coverage of many retroactivity stories and angles, be sure to check out my terrific research assistant's forthcoming Ohio State Law Journal note entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions."