« Fifth Circuit reverses another below-guideline sentence as unreasonable | Main | Press coverage of cert grant in Burton »

June 5, 2006

The cert briefs in Burton

Thanks to a couple of kind readers, I now have copies of the cert briefs from Burton v. Waddington, the case in which the Supreme Court has decided to take up the issue of Blakely retroactivity (basics here, commentary here).  Relatedly, federal public defender David Porter has some advice for practitioners at the Ninth Circuit Blog:

With this cert. grant and the Court's earlier grant in Whorton v. Bockting (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.

Download burton_petition.pdf

Download burton_brief_in_opp.pdf

Download burton_reply_cert.pdf

June 5, 2006 at 06:28 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The cert briefs in Burton:


When I first realized that this was a case from Washington State, I did not think this was an unusual fact. After all, Blakely decided the (un)constitutionality of Washington's sentencing system, and in deciding retroactivity, the Justices would not want to labor over whether a Blakely violation in fact occurred. (Note: Schriro and Ring both originated from Arizona).

However, the sentences in Burton were only “exceptional” in that they were imposed consecutively, when the presumption was for concurrent sentences. In that sense a “traditional” Blakely violation did not occur: The judge did not impose a sentence above the statutory maximum for any of the offenses; he only required the sentences be served consecutively after making findings.

While I think the fact findings required to impose a consecutive sentence clearly violate Blakely, and therefore a Blakely violation did occur in this case, I am surprised that the Court would not choose a more clear “vehicle” from Washington to decide a Blakely retroactivity case. In essence, in order for the Court to decide this case on the merits, they may have to decide that Blakely applies to judicial fact-finding relating to the imposition of consecutive sentences.

Posted by: DEJ | Jun 5, 2006 8:21:55 PM

Now that we know that the first question presented is whether Blakely announced a "new rule" or, instead, was dictated by Apprendi, consider how many courts (the New Jersey Supreme Court among them) applied Blakely to conclude that their jurisdiction's sentencing statutes were unconstitutional but went on to grant only "pipeline" retroactivity to those decisions (or, at most, to make them retroactive to the date Blakely was decided).

Should the SCOTUS agree that Apprendi dictated Blakely, many more defendants will be entitled to bring collateral attacks, even if (depending on how the jurisdiction in question severed its statutes) few of them would actually obtain a remedy.

This leads me to speculate that various States will file a joint brief amici curiae pointing out the potential strain on the criminal justice system were the SCOTUS to declare that Apprendi dictated Blakely's holding.

Just food for thought...

Posted by: Steve | Jun 5, 2006 9:47:30 PM

Burton's conviction became final after Apprendi (2000) but before Ring (2002). In Summerlin, the Court held that Ring was not compelled by Apprendi and was therefore, under Teague, not retroactive. (Have I got that right?) How can the Court then hold Blakely to be retroactive? Only if it was compelled by Apprendi without the aid of Ring, is that right?

Posted by: Peter G | Jun 6, 2006 12:38:06 AM

Peter rightly asks this question:

"How can the Court then hold Blakely to be retroactive? Only if it was compelled by Apprendi without the aid of Ring, is that right?"

I offer this answer:

Easy. This is the same Court that, in a single decision, applied Blakely to the U.S. Sentencing Guidelines and found them unconstitutional, only to sever 18 U.S.C. § 3553 so that judges could go right on finding facts under the Guidelines that were critical to the sentencing determination.

