Blakely's impact on restitution and habeas

With so many possible Blakely cases and dockets already overburdened, it is perhaps not surprising to see courts giving a judicial stiff arm to many Blakely claims. (The Eleventh Circuit's recent work in Curtis and Levy denying defendants even the opportunity to raise Blakely in pending cases is an obvious example.) But the sloppy jurisprudence we are seeing as courts sack defendants' Blakely arguments is both discouraging and disconcerting.

For example, the Tenth Circuit yesterday seemed to fumble a Blakely issue concerning a restitution order in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004). In Wooten, the court rejected the defendant's claim that a restitution order based on judicial factfinding violated Apprendi, and in a footnote stated that "Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum." But because Blakely changed our understanding of what Apprendi means by "prescribed statutory maximum," I am pretty certain that the analysis is not so easy. More generally, the playbook on exactly what Blakely means for restitution orders is going to take a lot of judicial time and energy to work out.

Similarly, US District Judge Philip G. Reinhard in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004), also dropped the ball concerning the possible application of Blakely in a habeas case. In Lowe, the court relies on the Supreme Court's decision in Shriro to find "that Blakely does not apply retroactively to motions under § 2255." But, as previously stressed here and here, it is improper for a court to rely on Shriro alone to find Blakely not retroactive (in part because Shriro did not have to consider the critical issue of a change in the applicable burden of proof).

P.S. Blame Sports Illustrated's early publication of its college football preview issue for the overuse of football metaphors. Go Bucs!