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April 9, 2005

Retroactivity contrasts and contentions

As noted by Appellate Law & Practice here, the Second Circuit yesterday in Guzman v. United States, No. 03-2446 (2d Cir. Apr. 8, 2005) (available here), expressly held that Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued."  This ruling makes a total of five circuits, as detailed here,  that have spoken to this issue — the 2d, 6th, 7th, 10th and 11th — and all five have declared Booker is not applicable to cases which became final before the decision.

But the story of retroactivity is much more dynamic than this pattern of federal circuit decisions might suggest.  As spotlighted here, this past week a Colorado appellate court in Johnson decided that "[b]ecause Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced."  That is, the Colorado court has concluded that Blakely is not a new rule, but rather an application of Apprendi that should be applicable to all cases not yet final in June 2000 when Apprendi was decided.

Moreover, despite the fact that no other courts, to my knowledge, have yet expressly declared Blakely or Booker retroactive, there are a number of interesting arguments being developed to support retroactivity claims.  As noted previously here, a recent Harvard Law Review note, Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005), argues that the Supreme Court's decision in Schriro, which most lower courts cite to find against retroactivity, actually supports the retroactive application of Apprendi's reasonable doubt holding.  A lawyer from New Jersey recently sent me a letter brief, which can be downloaded below, that builds on this article to argue that "proper application of the retroactivity test of Teague v. Lane requires retroactivity of Apprendi."

Taking a different tack, another lawyer operating in federal court has sent me a motion which argues more broadly that Teague v. Lane is simply not applicable to the question of Booker's retroactive application.  That motion, which can also be downloaded below, spotlights that "the U.S. Supreme Court has never held that Teague v. Lane is applicable, either in its entirety or in part, to federal inmate's petitions under § 2255."

I have posted a lot previously about these and related retroactivity issues, and below I have linked some of my major pre-Booker posts discussing retroactivity.  Also, all my more recent posts on this topic are collected at this link.

Download nj_apprendi_retroactivity_letter.pdf

Download teague_not_applicable_2255memomotion.pdf

April 9, 2005 at 12:46 PM | Permalink


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Dear Mr. Berman:
My husband, Jack, has been in federal prison for almost 15 years. After reading the letter you received from an inmate serving his 12th year of 22, I want to add some "food for thought." We keep waiting and waiting...and waiting for the Supreme Court to rule on the retroactivity of Blakely/Booker. It is beyond comprehension how the lower courts, with their superior/almighty intelligence and expertise, can conclude that criminal defendants, in courts today, have a constitutional right to not receive a sentence that it is illegal/ unconstitutional...but the inmates who have been serving the illegal/unconstitutional prison sentences for years are not entitled to that right. In other words, how can an old sentence be legal today if the same sentence is unconstitutional in todays court?
In 1992, my husband had served 17 months of a 5-year prison term when two of his "friends" got busted for possessing chemicals/ingredients for a meth lab. My husband had not seen or talked to these guys in 17 months. Same old story...one of them got 20 years off of a 25 year sentence the other got four years off of a 7 year sentence for shifting the blame to my husband. There was no physical evidence, no finished product, nothing but self-serving comments from low-lifes unwilling to do their own time. My husband was sentenced to 260 months for possession with intent to distribute 73 Kilos of methamphetamine, consecutive to the 5-years he was already doing, because the judge followed the pre-sentence recommendations who followed the AUSA's. His court appointed federal defender did nothing.
We can do nothing but wait. Like the inmate in the letter to you said, we need your voice heard. It is so unfair for these guys to slowly die, emotionally and physically. My husband was 45 when he was sentenced...he just turned 60. Fifteen years gone for receiving an illegal/constitutional sentence. And we have no choice but to wait...and wait.
Thank you for this website and for what you do. I can keep up-to-date. We need you and more like you.
Joy Milojevich

Posted by: Joy Milojevich | Jun 10, 2005 4:27:51 AM

Hi Dipo,
Sorry to read about your plight here(assuming you can get this message). If you do not want to get in touch with me I can understand. However if you decide to get in touch , my email is shown on this letter's heading somewhere.



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