Smylie's Cert. Petition, Ryle, and Retroactivity

Here's a link to Smylie's cert. petition. (PDF, about 115KB.) It is also now in the sidebar under Recent Blakely Documents & Articles. Joe Cleary did a marvelous job making the argument (deceptively) simple and putting it in SCOTUS-speak. I hope to be able to nab the State's response, if any, come September 21st.

In putting this up, I noticed that we still have not heard from the Indiana Supreme Court in Ryle about Blakely, juvenile adjudications, and the prior conviction exception. With the April change in Indiana's sentencing statutes, perhaps the issue is not too pressing.

The only potentially breath-taking Blakely issue left, it seems to me, is retroactivity. Judge Bataillon's opinion from August 22nd in U.S. v. Okai (D. Neb.) is a very interesting place to start on that one. (Thanks to Sentencing Law & Policy in this post.) It's a forty-plus page opinion. Start at the bottom of page 17.

The citation to Ivan v. City of New York, 407 U.S. 203 (1972) (per curiam) for Winship's "full retroactivity" is interesting. As I read Ivan, it's not at all clear that "full retroactivity" means more than Griffith. That is, does Ivan stand for the proposition that Winship applies to cases pending on direct review when Winship was decided? Or does it say that cases already final as of Winship may be reopened?

Whatever the answer to that question--and I shall track it down--the following language from Ivan would suggest that upping the burden of proof for sentencing facts to beyond a reasonable doubt should, in fact, fit withing Teague's second exception:

Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.

Here's the language from the plurality opinion in Teague:

Finally, we believe that Justice Harlan's concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.

There isn't much daylight between the two. And while Judge Batallion writes of the moving from a preponderance standard to beyond a reasonable doubt (even after the Booker remedial opinion), recall that Indiana, under the old sentencing regimie at issue in Smylie, had no standard at all for the judicial finding of sentencing facts. To survive appeal, an enhanced sentence merely had to be base upon a judicially found aggravating circumstances supported by the record. Which leads to an interesting possibility: the jump from a preponderance standard to beyond a reasonable doubt might not, in the end, trigger Teague's second exception; a jump from nothing to beyond a reasonable doubt, on the other hand, might.