Issues
The Supreme Court in Blakely ruled that mandatory state sentencing guidelines are the statutory maximum for purposes of applying the Apprendi rule, which prohibits judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by the jury beyond a reasonable doubt. Is the holding in Blakely a new rule that cannot be applied retroactively, or is it instead dictated by the earlier holding in Apprendi?
A jury convicted Petitioner Lonnie Lee Burton of rape, robbery, and burglary. After initially choosing to run Burton’s robbery and burglary convictions concurrent with his rape conviction, the sentencing judge on remand imposed the same 562-month aggregate sentence but ran the three convictions consecutive to each other after finding that Burton’s earlier sentence was too lenient. As a result, Burton’s sentence was 258 months above the 304 month ceiling of the statutory sentencing range. Burton contends that the sentencing court acted in violation of Blakely v. Washington. Burton further contends that the rule from Blakely, decided after his sentence became final, is not a new rule, but rather a rule dictated by the earlier case Apprendi v. New Jersey. The U.S. Supreme Court will decide whether the holding in Blakely is a new rule or is in fact dictated by Apprendi. If Blakely is a new rule, the Court will decide whether it applies retroactively. A decision for either side has the potential to change the amount of discretion that judges exercise when sentencing defendants.
Questions as Framed for the Court by the Parties
Petitioner was given an exceptional sentence of 258 months above the 304 month ceiling of the statutory sentencing range, a sentence that became final after Apprendi v. New Jersey, but before Blakely v. Washington:
- Is the holding in Blakely a new rule or is it dictated by Apprendi?
- If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?
Facts
On October 18, 1991, Petitioner Lonnie Lee Burton followed a 15-year-old Washington boy home from school. State v. Burton, 2000 WL 987045 (Wash.App. Div. July 17, 2000) at 1. Posing as a salesman, Burton forced his way into the house where he raped the boy at gunpoint and stole $160. Id. A few days after the incident, Burton left Washington for Indiana. Id. Once in Indiana, the authorities detained Burton for reasons unrelated to the rape of the 15-year-old boy. Id. At his trial, a jury convicted Burton of rape, robbery, and burglary, all in the first degree. Id.
One year after imposing consecutive sentences totaling 562 months, the trial court amended Burton’s sentence because an overturned prior conviction required a new sentence calculation. Id. In imposing a new sentence, the sentencing court ran the robbery and burglary convictions concurrent with the rape conviction rather than consecutive to each other (nonetheless, the aggregate sentence totaled 562 months). Id. In Burton’s first appeal, the Court of Appeals of Washington (the state’s intermediate court) concluded that Burton’s new sentence was not excessive, but, because Burton was eligible for fewer good time credits than in his original sentence, the Court presumed vindictiveness and remanded the case for resentencing. Id. On remand, the sentencing court imposed the same 562-month aggregate sentence but ran the three convictions consecutive to each other. Id. Consequently, Burton’s sentence was about 21 years longer than the statutory maximum sentencing guidelines suggested. Burton again appealed to the Court of Appeals of Washington, challenging the sentencing court’s decision to run his robbery and burglary sentences consecutively as an “exceptional sentence.” Id. at 4. The Court affirmed Burton’s sentence, concluding that the sentencing court properly found Burton’s sentence too lenient and correctly imposed exceptional consecutive sentences. Id.
After exhausting his direct appeals, Burton petitioned the district court for a writ of habeas corpus. Burton v. Waddington, 142 Fed. Appx. 297, 298 (9th Cir. 2005). After the district court denied his petition, Burton appealed to the United States Court of Appeals for the Ninth Circuit on the grounds that his sentence, 258 months above the 304 month ceiling of the statutory sentencing range, was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Id. at 299. The U.S. Supreme Court in Apprendi was concerned that independent fact-finding by judges violated the defendant’s Sixth and Fourteenth Amendment rights. Apprendi, 530 U.S. 466. Therefore, the Court held that those amendments prohibit courts from making their own findings to impose sentences above the “statutory maximum” permitted by the verdict alone. Instead, such facts must be proven to a jury beyond a reasonable doubt. Brief for Petitioner at 5. In Blakely, the Court affirmed the holding in Apprendi, but extended that holding to facts supporting a sentence above the standard sentencing range in a legislatively-prescribed sentencing guidelines system. Blakely, 542 U.S. 296.
