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May 14, 2007

Thoughtful work from the Sixth Circuit on Booker retroactivity

Continuing its tradition of thoughtful (and often divided) post-Booker work, the Sixth Circuit today in Valentine v. US, No. 04-2116 (6th Cir. May 14, 2007) (available here), has an extended discussion of Booker retroactivity issues.  Valentine holds, in a 2-1 opinion, that Booker is not retroactive. 

Judge Martin dissents in a terrifically interesting opinion which, among other insights, highlights that the Teague rule for retroactivity is driven in part by federalism and comity concerns not fully applicable to federal criminal cases.  Here is one of many thoughtful parts of Judge Martin's dissent:

These quotations clearly reveal that the standard new rule inquiry and its reference to opinions of reasonable jurists is largely based on concerns with federalism and comity, and demonstrates deference to reasonable state court interpretations of the law.  Even where the “reasonable jurists” to whom we look for guidance are federal judges, their opinions can serve as a proxy for whether a similar state court decision was reasonable.  So long as state courts are applying Supreme Court case law in good faith, there is diminished justification for burdening their quasi-sovereign judicial machinery with the retroactive application of new rules in cases that have become final.

In a section 2255 case, however, where comity and federalism are irrelevant, there is much less need to defer to the divergent views of federal judges who, in hindsight, did not correctly apply existing precedent to a new case.  We are, after all, members of inferior courts established by same sovereign (unlike state court judges), and if the Supreme Court says we were wrong, we should take our medicine and gladly apply the correct rule retroactively, rather than clinging to vacated misapplications of the law to prove that a Supreme Court rule is “new” (which conveniently allows us to convince ourselves that we could not have been wrong in the first place).

May 14, 2007 at 10:36 AM | Permalink


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Tracked on May 14, 2007 10:20:06 PM


It's about time someone tried to get this right. The decisions (in something like ten circuits) holding that Booker is not retroactive (as if there were anything at all new in the constitutional holding of Booker, which is all that the retroactivity doctrine is concerned about) make no sense at all under Teague. Clearly Apprendi announced a "new rule," and Summerlin holds that Ring was also "new" under Teague. The only reasonable question, it seems to me, is whether Blakely announced a "new rule" under Teague relative to Apprendi and Ring.

Posted by: Peter G | May 14, 2007 1:15:17 PM

The ten Booker non-retroactivity decisions DO make sense, if only because of the nightmare of opening all those cases since Apprendi for Booker resentencing. This refusal to declare Booker a logical (and mandatory) extension of Apprendi isn't about Teague, or any interpretation of Teague. It's about the practicalities of resentencing tens of thousands of cases. Maybe all these prisoners should be resentenced, but the Courts of Appeals aren't going to order it unless and until SCOTUS does. And SCOTUS won't, for the very real nightmare of so many resentencings. I'm all about the logic of the law, but practicalities will have their day; and the prospect of so many resentencings and appeals is going to triumph in this one.


Posted by: Mark | May 14, 2007 2:39:42 PM

Although it is not entirely apparent when reading Summerlin, Summerlin's conviction was final prior to Apprendi. The state conviction in Schriro was final in 1983. State v. Summerlin, 183 Ariz. 426 (1983). I think the Supreme Court's decision in Summerlin merely says that the Ring rule is new as to Summerlin. It does not clearly explain that the "newness" of Ring, as opposed to the "newness" of Apprendi itself, was not at issue in Summerlin. The Court basically just says its new as to Summerlin and moves on to other analysis.
The primary thrust of Summerlin's holding was that the jury v judge underpinnings of Apprenid/Ring was not retroactive as a watershed rule. Also, whether the reasonable doubt underpinnings was a watershed rule was not decided in Summerlin as the judge in Summerlin applied a reasonable doubt standard as required by Arizona law.

However, as you suggest, there is a lot of language in the Supreme Court decisions after Apprendi indicating that those opinions merely "reaffirmed" the rule in Apprendi.

Posted by: Tim | May 14, 2007 2:40:26 PM

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