Smylie, I discovered quite accidentally, is not the only Indiana Blakely case looking for cert. Jaramillo v. State (Ind. March 11, 2005) is looking to go to Washington as well. I have not mentioned Jaramillo, although I should have. When it was decided by the Indiana Supreme Court just two days after Smylie last March, I didn't have enough energy to say all that needed to be said about Jaramillo. Smylie was taking it all out of me. And I regret very much not having revisited Jaramillo in the meantime.
Strictly speaking, Jaramillo is not a Blakely case. It is a Monge v. California case. And Monge is an Almendarez-Torres case.
And it gets more interesting. As in Smylie, the U.S. Supreme Court requested a response from the Indiana AG. The AG asked for 60 more days; and SCOTUS gave him 30--until Sunday. (I don't know whether that means that the response has to be in tomorrow or on Monday.) Originally, by the way, Smylie and Jaramillo were both scheduled for the September 26th conference. Here is the link to the Jaramillo SCOTUS docket. (I have also been told that filings often don't show up on the docket for as much as ten days because of all the security measures to which the mail is subjected.)
Has a decision on cert. in Smylie not been forthcoming, because it and Jaramillo are going to be considered together? They are so dissimilar that that seems unlikely. On the other hand, SCOTUS requested responses from the AG in both cases; and my information is that that happens only when someone in Washington is looking very closely at a case. What are the odds that the two cases would invoke requests for responses and be scheduled for the same conference without some connection? I guess they could be 100 percent.
I am not going to spill the beans in this post about what the real matter with Jaramillo is. (Unlike Dostoyevsky's Underground Man, I don't have an editor to stop me from going on and on.) But here's a clue to for those fanactic enough to do the reading. Compare the Indiana Supreme Court opinion with the earlier opinion of the Court of Appeals. Something very important is missing. In fact, what is missing is more important to Jaramillo than what is there.
I hope to have Jaramillo's cert. petition within a few days.
[Update: Here is the link to the Jaramillo cert. petition.]