Tuesday, June 06, 2006

Burton: Retroactivity on the SCOTUS Menu . . . Yummm.

The Supreme Court has gone and done it: it's granted cert. in a Blakely retroactivity case. Another one out of Washington, wouldn't you know?

The case is
Burton v. Waddington out of the Ninth Circuit. (Sentencing Law & Policy has the cert. brief here. SCOTUSBlog has a brief blurb on the case here.

I have read the cert. petition and the petition in opposition quickly. There is more going on in this case than is almost possible to imagine. First, it is a habeas case. So put on your habeas beanies and put in some fresh batteries to make the propeller go whizzzz.

Second, from what I can tell from the briefs--the cert. petition in particular--the
Blakely violation, if any, arises out of the imposition of three consecutive sentences, not out of any single sentence being "exceptional" under Washington law. I could be wrong about that, and maybe someone from Washington will check in with superior knowledge. (There is a reason folks are licensed one state at a time. It's not entirely protectionism of the guild variety.)

So is SCOTUS going to giving us a double whammy: retroactivity
and the application of Blakely to consecutive sentences?

Or is it not going to be a retroactivity case at all, as Burton argues: just plain old
Apprendi applied "as our precedents make clear"? If so, then Justice O'Connor's worry in Blakely wil have be prescient.

I am not sure I understand what all the fuss about retroactivity is in the case or all the other federal cases to have considered the matter. Am I mistaken, or is it not the rule that a SCOTUS case is
not retroactive until the Court says it is? I'll have to look that up . . . for the third or fourth time now.

Because this is a habeas case, the relationship of any decision to state collateral proceedings will require careful analysis. And maybe one result will be, several and even maybe many years from now, a clearer understanding for all of the relationship between state post-conviction proceedings and federal habeas review.

Let me not leave it at vague generalities. Here is a very specific problem that could arise in Indiana. (Golly Gosh, as Justice Sullivan remarked at the beginning of the
Smylie oral argument way back when, there's so much, one hardly knows where to begin.) But let's say the Supreme Court says Blakely did announce a new rule. It also says that the new rule gets full retroactivity under the second Teague exception for increased accuracy.

Because of
Booker, it could do this without causing the slightest mess in the federal courts--I think. There would, of course, be a tremendous mess in the state courts for the foreseeable future. And you can bet the state courts will come up with whatever they can to limit the damage to final judgments.

But let's say it happens. So I have a client sentenced in, say, the early 90's. I file a successive post-conviction petition based on
Burton. Let's say that the Indiana Court of Appeals, which has unreviewable authority to grant or deny permission to file a successive petition--we do Little Fed here, in part, at least--says no.

That would be bad for the state courts, because then, quite quickly, I take my client to federal court and get
de novo review of the fed claims undecided by the state courts on the merits.

So let's say the Court of Appeals says yes. I litigate the successive petition. State court post-conviction retroactivity rules are not run by fed law. Indiana happens to do its version of
Teague which is not at the moment distinguishable, I think from what SCOTUS does. But presented with Burton, the Indiana Supreme Court would be absolutely free to say that Burton is not retroactive under Indiana's version of Teague. So I lose.

The biggest problem for habeas will be that I did not lose on any federal claim, although the federal claim was lost somewhere in no-man's land.

And I have a strong feeling that if SCOTUS issues a decision in
Burton that is potentially beneficial to criminal defendants, a lot of those people and their lawyers are going to find themselves in some version of procedural no-man's land--or limbo.

Different problems arise if the Supreme Court says that
Blakely did not not announce a new rule. They are equally staggering, though. If Blakely did not announce a new rule, then we're back to Apprendi. So in Indiana, one simple question will be: do all of the folks going back to Apprendi get to go back?

And there is the issue that I have discussed briefly in previous posts. Even if
Blakely is not retroactive in some States for some reasons, the second Teague exception almost certainly should apply to Blakely in Indiana. Before Blakely, there was no standard by which a judge had to find aggravating circumstances to impose an enhanced sentence. At most, the finding of aggravating circumstances simply had to be supported by the record.

Blakely, aggravating circumstances had to be found beyond a reasonable doubt. That seems to me to be the kind of increased

Without even getting to the habeas aspects, what happens if the Court says
Blakely applies to consecutive sentences? (The questions presented do not raise the issue. Why would the Supreme Court grant cert. on the other issues, if it is not prepared to say, "Of course Blakely applies to consecutive sentences"?) I'm not sure that there are anymore pipeline Blakely cases of any sort. Do the folks who lost, like Smylie, get to go back for more? (Smylie is long out, I believe, so he won't be going back. But there are a lot of others less fortunate.)

There is a whole raft of folks, I should think, who did not raise sentencing issues at all, because all they had were consecutive sentencing issues to raise. And they were dead on arrival after
Smylie. So if they try to get relief, will or can the Indiana Supreme Court apply its utterly bizarre Blakely procedural rule for the pipeline cases that only folks who challenged their sentence on direct appeal may benefit from Blakely--now Burton?

I guess I shouldn't go too far with
Blakely and consecutive sentencing in Burton, because I don't really know that Burton necessarily raises the issue. It sure looks to me like it does though.

So I will start collecting the note cards with the questions. It will be a large stack. Maybe I'll be able to track down some answers.

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