Blakely Blawg
Sunday, June 27, 2004
Blakely and Retroactivity? There's an argument that the rule stated in Blakely is not new, the court was merely applying Apprendi. That means the rule applies to case that were not yet final on direct review when Apprendi was decided.

Justice O'Connor appears to agree. She posits that sentences imposed after Apprendi (not just those on direct appeal when Blakely was decided) are "in jeopardy":
Every sentence imposed under such guidelines in cases currently pending on direct appeal is in jeopardy. And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opinion) ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final").
O'Connor, dissenting, slip op. at 11.


If it's not a new rule, it applies to far more than just cases that are not yet final on direct review (it applies to those cases automatically, remember). If Blakely isn't "new" for Teague purposes, then it applies to cases that are pending on collateral review,too, at least for those defendants who were sentenced after Apprendi came down in 2000. And those serving federal sentences arguably have a basis to bring a first sec. 2255 motion under paragraph 6(3), or possibly a second habeas under sec. 2241 via the savings clause. Complicated stuff - but exciting!
-- mad.
Oh, whoops -- realized that you referred to cases that were "not yet final on direct appeal when Apprendi was decided." You've got it right.
- mad.
I don't understand why you think it makes a difference whether or not Blakely is "new." Constitutional rules of criminal procedure apply to cases pending on direct review regardless of whether they are "new" or not. Griffith v. Kentucky, 479 U.S. 314 (1987). Or am I misreading your point?
It matters because there are many defendants whose direct appeals were final prior to Blakely. They were sentenced under unconstitutional sentencing schemes and will be looking for ways to present a Blakely/Apprendi claim.
Has the Supreme Court ruled that Apprendi announced a new rule? I didn't see that in Summerlin. If Apprendi is not a new rule (as the 5th Circuit has opined, I believe), then Blakely may reach well before Apprendi.
Justice O'Connor's speculation about retroactivity doesn't make sense to me. She suggests that "all [federal] criminal sentences imposed...since Apprendi...arguably remain open to collateral attack."

But Section 2255 petitions are limited to one year from:
(1) "the date on which the judgment of conviction becomes final" or
(2) "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."

(I excluded the other non-relevant parts of the statute of limitations.)

If the Supreme Court determines at some later date that the Blakely decision constitutes a "new right" that is made retroactively applicable to cases on collateral review (the Blakely decision itself does not so hold), then potentially all sentences (not just those imposed since Apprendi) would be subject to collateral attack.

But if the Blakely rule is not new, then only those whose convictions are less than one year old can use Blakely to obtain relief under Section 2255.

Am I missing something?
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