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May 11, 2007

DC Circuit rejects Booker retroactivity (and suggests Blakely might be watershed?)

The DC Circuit today in In Re: Fashina, 06-3002 (DC Cir. May 11, 2007) (available here) rejects a Booker retroactivity claim (after working through some complicated AEDPA issues).  Since no court ever decided that Booker was retroactive, this is not big news.  However, Fashina has an extended discussion of whether Booker might qualify as a "watershed rule" exception under Teague which perhaps hints that the reasonable doubt part of Blakely might be fully retroactive.  Here is the passage that especially caught my attention:

[W]e share [the defendant's] premise about the foundational role of the reasonable doubt standard of proof in criminal cases. [Long quote from In re Winship, 397 U.S. 358, 363 (1970)].... We also note that Winship was made retroactive, albeit prior to the Court's setting the current standard for retroactivity in Teague.  See Ivan V. v. City of New York, 407 U.S. 203, 204-05 (1972).

Important as the reasonable doubt standard no doubt is, our task is to determine whether Booker works so "sweeping and fundamental" a change in its application as to constitute a watershed rule.

May 11, 2007 at 12:17 PM | Permalink


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