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August 5, 2004

Paging habeas experts...

Though a number of courts have already spoken to Blakely retroactivity issues in various ways, I believe the new decision by Senior US District Judge Thomas J. McAvoy (NDNY) in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), is the first to do a complete Teague retroactivity analysis in order to deny a federal petitioner relief on a Blakely habeas claim.

Because I am not an expert on habeas law, I am hesitant to say Garcia got the law all wrong. But, I think I see at least two major flaws in Garcia's analysis of Blakely's retroactivity:

First, Judge McAvoy starts his analysis by asserting "Blakely did not announce a new rule of law, but extended the rule in Apprendi holding." Id. at *14. I believe, if this is the case, then the Teague doctrine limiting retroactivity does not even apply. I am pretty sure Teague is a doctrine which applies only to "new" rules, not to the application of old rules. I believe this is why Justice O'Connor in her Blakely dissent said that, despite the High Court's holding in Schriro that Ring was not retroactive, "criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack."

Second, when Judge McAvoy launches into his Teague analysis, he relies very heavily on the Supreme Court's decision in Schriro to conclude "Blakely cannot be said to establish a watershed rule of criminal procedure," id. at *16-*18, and thus does not fit into Teague's second exception to its doctrine limiting retroactivity of new rules. However, as I previously highlighted here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); 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.

Because habeas law is so complicated doctrinally, both as a consequence of Teague and its progeny and also because of Congress' restrictions on habeas in AEDPA, my analysis here of Judge McAvoy's ruling in Garcia may be all washed up. But because this issue is so important, I hope readers more knowledgeable about habeas law might use the comments for any important corrections or clarifications.

August 5, 2004 at 10:56 AM | Permalink


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The Teague anti-retroactivity principle is not limited just to new rules, but also to unprecedented applications of old rules: "As the Supreme Court has explained, Teague applies not only to 'new rules,' but also to 'the application of an old rule in a manner that was not dictated by precedent.'" Coleman v. United States, 329 F.3d 77, 89 (2d Cir. 2003) (quoting Stringer v. Black, 503 U.S. 222, 228 (1992)).

Does Blakely constitute an unpredented application of Apprendi?

In any event, it seems that the most problematic aspect of the Teague analysis in the Garcia case is the district court's assumption that "Blakely implicates a procedural rule of law." This assumption is not supported by Supreme Court precedent.

First, the anti-retroactivity principle of Teague applies only to procedural rules. United States v. Montalvo, 331 F.3d 1052, 1055 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 619-620 (1998)). Second, as noted in your posting, Blakely has Fifth Amendment (proof beyond a reasonable doubt) and Sixth Amendment (jury trial right) components. And, as to the requirement of proof beyond a reasonable doubt, it is not clear whether that requirement is a mere procedural requirement: As Justice Stevens explained in a dissenting opinion in Albright v. Olicer, 510 U.S. 266, 301-302: "[I]n Winship, we found it unnecessary to clarify whether our holding rested on substantive or procedural due process grounds; it was enough to say that the Due Process Clause itself requires proof beyond a reasonable doubt...."

Certainly, if a choice had to be made between characterizing the requirement of proof beyond a reasonable doubt as procedural or substantive, a strong argument in favor of the latter characterization could be made, in light of the fundamental nature of the requirement.

Posted by: Victor Haltom | Aug 5, 2004 1:14:16 PM

Here's my take, from the standpoint of a lawyer who deals with habeas all day long:

I disagree with Judge McAvoy's retroactivity analysis on both Crawford and Blakely, but I won't bother your readers with Crawford stuff.

Once Judge McAvoy holds that "Blakely did not announce a new rule of law, but extended the rule in Apprendi," the retroactivity analysis should end. Old rules automatically apply to habeas cases (or, more accurately, to habeas cases for prisoners whose convictions were not final on direct review when the original rule was announced, in this case Apprendi). "Old rules," by the way, are those dictated or compelled by Supreme Court precedent. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997). If Blakely is not a new rule because it is dictated or compelled by Apprendi, it applies to pending habeas cases. Yet Judge McAvoy holds it does not.

