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February 8, 2011

Split Ninth Circuit ruling on reach of Apprendi's prior conviction exception in habeas appeal

A split Ninth Circuit panel has a notable little decision about Apprendi's reach today in Wilson v. Knowles, No. 07-17318 (9th Cir. Feb. 8, 2011) (available here).  The majority opinion explains the issue and its holding this way:

The Supreme Court held in Apprendithat, except for the fact of a prior conviction, any facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490.  The trial judge in this case found three additional facts about the 1993 accident that increased Wilson’s sentence to 25 years to life: First, that Wilson personally inflicted bodily injury on Horvat; second, that the injury was great; and third, that the victim was not an accomplice. These facts weren’t necessary to Wilson’s conviction, and there was no purpose in challenging them at the time. The issue is whether these findings fell within the prior conviction exception.

Courts may reasonably disagree about the precise boundaries of the exception. See Kessee v. Mendoza-Powers, 574 F.3d 675, 676 (9th Cir. 2009).  For example, it isn’t clearly established whether a judge may find the fact that a defendant was on probation at the time of an earlier conviction. Id. at 678. But it would be unreasonable to read Apprendi as allowing a sentencing judge to find the kinds of disputed facts at issue here — such as the extent of the victim’s injuries and how the accident occurred.  Those are not historical, judicially noticeable facts; they require a jury’s evaluation of witnesses and other evidence. See United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (per curiam).  Nor did Wilson have any reason to contest them when he was convicted in 1993. See Apprendi, 530 U.S. at 488 (emphasizing importance of procedural safeguards during earlier proceeding).  The judge’s factfinding years later extended beyond any reasonable interpretation of the prior conviction exception.

In dissent, Judge Kozinski makes these points:

[U]nder AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction.  See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).  Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction . But courts have sometimes read the exception more expansively.  See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge . . . the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”).  The Supreme Court hasn’t straightened all this out.  The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the . . . exception does not extend to any and all facts related to a prior conviction.”  Butler v. Curry, 528 F.3d 624, 644 (9th Cir. 2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26 (plurality opinion)).  This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception applies to anything other than the fact of conviction.  The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier.  Nor was the state court’s rejection of Wilson’s claim on these facts an objectively unreasonable application of the ambiguous language in Apprendi itself.

AEDPA deference can be a bitter pill to swallow....  In some habeas cases, we must reject what appear to us to be valid constitutional claims because the defendant’s rights have not yet been clearly established by the Supreme Court.  This is such a case.

February 8, 2011 at 01:54 PM | Permalink


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Posted by: davi souza | Feb 8, 2011 3:45:59 PM

Unbelievable. I have some sympathy for the prisoner's position, but the caselaw is crystal clear that on AEDPA that if an issue unresolved by the Supreme Court has support in the jurisprudence of lower courts, then the state court decision stands. It's that f'in simple. Kozinski has it exactly right--it's likely that there aren't 5 votes on the Supreme Court for the state's position here, but that's not how AEDPA works.

We'll see if the Ninth Circuit deals with this en banc. If not, another lesson may have to be administered to this recalcitrant pro-criminal court.

Posted by: federalist | Feb 8, 2011 9:15:40 PM

Kozinski is actually correct. I see the majority failed to address his AEDPA, Premo, and Moore citations. More work for the SCOTUS.

Posted by: DeanO | Feb 9, 2011 11:03:32 AM

Is that how long do we need to wait to have Justice?

Posted by: Superannuation Rules | Dec 21, 2011 12:34:03 AM

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