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June 5, 2006

Supreme Court to take up Blakely retroactivity!

Though I was prepared for the big SCOTUS sentencing news to emerge from new opinions, instead the news comes from a cert grant.  As reported here at SCOTUSblog:

The Court also agreed to hear a case on the retroactivity of its ruling in Blakely v. Washington, one of a series of rulings limiting criminal sentences when facts have not been found by a jury, but by a judge.  The new case is Burton v. Waddington (05-9222). The case tests whether Blakely established a new rule and, if it did, whether it applies retroactively. The Court's grant of review of these issues was something of a surprise, since the Court has repeatedly refused to hear retroactivity claims on the Apprendi line of cases.

One of many ironies here, of course, is that Blakely retroactivity is one of the few major post-Blakely issues that has not generated much of a lower court split in the states or in the federal system.  Nevertheless, this issue has long been on my list of post-Blakely issues that SCOTUS should resolve.  And I am, of course, please to see SCOTUS take my advice to fill its fallow docket with Blakely and Booker issues.

Right now, I know nothing about the particulars of Burton v. Waddington except that it comes from the Ninth Circuit.  Readers are encouraged to fill me in, and I'll be doing a bit of my own digging. Good thing I already have this Apprendi/Blakely Retroactivity category archive collecting my posts on this topic.

June 5, 2006 at 10:44 AM | Permalink


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Although I haven't followed this closely, I too was surprised by the Court's grant on the retroactivity issue. The ninth circuit decision below, has no readily apparent remarkable aspects. Indeed, on the retroactivity issue, it just cites an earlier CA9 case which dealt with the issue in the expected straightforward way: concluding that Blakely was a new, procedural nonwatershed rule.

I am not going to venture any kind of prediction. Notably, in Schriro v. Summerlin, 124 S. Ct. 2519, the Court decided 5-4 that Ring does NOT apply retroactively. In some ways, the argument for retroactivity seems stronger for Ring than for Blakely, since the argument that judicial fact-finding "seriously diminishes" accuracy in a way that turns a new procedural rule into a "watershed" rule, allowing retroactive application, seems stronger with regard to death penalty aggravating factors than with "ordinary" sentencing facts. Still, both WHR and SOC were in the five-justice majority in Schriro (it was the 5 "conservatives" vs. the 4 "liberals" proving that retroactivity feelings trump Apprendi feelings? A bad omen for the petitioner, cert. grant notwithstanding?), adding some intrigue to the grant. Some possibilities:

1) The Court will simply affirm. No retroactive application.

2) The Court will conclude that Blakely is a "watershed rule" demanding retroactive application, in effect overruling Schriro.

3) The Court will hold that Blakely is a new SUBSTANTIVE rule and hence applies retroactively. I have previously argued (in a different context) that Apprendi and its progeny should be understood as substantive limitations on crime definition rather than mere procedural rules, but the Court seemingly rejected that view in Schriro as well. Here is the critical passage from Schriro:

"New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa.... But that is not what Ring did; the range of conduct punished by death in Arizona was the same before Ring as after. Ring held that, because Arizona's statutory aggravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements.... This Court's holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive."

Posted by: Alan Michaels | Jun 5, 2006 12:56:35 PM

The Ninth Circuit decision is unpublished, 142 Fed. Appx. 297.

I am surprised the high court chose this vehicle, because there is a jurisdictional prerequisite to reach the Blakely retroactivity issue. They first have to get around the successive petition limitation. The decision is erroneous on this point, in my opinion.

On retroactivity, the opinion just says that Blakely is new beyond Apprendi, citing See Schardt v. Payne, 414 F.3d 1025(9th Cir. 2005).

Posted by: Kent Scheidegger | Jun 5, 2006 1:00:28 PM

I consider the chances of either of Alan's possibilities (2) or (3) to be very remote. As he says, they are inconsistent with Schriro, and I do not expect either of the new Justices would consider that decision so wrong as to warrant overruling. They are more likely to think it is correct.