To my reading, the cases Judge McAvoy cites don't support the ultimate conclusion he draws. For example, In re Dean simply held, probably correctly, that Blakely does not provide grounds for filing a second or successive sec. 2255 petition because it was not made expressly retroactive to cases on collateral review by the Supreme Court. This has no bearing on whether Blakely applies to timely, properly filed, jurisdictionally sound habeas petitions, whether brought under 2254, 2255, or even under 2241 through the savings clause.

Judge McAvoy really loses his way when he concludes that because Apprendi doesn't apply retroactively to habeas cases, neither does Blakely. Basically, he's using the wrong syllogism. Once the judge holds that Blakely flows necessarily from Apprendi and does not announce a new rule, the correct conclusion is that Blakely applies to all cases to which Apprendi applies. While Apprendi doesn't apply retroactively to cases that were final on direct review when it came down, it does apply to cases that were not yet final on direct review then and to all subsequent cases, including Mr. Garcia's. In other words, because Apprendi applies to Garcia, and Blakely is clearly dictated by Apprendi, Blakely applies to Garcia. So under his own "not a new rule" determination, Judge McAvoy's ruling is dead wrong.

Even if Blakely is a new rule, there's an argument to be made that Blakely satisfies the second (watershed) Teague exception and applies retroactively to cases on collateral review. Schriro held that Ring doesn't apply retroactively to habeas cases because there's no indication that the Ring rule fundamentally increases the likelihood of an accurate death sentence. But Schriro also held that Ring does satisfy the fairness prong of the watershed exception, and doesn't satisfy the accuracy prong only because even pre-Ring the Arizona law at issue required the judge to find the relevant capital sentencing factors beyond a reasonable doubt. There's no evidence that juries are more or less accurate than judges, so Ring fails the second prong of the second Teague exception.

On the other hand, Blakely involves application of a beyond a reasonable doubt standard to sentencing factors that were previously made both by the wrong party (the judge) and under the wrong standard (something less than BARD). Therefore, Blakely implicates both the fairness and accuracy of a sentence and satisfies the watershed exception.

As a semi-aside, it is probably worth noting that the Teague analysis and the substantive habeas analysis are distinct but related. For example, if Garcia was before the judge on a state habeas petitioner's sec. 2254 petition and the state court had reviewed the merits of the issue (presumably under Apprendi), Blakely would still apply if it's not a new rule. In Williams v. Taylor, the Supremes explained that "cleary established federal law" for purposes of sec. 2254(d) is "whatever would qualify as an old rule under [the Court's] Teague jurisprudence." 529 U.S. 362, 412 (2000).

Posted by: Madeline Cohen | Aug 5, 2004 2:05:10 PM

Here's the question I'm struggling with (as one who thinks Blakely was just an application of old rule Apprendi): if Blakely is a "new" rule, then what distinguishes a "Blakely claim" from an "Apprendi claim"?

I'd appreciate any thoughts.

Posted by: Mike Limrick | Aug 5, 2004 3:03:41 PM

The biggie is in the way that Blakely clarifies what "statutory maximum" means for Apprendi purposes. After Blakely, stat. max. is the maximum penalty without any additional findings. This may be different from - and significantly lower than - the maximum set by the substantive criminal statute. In other words, assuming the Guidelines can apply at all after Blakely and that the mechanism for determining criminal history categories is unaffected (assumptions that may well NOT hold true), the "statutory maximum" would be the top of the guidelines range found at the intersection of the base offense level (calculated using only found-by-jury-beyond-a-reasonable-doubt or stipulated-to facts), and the criminal history category.

