Cert petition in the Tennessee Blakely case Gomez

Courtesy of Nashville attorney David Raybin, I have received a copy of the certiorari petition which is to be filed on Monday seeking to garner SCOTUS review of the Tennessee Supreme Court's decision in State v Gomez.  Recall that, as detailed here, the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's presumptive sentencing scheme, a ruling which, as detailed here, seems to rest on a misunderstanding of Apprendi and Blakely.  (Notably, every litigant involved in Gomez, including the Tennessee Attorney General, petitioned for rehearing (see details here and here), but the Tennessee Supreme Court denied rehearing.)

The cert. petition, which can be downloaded below, highlights the problems with the Gomez view of Blakely (a view which was also essentially adopted by the California Supreme Court in its Black decision).  Here are highlights from the start of the argument section of the petition:

While there are minute differences between the Washington and Tennessee sentencing structures, at bottom, both systems contain a mandatory, "presumptive" base sentence beyond which a trial judge may not exceed without additional judicial factfinding.  This case is indistinguishable from Blakely which held that such additional judicial fact-finding violated the Sixth Amendment....

The Tennessee Supreme Court misread Booker as somehow modifying or overruling Blakely. This interpretation is simply incorrect and represents a fundamental constitutional error.  Any modification of Blakely should come from this Court and not the Tennessee Supreme Court. 

The decision of the Tennessee Supreme Court, if left unresolved, will foster continued confusion in other states. Indeed, there is now a split of authority in the United States as to whether Booker trumps Blakley.  Defendants in Tennessee are still being sentenced every day in contravention of the Sixth Amendment causing enormous disruption of the criminal justice system.  Notions of "plain error" under state law are best resolved in the first instance by the Tennessee Supreme Court once its fundamental misapprehension of the Sixth Amendment has been corrected.  Given that there is no dispute between the Petitioners and the State of Tennessee on the constitutional question presented here, this case is appropriate for summary reversal.  Accordingly, this Court should grant the petition for writ of certiorari.

As this snippet highlights, there is a state plain error issue in Gomez, which makes uncertain how the Tennessee Attorney General will respond to the cert. petition.  The Tennessee AG is on record saying Gomez is wrong, but the AG might not want SCOTUS involvement in this particular case.  And how the Tennessee AG responds to the cert. petition could in turn impact the Supreme Court's view (or should I say the clerk's view) of whether Gomez merits review.  Stay tuned.

Download gomez_v_tenn. US Supreme Court Cert Petition.pdf