Notable and insightful Blakely habeas ruling from the Sixth Circuit

The Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law.  The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009)  (available here), has many notable aspects, and here is how the opinion starts and concludes:

The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004).  Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence.  We accordingly reverse.

The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below.  See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible.  Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).

In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.

I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case.  This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.

(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)