September 22, 2006

Going Retro

by Armen

On Tuesday, my Supreme Court will decide Burton v. Waddington, 05-9222. The question is simple: does the rule announced in Blakely v. Washington apply retroactively to habeas challenges to a conviction? The question may be answered with a "yes" if the rule announced in Blakely was not a new one, but it was preordained by Apprendi, or the rule is a watershed rule of criminal procedure such that it alters our belief in the integrity of justice system. There is no circuit split on the issue. However, Tom Goldstein has written an excellent brief for the petitioner as his Court appointed counsel.

Below the fold I am reposting an executive summary that Justice Thomas distributed to the other Justices in the class. The centeral question I want answered is how Blakely was not governed by Apprendi? How can Blakely possibly be a new rule? In Summerlin (decided on the same day as Blakely) we held that Ring was not retroactive because it was not a substantive rule and it was not a watershed rule. Implicit in that was that Ring was not preordained by Apprendi, but there is no direct mention of that. This would help Justice Thomas' position that Blakely is not retroactive.

UPDATE: By a vote of 7-2 we held that Blakely was a new rule, but by a vote of 5-4 (Scalia in the majority) we held that Blakely's beyond a reasonable doubt reaquirement was a watershed rule of criminal procedure. A bit of a surprising result. I also want to note that there were some votes for dismissing the cert as improperly granted because of questions about the appropriateness of this case to decide the issue.


1. Is the holding in Blakely a new rule or is it dictated by Apprendi?

2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?


This all began with the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), where the Court held that “the Due Process Clause of the Fourteenth Amendment requires that a factual determination [other than a prior conviction] authorizing an increase in the maximum prison sentence for an offense. . .be made by a jury on the basis of proof beyond a reasonable doubt” (unless the fact is admitted by the defendant).

In Blakely v. Washington, 542 U.S. 296 (2003), the Court held that the State of Washington’s sentencing scheme was governed by Apprendi. Petitioner pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range. The Supreme Court held that the statutory maximum for Apprendi purposes is the maximum sentence that a judge may impose based on the facts proven beyond a reasonable doubt by a jury or admitted by the defendant. In this case, the judge could not impose the 90-month sentence; therefore this violated the defendant’s Sixth Amendment right to a jury trial.


A brief explanation of a habeas corpus petition may be helpful. After a state prisoner has exhausted his direct appeals, he may challenge his continued detention in federal courts on the ground that his continued detention violates his U.S. Constitutional rights. A habeas petition is considered a collateral review of a final conviction, as opposed to a direct review by state appellate courts or the Supreme Court of the United States. A conviction is final when the prisoner exhausts his last direct review (usually when a state high court or the SCOTUS denies review). In Teague v. Lane, 489 U.S. 288 (1990), the Supreme Court held that a new rule applies to all cases pending on direct review. But to determine retroactivity of a new rule on collateral review, there are several questions that need to be answered.

1. Is the rule substantive or procedural? A rule is substantive if it alters the elements of a crime, for example. If it is substantive, it applies retroactively and there is no Teague analysis. For a discussion of the substantive/procedural distinction, see Schriro v. Summerlin, 542 U.S. 348. Blakely appears to be procedural.

2. If procedural, then is the rule a new one or one that was preordained by prior decisions of the Supreme Court? This is the first question presented by the case before us. We must decide whether the rule in Blakely is a new one, or if the unlawfulness of the sentence was apparent to all reasonable jurists, and therefore dictated by Apprendi. If Blakely was dictated by Apprendi, then Burton’s conviction should be reversed on habeas, along with all other prisoners convicted after Apprendi whose sentences were enhanced by judicial fact findings.

3. If the rule is a new one and not one dictated by prior precedent, then it does not apply retroactively unless it falls under one of two exceptions. The two exceptions are: (a) Does the rule remove certain conduct from the realm of criminal law? (b) Did the rule announce a watershed rule of criminal procedure? This second exception is before us in this case. A rule is watershed if it alters “our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Teague, 489 U.S. at 312.

In Ring v. Arizona, 536 U.S. 584 (2003), decided after Apprendi but before Blakely, the Court struck down Arizona’s sentencing scheme that allowed a judge, rather than a jury, to find the existence of aggravating factors that led to a death sentence. In Summerlin the Court held that Ring was not retroactive under Teague, but discussed only the issue of whether it was a watershed rule of criminal procedure. The Court held it was not.

September 22, 2006 11:47 PM | TrackBack
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