Saturday, October 22, 2005
Seeking retroactive Blakely "Justice for All"
There are so many interesting stories and angles to examine when considering pre-Blakely sentences that were indisputably imposed in violation of Blakely's constitutional command. I am thus proud to be able to provide for downloading a forthcoming article which thoughtfully covers many of these retroactivity stories and angle. This article, which is authored by one of my terrific research assistants and is soon to appear in the Ohio State Law Journal, is entitled "Justice for All: Analyzing Blakely Retroactivity and Ensuring Just Sentences in Pre-Blakely Convictions." Here is the article's abstract:
In the months following the Supreme Court's holding in Blakely v. Washington, a countless number of state and federal prisoners were hopeful that their unconstitutionally imposed sentences would be revisited. For prisoners who were not given their Sixth Amendment right at sentencing, the question became — in the words of one prisoner — "Who is going to mount the vigorous and spirited campaign this cause so deserves?"
There are strong arguments to suggest that Blakely's requirement of jury fact-finding using the beyond a reasonable doubt standard of proof should be applied retroactively to cases on collateral review. Similar to Gideon, Blakely is a watershed rule of criminal procedure that implicates the fundamental fairness and accuracy of a proceeding. This result, however, is unlikely to occur. The other two branches of government must be prepared to ensure constitutionally just sentences for pre-Blakely defendants. The legislative branch should contemplate ways in which to minimize the effect a retroactive holding would have on the judiciary and should also correct the recent statutory interpretation of the habeas statute. The executive branch should use its historic remedy of correcting injustices through the clemency process. Constitutional justice can be accomplished for pre-Blakely defendants and all three branches of government must begin this dialogue to ensure justice for all.
Wednesday, October 12, 2005
Lots of Blakely action in Colorado
As detailed in the second half of this list of announcements, yesterday the Colorado Supreme Court granted cert on six different cases raising Blakely issues of various sorts. Back in May, the Colorado Supreme Court in Lopez issued long and thoughtful opinion applying Blakely to Colorado's presumptive sentencing scheme (basics here, commentary here); yesterday's cert grants address a number of inevitable follow-up issues. Also, notably, the Colorado Supreme Court issued GVRs based on Lopez in a number of other cases.
Interestingly, one of the cert grants comes in the case of People v. Johnson; as discussed here, in Johnson an intermediate Colorado appellate court held "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's how the Colorado Supreme Court frames its cert grant in this Johnson case:
Whether the court of appeals erred in holding that Blakely v. Washington, 542 U.S. 126 (2004) is retroactive to the date Apprendi v. New Jersey, 530 U.S. 466 (2000) was announced.
Because the Colorado Supreme Court did such fine work in Lopez, I will be very interested to see how it handles all these Blakely issues and especially the retroactivity issue. The Court merits credit for taking on all these important follow-up Blakely issues; perhaps it might inspire SCOTUS to follow suit.
Wednesday, September 28, 2005
Sixth Circuit rejects effort to use mandate recall to achieve Booker retroactivity
Today, in US v. Saikaly, No. 01-4001 (6th Cir. Sept. 28, 2005) (available here), the Sixth Circuit issued an order which rejects a defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in early 2004. Here is the heart of the Sixth Circuit's discussion:
The defendant [asks] this court to recall its mandate and to reopen his prior appeal to this court, a procedural maneuver that would permit him to raise a Booker claim as part of that appeal. Although courts of appeals have the inherent authority to recall a mandate, such power should only be exercised in extraordinary circumstances because of the profound interests in repose attached to a court of appeals mandate....
Although this court has granted motions to recall the mandate in cases which were not yet final at the time the motion was filed, other courts of appeals which have addressed similar motions based upon Booker (or the earlier decisions in Apprendi and Blakely) have found no extraordinary circumstances warranting the recall of a mandate issued in a prior (and final) direct appeal. These decisions hold that the proper remedy to attack a sentence in a final criminal proceeding lies under § 2255, and the fact that such remedy is no longer available does not warrant a recall of the mandate. [Cites to cases from the 1st, 2d, 7th, and 10th Circuits.]
These decisions deny any avenue of relief under Booker to defendants whose direct appeals were final at the time that decision was rendered. Although the defendant may argue that there is an element of unfairness in this result, it is the same element found in any Supreme Court decision which announces a new rule applicable to criminal defendants with pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final. The incremental change in the law as evidenced by Apprendi, Blakely, and Booker simply is not the type of unforeseen contingency which warrants recall of the mandate to permit yet another round of appellate review.
Significantly, this Saikaly ruling does not mention the Ninth Circuit's recent ruling in Crawford which seemed to permit using motions to recall the mandate as a means to have Booker applied to cases that had become final before January 2005. As explained here and here, the Ninth Circuit's Crawford decision indicated that some defendants may obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.
Friday, September 16, 2005
Ninth Circuit officially holds Booker not retroactive
Back in July, though its ruling in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (discussed here), the Ninth Circuit decided that Blakely is not to be applied retroactively. Today, in US v. Cruz, No. 03-35873 (9th Cir. Sept. 16, 2005) (available here), the other shoe dropped:
This appeal requires us to decide whether United States v. Booker, 125 S. Ct. 738 (2005), applies retroactively to cases on collateral review. We hold that Booker does not apply retroactively to convictions that became final prior to its publication.
Despite this (unsurprising) ruling in Cruz, as explained here and here, the Ninth Circuit's earlier decision in the Crawford case may allow some defendants in the Ninth Circuit to obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.
Tuesday, August 30, 2005
In praise of Okai and its burden of proof insights
In this post praising some notable recent district court decisions, I spotlighted US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here). I have now had a chance to give Okai a close read, and its many Booker and burden-of-proof insights merit additional attention.
Everyone working in the federal sentencing trenches should be sure to give Okai (which I now am able to provide for download below) a full read ASAP. Among the passages that garnered my attention is the following section that suggests that the burden-of-proof aspects of Apprendi and Blakely merit retroactive application:
Although a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, Schriro, 124 S. Ct. at 2523, the same cannot be said for the retroactivity of application of a preponderance of evidence standard as opposed to a reasonable doubt standard. See Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift the burden of proof to defendant); Ivan v. City of New York, 407 U.S. 203, 205 (1972) (holding that the purpose of a reasonable doubt standard is "to overcome an aspect of a criminal trial that impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"). Application of a lower standard of proof may be an error that significantly affects factfinding accuracy and undermines society's confidence in the result of the trial. See Schiro, 128 S. Ct. at 2523.
August 30, 2005 in Apprendi / Blakely Retroactivity , Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Monday, August 29, 2005
More on mandate recalls in the Ninth Circuit
Over at the Ninth Circuit Blog, Steve Kalar has this post discussing the recent important decision in US v. Crawford in which a panel of the Ninth Circuit recalled the mandate and order resentencing in a case that apparently became final before Booker. As I explained in this post, the Crawford decision seems to adopt what I would describe as a policy of equitable Booker retroactivity. Here's a bit of Steve's take:
Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar? The order doesn't say so, but that's a fair between-the-line reading....
This order may signal a habeas loophole for the right case. Has a client blown ADEPA time limits? Doesn't seem to have bothered the Crawford panel — and the client who will be resentenced doesn't care if his relief came from habeas review or a recall of the mandate.
Steve also notes that the "recall the mandate" approach "has a colorful history" in the Ninth Circuit: "The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt and Judge Kozinski."
Wednesday, August 24, 2005
Is the Ninth Circuit adopting a policy of equitable Booker retroactivity?
As regular readers know, the federal circuits have consistently held that neither Blakely or Booker are to be applied retroactively. And the Ninth Circuit, which had declared Ring retroactive before being reversed by the Supreme Court, last month in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005), ruled that Blakely is not retroactive with language suggesting Booker is not either.
But today, in a little order in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), a panel of the Ninth Circuit, by recalling the mandate and ordering resentencing in a case that apparently became final before Booker, seems to be adopting what I would describe as a policy of equitable Booker retroactivity. Here is the heart of the Crawford order (with cites omitted):
This case involves "extraordinary circumstances" sufficient to justify our recall of the mandate because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court's decision in Blakely foreshadowing its holding in Booker was rendered before the mandate issued. Accordingly, we recall the mandate, vacate the sentence, and remand to the district court for resentencing pursuant to Booker.
Importantly, the Crawford order also includes this tantalizing footnote:
Our decision in United States v. King, Nos. 99-10478, 01-10720 (9th Cir. August 16, 2005) (per curiam) [available here], where we addressed Booker in denying the defendant's motion to recall the mandate, is distinguishable because neither of the special circumstances that we highlight in Crawford's case were present in King. At the same time, however, in stressing that our decision here rests on both the sentencing judge's expressed misgivings about the sentence required by the mandatory Guidelines as well as the relative timing of the Supreme Court's Blakely decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled. Rather future panels will necessarily evaluate the existence of "extraordinary circumstances" warranting the recall of a mandate based on the facts of their individual cases.
The final two sentences of this footnote suggest to me that this panel of the Ninth Circuit is endorsing what I am calling a policy of equitable Booker retroactivity. Apparently, even for cases with "final" sentences at the time of Booker, the door is (wide?) open in the Ninth Circuit for defendants to move to have the mandate recalled by arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.
Because I am not an expert in Ninth Circuit practice, perhaps I am over-reading Crawford. If this is so, I hope readers in the comments or the smart folks at the Ninth Circuit Blog will help set me straight. But if I understand Crawford correctly, this seems like an extraordinarily important little order (and one that seems likely to get the attention of the government and other Ninth Circuit judges).
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).