The fourth possibility is to hold that Apprendi was a new rule, but Blakely was just a straightforward application of Apprendi. That option wasn't available in Schriro because (1) Summerlin's conviction and sentence were final long before Apprendi; and (2) Apprendi itself squarely held that it was not inconsistent with Walton v. Arizona, the decision overruled by Ring.

This possibility is also not a strong one, though. I expect either straight affirmance or dismissal as a successive habeas petition.

Posted by: Kent Scheidegger | Jun 5, 2006 1:15:24 PM

Wow! I am excited and surprised to see the Court actually take up this issue that has been virtually uniformly dealt with across the county. However, I am more surprised to see claims that Schriro is dispositive to this case and must be overturned in order for petitioner to win.

While I certainly am not the most eloquent person to make the argument, I have copied an excerpt from my Note (66 Ohio St. L.J. 875), explaining why Schriro is not dispositive on the issue of Blakely retroactivity:

Many have argued that through its holding in Schriro, the Court indirectly held that Apprendi was not retroactive. Justice O'Connor poignantly claimed exactly that in her Blakely dissent. ... [E]ven though the Supreme Court has determined that Ring is not retroactive, courts may still find that Blakely is retroactive. The Arizona sentencing statute under review in Ring required that the judge find an aggravating factor beyond a reasonable doubt before imposing the death sentence. The Court explicitly references this fact. Because the reasonable doubt standard was not "at issue" in Schriro, Schriro plainly did not determine whether this burden of proof standard should be applied retroactively.
Unlike the Arizona statute involved in Ring, the Washington statute involved in Blakely did not require judge-found facts to be proven beyond a reasonable doubt. Therefore, jurists would be wrong to automatically conclude: "Schriro teaches . . . that [Blakely] cannot be applied retroactively because it is not of the type [of right] fundamental to the concept of ordered liberty."
Because of this difference in Arizona's and Washington's sentencing statutes, the issue of Blakely retroactivity turns on whether the proof beyond a reasonable doubt standard announced in Blakely should be given retroactive effect. The next portion of the Note will examine this question in depth and reveal why this question should be answered in the affirmative.
Id. at 910-12.

Posted by: DEJ | Jun 5, 2006 2:54:09 PM

I agree this Schiro makes "retroactive" application of Blakely unlikely. But Blakely and Booker did not announce a new rule; both were matter-of-fact applications of Apprendi and the rule applied in those three cases applies to any cases which were not final on direct review when Apprendi was decided. Justice O'Connor, in her Blakely dissent, recognized that Blakely might not have announced a new rule:

"Every sentence imposed under such guidelines in cases currently pending on direct appeal is in jeopardy. And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) ('[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final')."

Posted by: Jonathan Soglin | Jun 5, 2006 2:55:33 PM

Doug, a big question is to what would Blakely be retroactive? Apprendi or Ring? I think retroactive to Apprendi is a long shot. But we have this sentence in Blakely to deal with. "our precedents make clear...that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, " citing Ring. Blakely, 124 SCt at 2537. So, the argument could be that Blakely was dictated by Ring.


Posted by: bruce cunningham | Jun 5, 2006 3:55:25 PM

Please direct me to a website that can give me more information on Burton vs. Waddington. I've tried the US Supreme Court and found nothing. Also, is there a new ruling expected to come out on 10/11/06 regarding the Blakely case? Someone, please respond ASAP.


Posted by: Cynthia | Sep 20, 2006 3:50:02 PM

I am a paralegal and reading your web cite each day has practically become a requirement in my law firm.

Posted by: Ronald Perro | Sep 29, 2006 8:51:57 AM

I'm a student and would like to receive information on the case Burton vs. Waddington that was just heard.

Posted by: Melvin Boykin | Nov 7, 2006 8:49:02 PM

I'm a student and would like to know more about the Burton vs. Waddington oral Argument and what was the outcome.

Posted by: sharon | Nov 9, 2006 11:37:50 PM

Would like know if this trial will affect Arizona.

Posted by: RICK | Jan 29, 2007 4:21:32 PM

Would like know if this trial will affect Arizona.

Posted by: RICK | Jan 29, 2007 4:21:37 PM

Would like know if this trial will affect Arizona.

Posted by: RICK | Jan 29, 2007 4:21:46 PM

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