Posted by: Madeline | Aug 5, 2004 3:37:34 PM

My focus has been Indiana state law, which operates differently from the Guidelines (although still, in my view, unconstitutional under Apprendi), so please forgive what may be ignorant questions:

1) I thought Apprendi's "greater punishment than that authorized by the jury's guilty verdict" language had already established this, so I'm still not sure I see the leap in Blakely;

2) how was this being argued at the fed level before Blakely?

Thanks again.

Posted by: Mike | Aug 5, 2004 4:45:09 PM

I do some habeas work but also, like Mike Limrick, spend most of my time on Indiana law. (At the moment, the Hoosier ostrich has its head in the cornfield and can't see the elephant in the courtroom, to borrow from Judge Dalzell in US v. Leach. For example, the Indiana Attorney General is telling everyone, including the National Center for State Courts, the Blakely doesn't apply to Indiana. Unless the Indiana Supreme Court comes up with some unbelievably surprising opinion that controverts almost 30 years of precedent, the Indiana sentencing regime is even more offensive to the Sixth and Fourteenth Amendments than are the federal sentencing guidelines. There is *no* standard, for example, by which an Indiana trial judge has to find the existence of an aggravating circumstance that would permit the imposition of a sentence greater than the fixed presumptive. And while the Indiana Attorney General is opining that the plane to Apprendi-Land won't be landing in the Hoosier State, I have heard reports that the Indianapolis courts are now using some form of Blakely waiver in plea agreements and that prosecutors in farther-flung places are generally at a loss about what to do.)

For me the key to Blakely's retroactivity comes in the language of Blakely itself: Scalia speaks of the fairness of *Apprendi* and the regime *it* replaced, not the regime that Blakely was replacing. Ameline, notably and on the other hand, speaks of Blakely as a clarification of Apprendi and as working a "sea change" in the law. And it is hard to imagine the Supreme Court saying that Blakely was compelled by Apprendi, since everyone except Kansas and possibly Minnesota didn't think so. (From the 7th Circuit's Simpson: "The rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny. In fact, before Blakely was decided, every federal court of appeals had held that Apprendi did not apply to guideline calculations made within the statutory maximum.") It would be quite an epistemological slap in the face to say that every circuit had gotten it wrong and that Blakely was just restating the Apprendi-obvious.

The five justices in the weird Blakely majority are clearly serious about their program, though. That may not mean retroactivity to Apprendi, even if Justice O'Connor seems to think it does. These are the same five who brought us Jones and Apprendi itself. Moreover, with Blakely, they chose a case coming out of a state intermediate appellate court. Not unheard of, but pretty unusual.

So, as part of the program, will they push it back to Apprendi? My guess is no better than anyone else's. One thing they might do is not push it back as "compelled" by Apprendi. They might push it back even beyond Apprendi into the indefinite past by saying Blakely announces a watershed rule. (Note the If they say that Blakely was compelled by Apprendi, then all the people whose lawyers did not make the Apprendi argument that Blakely's lawyer did will have ineffective assistance post-conviction or habeas claims. A watershed rule would limit the class of people with post-conviction and habeas claims to those who made the argument sometime in the past and lost. That's not that many people, I would guess. (On the side of the watershed rule approach, is one case, whose name escapes me and that

The possibilities with post-conviction and habeas claims, waiver / procedural default of those claims are almost endless. But if retroactivity can be solved in a way favorable to post-conviction and habeas petitioners, the next question is whether a Blakely claim is one of structural error under Sullivan v. Louisiana. Like Sullivan, a judicial finding by a standard lower than beyond a reasonable doubt leaves literally nothing for an appellate court to review, in the language of Sullivan. In addition, the wrong participant has made the finding by the wrong standard.

Cotton and some of the recent plain error cases out of the circuits are not promising on this point. I may not understand federal plain error analysis properly, but I find what I've been reading irreconcileable with Sullivan.

