1. APPLICATION TO CASES NOT YET FINAL ON APPEAL
A case is not yet final on appeal if the time for filing a petition for certiorari has not expired or if a petition has been filed with the Supreme Court, it has not yet been denied. A case on appeal that has not yet been decided by the court of appeals is not yet final on appeal, of course.
Under Griffith v. Kentucky, 107 S.Ct. 708 (1987), a criminal defendant is entitled to application of a new rule of law to any case that is not yet final on appeal.
Less clear is what standard would apply to this appellate review. If no express Blakely objection had been made in the trial court, the appellate review would probably be subject to the plain error standard of United States v. Olano, 113 S.Ct. 1770 (1993). Plain error requires that the error be (1) plain, (2) affect substantial rights, and (3) seriously affect the fairness, integrity or public reputation of the judicial proceedings. Cf. United States v. Cotton, 122 S.Ct. 1781 (2002). A defendant may be able to meet this test so long as there was a genuine factual dispute at sentencing about the guideline factor. If there were no factual dispute about the guideline enhancement factor, then the defendant may not be able to meet the plain error test, if there was overwhelming evidence that the factor existed, or if the factor were stipulated to, either at sentencing or in a plea agreement.
If a Blakely objection was made at sentencing, then the appeal will probably be subject to harmless error review. That standard requires a showing or prejudice only.
If your case is not yet final on appeal, you should include in your brief (or move to supplement your brief if it has already been filed), a Blakely argument.
2. APPLICATION TO CASES THAT ARE ALREADY FINAL ON APPEAL BUT AS TO WHICH NO 2255 MOTION HAS BEEN FILED AT ANY TIME, EITHER WITHIN THE ONE YEAR TIME LIMIT OR AFTER THE ONE YEAR TIME LIMIT.
Persons may wish to make alternative arguments about Blakely in a first 2255 or 2254 filed within the one year time limit. One approach is to argue that Blakely is not a new rule but is merely an extension of Apprendi to a new context, the guidelines. If Blakely is not announcing a new rule, then a habeas petitioner should be entitled to its application to his first and timely habeas under Yates v. Aiken and Penry v. Lynaugh.
Alternatively, one would argue that Blakely is in fact a watershed new rule in which case it would apply retroactively, under the Teague v. Lane analytical rules.
3. APPLICATION TO CASES IN WHICH A PRIOR 2255 HAS BEEN FILED
It would appear under the
holding of Tyler v. Cain, 121 S.Ct. 2478 (2001) that a successive 2255
cannot be filed unless the Supreme Court in some later case holds that Blakely
is to be applied retroactively. If the Supreme Court were to hold Blakely
retroactive, then litigants would have one year under AEDPA to file a successive
2255. To file a successive 2255 one must petition the court of appeal for
However, there is a split in the circuits as to when the one year time limit would begin to run. The Eleventh Circuit holds (Dodd v. United States, 365 U.S. 1273 (11th Cir. 2004) that the one year time limit runs from the date of the original decision, not the date that the Supreme Court (or a Circuit Court), later holds it to be retroactive. That means that under the 11th Circuit's interpretation you must file a successive 2255 within one year of Blakely (no later than June 24, 2005) or you will be outside the time limit. [November 29, 2004 the United States Supreme Court granted certiorari on the Dodd case.]
The one year time limit for filing a 2255 motion is not necessarily a bar to filing a 2255 motion raising a Blakely claim. It is generally considered that the one year time limit can be overcome by a new rule of constitutional law so long as the district court determines that the new rule is to be given retroactive effect. 28 U.S.C. 2255(3). Unlike successive petitions (meaning a second or more 2255 petition), which may only be filed on new law claims if the Supreme Court itself has expressly held the new rule to apply retroactively, Cf. Tyler v. Cain, 121 S.Ct. 2478 (2001), original 2255 petitions and petitions filed after the one year time limit (an exception to which time limit is new rules of constitutional law), may be determined to apply retroactively by the district court in the first instance. Cf. Howard v. United States, No. 03-11919 (11th Cir. June 25, 2004). This determination is made applying the retroactivity principles of Teague v. Lane, 109 S.Ct. 1060 (1989), which requires the retroactive application of new rules of constitutional law under limited circumstances. First the rule must be new, that is, not dictated by existing precedent, and this includes a rule that extends an existing rule (such as Apprendi) into a new context. Second, retroactivity is limited to "watershed rules of criminal procedure" that relate to the accuracy of the conviction and alter our understanding of the bedrock procedural elements essential to the fundamental fairness of a proceeding.
The bottom line of that is that the Supreme Court has never found any new rule to satisfy the Teague retroactivity claim. Circuit courts have found some few limited Teague exceptions. Ominously for Blakely retroactivity, the same day the Supreme Court decided Blakely it decided Schriro v. Summerlin, in which the high court held that Ring v. Arizona, 122 S.Ct. 2428 (2002)(which extended Apprendi to the death penalty decision) was not retroactive under Teague. This may foretell that the Supreme Court and lower courts will not find Blakely retroactive either. However, my personal view is that Blakely should be held to apply retroactively, because in my opinion it clearly is a watershed rule and alters our understanding of the procedural elements essential to fundamental fairness.
If it were determined to apply retroactively, then the same plain error standard discussed above would presumably apply.
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