THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890

Is Booker  and Fanfan Applicable to a Timely, Initial 2255 Petition

Sixth Amendment Right to Jury Trial
*3
In Apprendi v. New Jersey, the United States Supreme Court concluded that the due-process and jury-trial guarantees in the United States Constitution require that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). In Blakely the Court applied Apprendi to a state determinate sentencing provision that had analytical resonance with the federal sentencing scheme. Thus, Quirion's belief that Blakely (cum Booker ), might offer him succor.
With respect to the merits [FN1] of this ground, Quirion is out of luck for two reasons. On the same day that Blakely was handed down, the United States Supreme Court concluded that one of Blakely' s direct ancestors, Ring v. Arizona, 536 U.S. 584 (2002)--which applied the principle of Apprendi to death sentences imposed on the basis of aggravating factors--was not to be applied retroactively to cases once they were final on direct review. See Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2526 (2004) ("Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review."). In the wake of Blakely, most courts that considered the question have concluded that Summerlin answered the retroactivity question in the negative vis--vis Blakely grounds pressed in timely 28 U.S.C. 2255 motions. See, e.g., Burrell v. United States, 384 F.3d 22, 26 n. 5 (2d Cir.2004) (observing this proposition in affirming the District Court's conclusion that the movant was not entitled to a certificate of appealability on the question of whether Apprendi applied retroactively); Lilly v. United States, 342 F.Supp.2d 532, 537 (W.D.Va.2004) ("In Summerlin, the Court found that Ring v. Arizona, 536 U.S. 584 (2002), a case that extended Apprendi to aggravating factors in capital cases, was a new procedural rule and was not retroactive. A similar analysis dictates that Blakely announced a new procedural rule and is similarly non-retroactive.") (citation omitted); accord Orchard v. United States, 332 F. Supp, 23 275 (D.Me.2004); see also cf. In re Dean, 375 F.3d 1287, 1290 (11th Cir.2004) ( "Because Blakely, like Ring, is based on an extension of Apprendi, Dean cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review. Accordingly, Dean's proposed claim fails to satisfy the statutory criteria [for filing a second or successive 2255 motion].").

FN1. As mentioned, Quirion did not take a direct appeal and this Sixth Amendment challenge is the type of challenge that should have been pursued through a direct appeal. Quirion attributes this default to his status as a lay person and his counsel's ineffectiveness.


The 'merits majority' in Booker expressly affirmed the holding of Apprendi concluding: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." ___ U.S. at ___, 2005 WL 50108, at * 15; see also Sepulveda v. United States, 330 F.3d 55, 63 (1st Cir.2003) ("We hold, without serious question, that Apprendi prescribes a new rule of criminal procedure, and that Teague does not permit inferior federal courts to apply the Apprendi rule retroactively to cases on collateral review."). The fact that Booker applied Apprendi to the United States Sentencing Guidelines, as opposed to a state capital sentencing scheme, would not shift the tectonic plates of the Summerlin retroactivity analysis. What is more, Quirion is challenging the imposition of a sentence based on prior convictions and Booker expressly reaffirmed the carving out of prior-convictions from the Apprendi Sixth Amendment mandate. See United States v. Stearns, 387 F.3d 104, 107 (1st Cir.2004) (concluding that Blakely does not support challenge to sentences enhanced due to prior convictions).


Quirion v. U.S.  L 83832, *2 -3  (D.Me.,2005)

THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890