Posted by: Steve | Jun 6, 2006 9:24:41 AM

The case, the questions presented and the criminal defendant are all unfavorable to the scenario I would have preferred for retroactivity consideration. However, like prison chow, you have no choice in what you are served.
Burton is a bad actor and was sentenced to consecutive terms of imprisonment for rape, robbery and burglary, all utilizing a firearm. Burton followed a 15 year old boy home, at gun point entered the home, sodomized the boy and stole some money from a dresser drawer, then bragged about it to his cellmate in Indiana where he was arrested on another charge. Burton has a record for child molestation and is a despicable person, now how can this scumbag help those on collateral review seeking retroactivity.
The question as presented asks if Blakely is a new rule and Burton appears to argue this is the controversy, but for there to be a new rule, there must have been an old rule, otherwise what is new. The U.S. Supreme Court in Blakely found the Washington state sentencing scheme violated the U.S. Constitution in denying criminal defendants the right to have a jury determine the facts essential to the punishment, or admit to those facts. There is nothing new in the U.S. Constitution, nor is this a new right afforded criminal defendants, since before Winship, federal courts always required conviction and therefore punishment be determined by proof beyond a reasonable doubt. Winship granted adult right to juveniles, it did nothing to expand longstanding constitutional rights. Apprendi showed the constitutional infirmity in New Jersey’s sentencing scheme when viewed though the U.S. Constitution microscope, but did nothing to the change the Constitution, likewise in Ring, the Arizona state sentencing scheme was found deficient in granting U.S. constitutional rights.
The Supreme Court cannot find Apprendi, Ring, or Blakely new to the hallowed halls of the U.S. Supreme Court, the Bill of Rights laid the cornerstone for the establishment of trial guarantees and new comparisons of state procedure to the U.S. standard creates no new rule of procedure in federal courts.
What has happened in the past 30 years to the Supreme Court, under the guidance of Rehnquist, is a loss of focus. The Government has had the Supreme Court chasing their tail trying to give the Congress and prosecutors the power to win the war on drugs, war on fraud and now the war on terror, while these are admirable goals they are not worth the loss of our Bill of Rights.
The so-called rule first recognized in Apprendi required the U.S. Supreme Court to look in the mirror and the reflection was not pretty, they had allowed the trial rights of federal criminal defendants to deteriorate and the state’s had followed suit in establishing guideline sentencing ignoring the role of the jury or the requirement of proof beyond a reasonable doubt. The Court must now accept the fact that state sentencing has gone too far from the U.S. Constitution and bring them back in line, but first the Court needs to clean its own courtroom. The federal sentencing guidelines allowed judges to violate the Constitution when relevant conduct became the bases for punishment; the guilt for any offense opened the door to unlimited punishment. The prosecutors needed only an admission of guilt to any offense or a single conviction at trial to punish for uncharged crimes or non-crimes and even acquitted conduct. Until the U.S. Supreme Court puts the federal house in order, the states will continue in disarray. Let’s preserve the Constitution, that is the Issue.

Posted by: Barry Ward | Jun 6, 2006 11:09:03 AM

Re Peter G's comment:

The question of whether Ring is "new" vis-a-vis Apprendi (i.e., was it compelled by Apprendi) did not arise in Summerlin because the petitioner's conviction became final in 1983, well before either Apprendi (2000) or Ring (2002). The Court thus assumed that the Ring rule, invoked by Summerlin, was new (since it was new to him, regardless of whether it was compelled by Apprendi, which was also new to him), and went on to say that it could not be retroactively applied under Teague (since it was procedural (rather than substantative) and did not fall under the watershed exception). I believe, therefore, that a habeas petitioner whose conviction became final in, say, 2003 (ie, after Apprendi and Ring but before Blakely) can indeed argue that Blakely was compelled by both Apprendi and Ring (and thus NOT new to him). Burton can't make this argument because his conviction became final before Ring, and thus has to rely solely on Apprendi in his argument that Blakely is not new.

I think.

Posted by: ycl | Jun 7, 2006 11:50:53 AM

In addition, Ring expressly overruled Walton v. Arizona. So Ring had to be "new." Blakely didn't overrule anything. To the contrary, all it did was apply Apprendi.

Posted by: Anon | Jun 7, 2006 9:26:52 PM

I am a friend of Mr. Burton and have done time with him. He is a brother. And in response to steve's posting of June 6th I have this to say: first of all those who have never done any time shouldn't make cheesy analogies about prison food and legal matters when they obviosly have never had the misfortune or the guts to go there.
Secondly, the only despicable scumbags here are the state pigs who routinely steal prisoner's property and cheat them with complete impunity. There are also the arrogant holier-than-thou's on the street who can't even conceive for a second in their programed slave brains that their precious state slave-masters could ever do something dishonest, like use the testimony of a witness who has been given a sweetheart deal,i.e. bought, in order to manufacture a case against a might-as-well-have-done-it canidate to help some tough-on-crime scumbag politician look good to his worshippers. Go, Lonnie Go!

Posted by: Lord Baron Magnus Von Stalin | Jun 24, 2006 11:12:45 PM

Regarding Whorton v. Brockting case #05-595
Is there any chance of getting all the briefs filed in that case?

Posted by: Kathy | Aug 7, 2006 2:47:18 PM

gateway m505 battery

Posted by: | Oct 14, 2008 11:29:05 PM

bead form <a href=http://royal-jewelry.info/products/14k-white-gold-1-5ct-diamond-double-open-oval-fancy-pendant-p30656.html>ring forgings Italy</a> Crosspointe Camp http://silver-queen.info/category_hoop-earrings-c955_page2/ CELTIC CROSSES! <a href=http://royal-jewelry.info/products/14k-gold-march-boy-gemstone-charm-p53582.html>sterling silver cz gemstone rings</a> rose gold charms http://www.diary.ru/~doctorman/ Modern Day Crucifi

Posted by: bupMernerve | Mar 21, 2009 9:56:10 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB