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May 18, 2005

What's the next dance step in Tennessee's Blakely waltz?

As detailed in this post, the Tennessee Supreme Court has now refused to rehear its Gomez decision, which declared that Blakely did not raise problems for Tennessee's sentence system even though every litigant involved in the case, including the Tennessee Attorney General, believes Gomez rests on a misunderstanding of Apprendi and Blakely.  Though this decision is interesting in itself, the story of Blakely in Tennessee takes on a whole new layer of intrigue when one ponders what happens next.

David Raybin has predicted that the "old Tennessee pre-fix statute will not survive first contact with a federal court."  I share that instinct, but I wonder when and how that "first contact with a federal court" will occur.  I suspect the defendants in Gomez will petition for cert., but I have to wonder whether SCOTUS want to bother with this case especially now that the state's Task Force-recommended-Booker-style, Blakely fix legislation is about to become law. 

Of course, the other obvious way to get these issue before a federal court is through federal habeas, and thus a Tennessee federal district judge (and thereafter the Sixth Circuit) may get to weigh in on these issues through habeas.  However, procedural complication and the AEDPA overlay may make that a complicated path for correcting Gomez.

And while these issues and questions unfolds, what happens to cases in the pipeline in Tennessee (where some lower state courts had been applying Blakely to the state's sentencing scheme)?  And, thinking outside the box, I wonder if some enterprising Tennessee defendants with on-going cases about to be sentenced might seek to draw on the Supreme Court's recent Dotson decision in order to try to litigate these issue though a ยง 1983 action in federal court.

Though it is fun to speculate about all these issues, I really feel sympathy for the state prosecutors and defense attorneys in Tennessee who have to sort out these issues "on the ground."

May 18, 2005 at 10:18 PM | Permalink


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