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June 23, 2009

Intriguing Ninth Circuit ruling on scope of Apprendi's prior conviction exception

The Ninth Circuit handed down an interesting little habeas ruling today in Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009) (available here).  As this start to the short Kessee opinion highlights, one probably needs to be a hard-core Apprendi and/or habeas fan to really appreciate the panel's work here:

What is the scope of the “prior conviction” exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty?  The Supreme Court has not yet answered that question.  Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision.  When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods.  When our review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), though, we cannot grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).  Thus, under AEDPA, even if this court has reached a particular conclusion about the scope of the prior conviction exception, our view may not be the only reasonable one; if the state court’s interpretation is also reasonable, we must deny habeas relief.

June 23, 2009 at 01:57 PM | Permalink


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Seems like a garden variety habeas decision--murky area of the law, state resolution of the issue upheld. One would hope that the Ninth Circuit (or more accurately, certain judges on the Ninth Circuit) is getting the message, but one case with a Clinton appointee getting it right is not enough given the Ninth's sorry history.

Posted by: federalist | Jun 23, 2009 2:35:11 PM

Doug, it seems to me that both the Ninth Circuit and the State Court have missed the significance of the offense/offender characteristic dichotomony as it relates to an Apprendi fact. The two ags were probation and the prior convictions were becoming increasingly more serious. Both are offender characteristics.

In my opinion, one aggravator, to be an element of an aggravated crime, has to be an offense characteristic. Otherwise, the def is being punished for the greater offense based on who he is , not what he did.

I agree that once a single Apprendi fact (offense characteristic) is found by the jury, the other ags can be pure sentencing factors and found by the judge.

bruce cunningham

Posted by: bruce cunningham | Jun 23, 2009 7:34:28 PM

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