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July 8, 2005

Ninth Circuit says Blakely not retroactive

The Ninth Circuit, which has a reputation of being the most defendant-friendly federal circuit, today ruled in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (available here), that Blakely is not to be applied retroactively.  Especially since the Ninth was the circuit which had declared Ring retroactive (a ruling subsequently reversed by the Supreme Court), this decision has to be seen as a major blow to all those hoping for retroactive Blakely relief.  Here is the decision's opening paragraph:

We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication.  We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.

July 8, 2005 at 01:18 PM | Permalink


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The Circuit's analysis is incredibly superficial --even downright lazy-- for such an important question. The panel never mentions, let alone discusses, the Supreme Court precedents which hold that the standard of proof can significantly impact factfinding accuracy and society's confidence in the result.

See In re Winship, 397 U.S. 358, 363 (1970) ("The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error") and at 364 ("the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law"); Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (purpose of reasonable doubt standard is "to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"); Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift burden of proof to defendant).

The opinion reads like somebody was in a hurry to go play golf, and didn't have time to do basic legal research and analysis. What the heck, they're just prisoners. Not as if we're talking about the constitutional rights of a CEO or someone important.

Posted by: Anon | Jul 8, 2005 4:21:01 PM

I won't comment on the thoroughness of the legal reasoning, but I never had any serious doubt on the retroactivity question. There haven't been many Supreme Court precedents declared retroactive since Teague v. Lane, and I doubt Booker/Blakely would be among them.

Posted by: Marc Shepherd | Jul 8, 2005 4:38:17 PM

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