Saturday, November 06, 2004

Blakely, Trials, Pleas & Waiver

I cannot research everything to three levels of authority down and sideways, so I want to pose a question about waiver / forfeiture / procedural default of Blakely: Should procedural default be treated differently after a trial (Heath) from the way it is treated after a guilty plea (Smylie)?

My immediate inclination is to say, "Yes." If Indiana fundamental error isn't going to get past procedural default, I can think of quite intricate arguments to distinguish or otherwise get past United States v. Cotton, United States v. Johnson, on which Cotton relies, both of which involved trials, and in both of which the Supreme Court held that the error, unobjected to, could not survive the fourth prong federal plain error analysis under Federal Rule of Criminal Procedure 52(b), because "the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings." My own experience is that intricate arguments usually fail, even in federal habeas proceedings, where there are usually nothing but intricate arguments.

On the other hand, in the context of a guilty plea, Boykin and Bousley would seem to foreclose a decision finding procedural default on a record necessarily silent regarding elements, jury trial rights, and / or possible penalties in light of Blakely.

I will say that I had hoped that the history of Dilts v. Oregon might provide some insight on the waiver issue. It really doesn't. Four days after Blakely, the Supreme Court granted cert in Dilts and remanded for reconsideration in light of Blakely. The original Oregon Supreme Court opinion is here and says nothing about waiver of the Apprendi / Ring issue. It simply decides the issue against Dilts.

The Oregon Court of Appeals opinion in Dilts, here, is more illuminating. Dilts did object that the particular grounds for enhancements had never been charged or admitted; he did not, apparently, even in 2002, use the magic word "Apprendi." The Oregon Court of Appeals said:

As stated above, in objecting to imposition of a departure sentence, defendant's counsel argued that defendant's crime was not motivated by the victim's race or color and objected to the court's consideration of defendant's use of a weapon. Counsel summarized his arguments in opposition to a departure sentence by stating that defendant objected to the court "considering matters that weren't alleged in the Indictment or admitted in Court as part of the plea." (Emphasis added.) On that record, we conclude that defendant adequately presented to the trial court, and preserved for appeal, his claim of procedural error relating to imposition of a departure sentence based on the victim's color.

So Apprendi, Blakely, and Dilts, are all state cases arising out of guilty pleas; and all treat claims apparently preserved under state procedural rules.

I have looked at the opinion the briefs, and the transcript of the oral argument, on the other hand, in Sullivan v. Louisiana, 508 U.S. 275 (1993). Sullivan was a state case involving a trial. The Supreme Court reversed because of a bad Cage instruction on reasonable doubt. It would appear that either no objection was made to the instruction in Sullivan or that everyone agreed implicitly that an objection didn't matter: there's not a hint of waiver or default in any of the documents. I haven't been able to find the briefs of oral argument transcript for Cage. But the per curiam opinion doesn't say anything about an objection to the reasonable doubt instruction.

I really don't know what to make of it all. Does anyone else?

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