Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch

Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments.  The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case.  (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”)  I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here.  As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement.  But Staunton did not receive that protection.  Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response.  The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.