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March 6, 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. ยง 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).

March 6, 2005 at 06:44 PM | Permalink


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So it comes back to this basic point: for purposes of retroactivity analysis under the AEDPA what is the effective date of the Apprendi/Booker line of cases, the day Apprendi was decided or Booker decided?

If it is June 26, 2000, to what federal district should 3L send their resumes?

Posted by: karl | Mar 6, 2005 8:24:02 PM

Is there any hope for those that signed a plea agreement, waived their rights to a 2255 and then were enhanced, unexpectedly, at sentencing?

Posted by: Confused | Mar 6, 2005 9:58:24 PM

Karl's question is an important one for a large group of potential habeas candidates sentenced during the Apprendi-Blakely gap. It would be helpful to me and, I'm sure, others if someone who has thought this particular retroactivity argument through could post the salient points (and any pertinent citations) here.

Posted by: Alex E. | Mar 7, 2005 10:09:47 AM

3L student --

Is there any argument to be made in a habeas proceeding post-Booker regarding an ineffective assistance of counsel claim, given questions regarding whether the career offender under 4B1.1 was wrongly given if the underlying offense did not qualify? Any advice or refence to recent cases would be appreciated

Posted by: Sara Elizabeth | Mar 11, 2005 1:12:47 PM

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