One thing possibly to watch out for whether Blakely, in all of its awesome glory, is going to have very nasty procedural consequences the way Mapp v. Ohio did. In order to limit Mapp, we got Stone v. Powell, a bizarre habeas exclusion leaving those who litigated and lost in state court paddleless while those whose lawyers screwed up suppression have viable federal ineffective assistance claims. We may have also gotten the good-faith exception in warrant cases, and arguably Teague as a replacement for Linkletter. It is hard to guess what the specific nasty procedural consequences cabining Blakely's effect might be, but who would have guessed that Stone v. Powell would have come along?

So many questions . . . and nothing but time to litigate them. Blakely really is for criminal lawyers, whatever side they are on, as war is for soldiers: there are careers to be made.

(I am a criminal defense lawyer, a Special Assistant to the Indiana Public Defender, and former Indiana Deputy Attorney General).

Posted by: Michael Ausbrook | Aug 5, 2004 6:29:46 PM

Great post Michael. I have an article in Res Gestae this month highlighting some of these issues, and I'd appreciate your insight (feel free to e-mail me directly so as not to bother the non-Hoosiers -- [email protected]). Full disclosure here: I'm not a criminal law attorney, just a former Boehm clerk who's had an unnatural interest in Apprendi and Indiana for more than a year now.

With regard to retroactivity, I've taken for granted (perhaps incorrectly) that the timeline on claims starts with Apprendi. I wonder, though, even if the Court eventually says Blakely is new with respect to the federal guidelines, if there aren't enough differences between the guidelines and Indiana's presumptive system to justify saying Blakely didn't add anything new for us. I don't know, just throwing random thoughts out here.

As for the Hoosier ostrich syndrome, what else should we expect from a state that refuses to acknowledge daylight savings?

Posted by: Mike | Aug 5, 2004 7:00:01 PM

I am a national Federal sentencing and custody (BOP) practitioner currently based in Lexington, Kentucky. While by no means “expert” in habeas law or retroactivity, I am struck by the number of commentators and courts brushing along to other issues after summarily declaring Blakely is an “extension” of Apprendi, or in other ways relating the Blakely decision to previously announced Constitutional principles. I argue there does now exist a “Blakely Doctrine” that must, in any fair system, be applied retroactively.

While Blakely does encompass cases like Apprendi, Ring, and Schriro, other writers here astutely observe that Blakely addresses larger Sixth Amendment (constitutional) violations of both fact-finder and standards (and perhaps burdens) of proof in all felony aggravations – including Apprendi violations. Blakely did not follow from Apprendi or any other precedent, in this view, but rather spoke a general rule already, though terribly inadequately, delineated by precedent.

A split Court used Blakely to finally tell legislatures and prosecutors they can only punish people for convicted or admitted crimes, rather than aggravating – or even punishing different – felonies after conviction (a Double Jeopardy violation?) (1) by a lesser standard of proof than criminal conviction; (2) in a process that may systemically misplace the burden of persuasion on the defendant, through the Rule 32 Presentence Investigation Report (PSI or PSR); and (3) certainly inappropriately requires the bench, rather than a jury, find factual bases for express, mandatory, aggravated punishment. With respect to all American judiciaries, the Founders simply did not trust them or legislatures with such large decisions as criminal culpability.

The basis of Blakely, the source of its power, seems not the current Supreme Court’s ubiquitous 5-4 alignments or other, more unanimous stare decisis – the source of Blakely’s authority is the United States Constitution’s Sixth Amendment, in a matter of apparent first impression before the Court. Thus, while a “Blakely Doctrine” may separately and more generally address facets of Apprendi and Ring and Schriro, one cannot wholly “distinguish” Apprendi from Blakely because Apprendi addresses a subset of facts protected under the Blakely Doctrine. Again, however, Apprendi is part of Blakely, not vice-versa. Even if Blakely did not announce a substantive protection of jury findings under the Sixth Amendment (thus sidestepping the hoops for procedural Teague exception, another legal conclusion this author admittedly accepts), it certainly announced a general rule many years in the making with cases like Apprendi, Ring, and Schriro.

