Washington State: Blakely applies to consecutive sentencing

Sentencing Law & Policy has this post about the Washington Supreme Court's decision yesterday in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006). The short of it: because there is a statutory presumption in Washington that sentences are to be served concurrently, any factual finding used to justify consecutive sentences is subject to Blakely.

Doug Berman says that the case "may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court." I'd say more than "dovetail." In the Burton oral argument, Jeff Fisher spent a great deal of his time answering questions about consecutive sentencing in Washington. He fends off Justices Souter, Breyer, and Stevens on this issue in pages 4-9 of the transcript. And then he has to deal with Chief Justice Roberts' question beginning on page 9:

CHIEF JUSTICE ROBERTS: I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?

MR. FISHER: Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.

CHIEF JUSTICE ROBERTS: So you'd have --

MR. FISHER: Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.

CHIEF JUSTICE ROBERTS: And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?

MR. FISHER: That's right.

CHIEF JUSTICE ROBERTS: So under this system if you had a regime where if you're convicted of murder
and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.

MR. FISHER: If the judge needs to make an extra finding beyond the elements of either of those two
crimes to run them consecutively, then it would violate Blakely.

THE COURT: But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?

MR. FISHER: You haven't had a case in the Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crime for conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered.

At page 35, the State argues:

MR. COLLINS: So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact.

Whatever other problems Burton may have--and there are a number--Van Delft directly resolves this particular dispute. (Fisher was correct; and there really should not have been much of a dispute about this. It is a pity that so much argument time was spent on it.)

Of course, the Indiana Supreme Court in Smylie already has held that Blakely does not apply to Indiana's pre-fix consecutive sentencing provisions. Because there was a judicially imposed requirement that consecutive sentences be supported by an aggravating circumstance, I was not sure why. I am even less sure now.

I still think that Burton, despite its problems, is going to be a blockbuster. Why else grant cert in an unpublished 9th Circuit case that affirms the denial of habeas relief? And whatever the result, you have to love Fisher's strategy: Blakely was compelled by Apprendi--indeed, it was no different. You don't like that? O.K., Blakely was so new and fundamental that it should be applied retroactively, not just back to Apprendi, but to the beginning of time.

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.