Reply brief in Burton on Blakely retroactivity

I just received a copy of the petitioner's reply brief Burton v. Waddington, the case to be argued next week concerning Blakely retroactivity.  Available for download below, here is how it begins:

The consistent theme running throughout the State's brief — as well as its amici's — is a persistent refusal to come to grips with this Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).  The State suggests that Blakely was not dictated by Apprendi because Apprendi left the meaning of "statutory maximum" unclear.  But the State simply ignores the passages in Apprendi that specifically and repeatedly elucidated the "statutory maximum" concept so as to foreordain the result in Blakely.  Furthermore, the State insists that Blakely — even if it did produce a new rule — did not produce a watershed rule because the decision deals only with sentencing offenders "whose guilt already has been determined." Resp. Br. 34.  But the State ignores that the fundamental point of Blakely, like Apprendi before it, is that courts may not sentence defendants for transgressions for which juries have not found them guilty.  Once the real meanings of Apprendi and Blakely are taken into account, it is clear that the Teague doctrine does not bar Petitioner from seeking relief in this case. And none of the side issues that the State raises prevents this Court from so holding.

Download burton_v_waddington_reply_brief_for_the_petitioner.pdf

Some related posts on Blakely retroactivity:

• Big Blakely retroactivity doings from Alaska
• Read all the Blakely retroactivity SCOTUS arguments
• Colorado Supreme Court says Blakely not retroactive
• Apprendi/Blakely Retroactivity category archive