Thoughts and holdings on Blakely retroactivity

Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).

Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).

Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:

Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.

Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."