Saturday, April 02, 2005

Strong: Another denial of transfer.

In going over the transfer list from last week, I see that yet again I missed a page or two scrolling through the document. It turns out that transfer was denied in Strong (11/05/04), one of the first cases to apply Blakely in reversing a sentence. (The Court of Appeals also issued a rehearing opinion on 1/12/05 reaffirming its earlier holding that a defendant did not have to have made an Apprendi objection to preserve a Blakely claim.)

Strong also provides a follow up to my posts (here and here) about Judge Robb and Chief Judge Kirsch: 1) voting for forfeiture of Blakely claims in unpublished opinions; 2) then against forfeiture in a published decision; and 3) then later against rehearing on the forfeiture issue in at least one of the unpublished decisions. Strong was the first explicit no-forfeiture published decision that predated the unpublished decisions. Strong had not been certified at the time Judge Robb and Chief Judge Kirsch voted with Judge Baker in Payne and Campbell to require an Apprendi objection in the trial court to preserve a Blakely claim, so it didn't mean anything, I guess one could say in the judges' defense.

The denial of transfer in Strong may be interesting with respect to Smylie's forfeiture rule. Recall from this post that transfer has been granted in Aguilar, and that my guess is that it is to say that Aguilar forfeited his Blakely claim by not challenging his sentence under state law in his opening brief and by then raising Blakely for the first time in a petition for rehearing.

Strong did not raise Blakely until an amended opening brief. I am trying to find out if the original opening brief included a state law challenge to Strong's sentence. If it did not, I'd say the application of Smylie's forfeiture rule will have grown a bit more interesting: amended briefs get you in; rehearing petitions don't. I guess we'll see.

No comments: