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October 28, 2004

Careful retroactivity analysis from WD of Virginia

Today in Lilly v. US, 1:04CV00079 (W.D. Va. Oct. 28, 2004), Chief United States District Judge James P. Jones issued a thoughtful opinion (available here) dealing with Blakely retroactivity issues. Chief Judge Jones notes that the Fourth Circuit's Hammoud decision means that, for the time being, "sentences under the USSG are not impacted by Blakely in this circuit." He goes on to explain that "even if Blakely is held applicable to the USSG, it does not apply retroactively to Lilly's case."

Walking effectively and clearly through all the steps of Teague, Chief Judge Jones holds that (1) Blakely is "a new rule for purposes of determining retroactivity," (2) that "Blakely announced a new procedural rule" because "Blakely does not alter the elements of the offense but merely requires that a jury find beyond a reasonable doubt any facts that the USSG requires in order to enhance a sentence, and (3) "Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure."

The Lilly opinion also addresses a number of related issues concerning the posture and possibilities of different claims for retroactive application of Blakely. Though all the retroactivity analysis in Lilly is, in a sense, dicta, the decision provides a terrific road map through the complicated terrain of retroactivity. Though I am sure defendants with final convictions will not like where the destination ends, everyone working through these complicated issues should benefit from the mapping done in Lilly.

October 28, 2004 at 03:39 PM | Permalink


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Defense attorney-

The problem is the defense attorneys and judges are focusing on only one aspect of the Blakely opinion in the retroactive analysis. First, the jury is going to be found 'procedural', thus Schriro is proper. The second point is the 'beyond a reasonable doubt'. That is the Ivan V. New York City line of cases. BRD has been found retroactive by the Supremes. The judges here in Alaska are also ignoring the second point of Blakey in the retroactive analysis.

Posted by: randall cavanaugh | Oct 28, 2004 5:11:41 PM

Perhaps retroactivity is going to be a jurisdiction by jurisdiction problem. A very clever Indiana lawyer has suggested that Blakely should get retroactive application under Teague, Part II, because of the imposition of the beyond-a-reasonable-doubt standard. At the moment, there is absolutely no standard by which a judge need find an aggravating circumstance. To survive appellate review, the aggravating circumstance once found need only be "supported by the record," which sounds a lot like the ugly, ugly world of admin law. So by requiring the finding of aggravating circumstances beyond a reasonable doubt, Blakely makes the Indiana sentencing process much, much more accurate (in theory).

Posted by: Michael Ausbrook | Oct 28, 2004 7:59:22 PM

I am an attorney. I have two cases in the tenth circuit court of appeals right now, each of which involves Blakely issues. As pointed out in each of the two prior comments, above, the beyond a reasonable doubt standard makes a hash of the retroactivity analysis that is already being done. The Supreme Court case law on application of the reasonable doubt standard strongly suggests that the use of a lesser standard is structural error which requires reversal in all cases. I have included this issue in my briefing of the first of my cases in the Tenth Circuit.

Posted by: jim rice | Oct 29, 2004 12:53:36 PM

Jim--are you including Sullivan v. Louisiana? And how does structural error lead into retroactivity analysis? I think you might be on to something, but I haven't thought it through meself.

Posted by: Michael Ausbrook | Oct 29, 2004 1:48:15 PM

When is retroactivity ever going to be established? If there is going to be a jurisdictional debate, when and where? States cannot ignore each other. I just wish this U.S. Supreme court would clarify retroactivity as it applies to Blakely. I too am from Alaska and am currently on a ten year probation for something I did back in 1995. I have transcribed my sentencing hearing, at my own expense, and clearly I was handed an enhanced sentence by Beverly Cutler based on Aggravating Factors. There was no "beyond a reasonable doubt" measure by a jury of my peers. It was all based on a perponderance of evidence. My sentence was illegal and I am still suffering for this injustice. The suspendid time hanging over my head is all aggravated time but I have been waiting for the U.S. Supreme Court to rule before I request the Court to correct my sentence based on the unconstitutional sentencing practice alone. If anyone in Alaska is interested in taking up my case, please e-mail me. I have the transcript of the hearing for review. My case is black and white. Thanks.

Posted by: Joshua C. Harrison | Nov 1, 2004 1:02:41 PM

I am just a citizen looking for information on the internet about retroactivity structural error. Maybe you can help me. Are there any leading cases in the fourth circuit that have ruled certain structual error issues to be retroactive?

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