For analogy, harken back to basic geometry: all squares are rectangles, but not all rectangles are squares. A rectangle (in this analogy, Blakely) is defined by a broad, general rule; that rule is also satisfied by similar but more specific shapes, the squares (here, the more narrowly tailored rules of Apprendi, Ring, and Schriro). In this analogy, all pre-Blakely holdings (squares) fall into the general scope/definition of the Blakely Doctrine (rectangle), but the Blakely Doctrine cannot fairly be defined as meeting all narrow parameters announced in its subset cases. All Apprendi violations are thus Blakely violations, but not all Blakely violations are Apprendi violations. Calling Blakely an extension of Apprendi thus seems inapt.

A bare majority, voiced by Justice Scalia (the lone Mistretta dissenter), has told us our Constitution requires American defendants be punished for their convicted crimes, rather than facing subsequent, aggravated, punishment prosecution under the USSG (arguably an aggravated Federal felony code, though any Mistretta conflicts stand here unconsidered). For almost two decades, however, Federal courts sentenced defendants based on “relevant” aggravating conduct, even if a jury had already acquitted that conduct, and did so if defendants could not disprove their Probation Officers’ allegations.

Under Blakely, the USSG may finally be unmasked as an aggravated felony code (compare, however, Mistretta), where the Presentence Investigation Report (PSI, or PSR) operates as a de facto judicial information and each defendant is left to prove to the judge (s)he more likely did not than did commit an aggravated felony. Now, in absolutely declaring a defendant’s substantive right to fact-finding by a jury, beyond a reasonable doubt, before receiving mandatory aggravated punishment, Justice Scalia may have the vehicle to tell Congress how far out-of-bounds the mandatory USSG stand as written. As held by many courts, however, a permissive USSG may cure most Blakely defects.

As a final argument for unrestricted retroactivity: the Executive Department’s costs of prosecuting in compliance with the Constitution is an essential cost under the Constitution – the National government’s expenses ensuring the Constitution, and we, are protected from the President and Congress are inconsequential. While Justices O’Connor and Breyer are correct the flood gates are open and the flood will be expensive, those gates opened because, for nearly two decades, Congress ordered a statutory, quasi-“judicial” entity (limited by the PROTECT Act to three judges) to establish judicially-found elements of aggravated felony offenses, then gave implied and (with PROTECT’s Feeney Amendment) express force of statute to those aggravated punitive elements. That Americans must now pay a high price to correct seemingly obvious constitutional infirmities (one could be punished for jury-acquitted conduct?) has no bearing on the duty to correct and prevent those constitutional infirmities. Any argument that cost prevents compliance with the Sixth Amendment seems disingenuous at best, and a throwback to Hamiltonian aristocracy at worst – a place where Government knows best, and it’s cheaper anyway. The Sixth Amendment exists exactly because (most of) the Founders distrusted Government, and favored citizens – a jury of peers from that district – deciding whether and what laws their neighbor had violated. As such, I personally have trouble seeing Blakely as anything less than a Gideon v. Wainwright-level pronouncement.

Posted by: Jay Hurst | Aug 6, 2004 11:11:00 AM

I still don't see what Blakely is saying that is broader than Apprendi. Apprendi's holding was this: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." This seems to cover standard of proof, burden of proof, and right to a jury trial -- the three points Mr. Hurst mentions above.

I'm perfectly willing to change my mind on this -- there's too many different views out there to be wholly convinced of only one -- but I still haven't seen what Blakely adds that Apprendi didn't have.

And why doesn't the Court's own language in Blakely settle it? Part two opens: "This case requires us TO APPLY the rule we expressed in Apprendi v. New Jersey . . . ." The Court doesn't seem to think (although maybe it does by now) that it was pronouncing a new rule.

By the way, this has been a very helpful and interesting discussion.

Posted by: Mike Limrick | Aug 6, 2004 12:21:36 PM

For example, In re Dean simply held, probably correctly, that Blakely does not provide grounds for filing a second or successive sec.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:24:14 AM

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