Burton: How Are They Even Going to Get to Blakely's Retroactivity?

Wow. I don't want to turn this into the Burton blog, but there's so much to read and say. To give credit to the blog chain: Sentencing Law & Policy led me to Crime & Consequences. From there I landed at the Burton brief collection here, courtesy of the Criminal Justice Legal Foundation. That's what blogs are about: movement like an orangutan through the tops of trees in the rain forest.

I almost took Doug Berman's post at SL&P as a personal invitation:

But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

(And what about the application of Blakely to consecutive sentences, which is also presented by Burton?)

I have not thoroughly digested the State's (Respondent's) brief; but it does begin with the threshhold question of whether Burton's habeas petition was successive and therefore barred without express permission from the Ninth Circuit to file it. Here's what Crime & Consequences has to say about the question:

There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide.

But I think I have stumbled upon a solution to the problem that someone cleverer than I in Washington figured out at cert. time. The solution was suggested to me by the State's brief and its reliance on Slack v. McDaniel. Which sent me to 28 U.S.C. 2844(b) and eventually landed me in a fascinating death-penalty habeas case out of Indiana: Lambert v. Davis. Judge Ripple dissented from the conclusion that Lambert's petition was "successive." And I think that SCOTUS is going to repeat, in essence, Judge Ripple's Lambert dissent.

The gist of that dissent arises out of Slack, which points out that "second or successive petition" in 2244(b) is a term of art about which Congress knew in passing the AEDPA. It does not mean what it literally says, but incorporates the Court's prior "abuse of the writ" jurisprudence. Burton did not file repetitive habeas petitions; he merely split the baby between convictions and sentencing, because that's how his case fell out in the state courts. So, I expect SCOTUS is going to say at least that the district court had the discretion not to treat the petition challenging Burton's sentence as a "second or successive petition."

The discretion part has to be there because of language in the plurality opinion in Rose v. Lundy, which says that a petitioner who has filed a mixed petition with exhausted and unexhausted claims, and who decides to proceed with the unexhausted claims only, "risks" having dismissed as a successive petition a later petition that includes the formerly-unexhausted claims. (The site I occasionally use to test the readability of posts is going to go nuts with that sentence.) Rose, a 1982 case, was pre-AEDPA. But that is of no matter if the AEDPA language "second or successive petition" in 2244(b) merely incoporporated pre-AEDPA case law.

I personally find this whole approach hard to square with 2244(b)'s unambiguous language. But the language is only unambiguous, I guess, if you don't consider "second or successive petition" a term of art--which Slack says it is.

Which leads to an interesting twist. In Slack, Justices Scalia and Thomas dissented. Justice Scalia's dissenting opinion would lead one to think that neither Justice Thomas nor he would be sympathetic to Burton's having attacked first his conviction and then his sentence in successive petitions. At the same time, if Burton is going to receive any Blakely relief, one would have to suppose that both Justices Scalia and Thomas will be among those voting for that relief. How does that work?

I don't know if Burton is a horrible vehicle to decide the Blakely questions involved. It certainly presents a number of labyrinthine complications. But that's habeas: both divine and hellish.

Rehearing en banc in Lambert was denied in August. Maybe my sense of timing is off, but my guess is that Lambert's inevitable cert. petition is going to result in a GVR in light of Burton. Or nothing, if it turns out that Burton's a dud. (But how could that happen?)

Oy, my brain hurts. Time to watch baseball.