The Court of Appeals upheld the District Court ruling, finding that Blakely, decided after Burton’s conviction became final, established a new rule that did not apply retroactively to Burton’s habeas petition. Id. Burton then appealed to the United States Supreme Court, arguing that Blakely is not a new rule, but rather a rule dictated by Apprendi, which was decided before Burton’s sentence became final. The U.S. Supreme Court granted certiorari on June 5, 2006.
Analysis
Petitioner Burton’s Argument
First, Burton argues that Blakely is not in fact a new rule. See Brief for Petitioner at 12. Burton explicates that when a decision merely applies a rule set out in a previous case, it does not create a new rule. See Id. at 13. The Blakely decision did nothing more than apply the rule of Apprendi, which the Blakely language itself makes clear; at the beginning of its analysis, the Blakely court stated that “[t]his case requires us to apply the rule we expressed in Apprendi v. New Jersey..." (adding emphasis and quoting Blakely, 542 U.S. at 301). See Brief for Petitioner at 19. In addition, none of the dissenters in Blakely argued that Apprendi did not compel the result reached by the majority. See Id. at 20. The closest they came to arguing against Apprendi was to say that “it mean[t] what it said,” which is not the same as stating that Blakely was announcing a new rule; in order for an opinion to announce a new rule, it must “break new ground” in a way necessary to its holding, and Blakely did nothing of the sort. See Id.
Next, Burton contends in the alternative that if Blakely is in fact a new rule, it meets the criteria to be a “watershed rule of criminal procedure.” See Id. at 26. Under the Tyler standard, the Blakely rule, if infringed, seriously diminishes the likelihood of obtaining an accurate conviction, and it involves “bedrock procedural elements essential to the fairness of a proceeding.” See Id. at 27. If Blakely's substitution of the reasonable doubt standard for the traditional preponderance of the evidence standard is ignored or infringed, the risk of factual errors that may result in the conviction of an innocent defendant is greatly increased. See Id. at 29. In addition, Burton argues, both components of the Blakely rule, the reasonable doubt standard and the jury trial, are “bedrock procedural elements.” See Id. at 31. The reasonable doubt standard provides “concrete substance for the presumption of innocence,” and an error involving that standard fundamentally undermines the fairness of a judicial proceeding. See Id. at 32. Even if the reasonable doubt standard did not constitute a “bedrock procedural element,” the jury trial component of the Blakely rule certainly would; the importance of the right to a trial by jury is not in any doubt whatsoever. See Id. at 33. Blakely should therefore be considered a “watershed rule,” and applied retroactively under Teague. See Id. at 36.
Respondent Government’s Argument (on behalf of Superintendent Douglas Waddington)
Before addressing the merits of Burton’s argument, Waddington claims that the district court should have denied Burton’s current habeas corpus petition, and he is therefore not entitled to relief. See Brief for Respondent at 8. Because Burton’s current petition is a second or successive petition for habeas corpus, and he did not comply with the gate-keeping requirements of 28 U.S.C. § 2244(b), the district court did not have jurisdiction to consider the current petition. See Id. Under 28 U.S.C. § 2244(b)(2), a claim presented in a second or successive habeas petition that was not presented in the first one must be dismissed, unless it relies on a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court, or on a basis in fact that could not have been discovered earlier through due diligence. See Brief for Respondent at 8, 9. Also, under 28 U.S.C. § 2244(b)(3)(A), the petitioner is required to obtain an order from the court of appeals which authorizes the district court to consider a second or successive petition before the district court may do so. See Brief for Respondent at 9. Burton failed to obtain the required authorization from the Ninth Circuit to file his second petition, but even if he had, the court could not have granted it because Burton’s current petition does not fall under either of the two exceptions provided in 28 U.S.C. § 2244(b)(2). See Brief for Respondent at 15. No issue of undiscovered fact is claimed, nor has a Supreme Court holding made the Blakely rule retroactive, and the Supreme Court cannot determine Blakely's retroactivity in this case. See Id.
Waddington then argues that Blakely does not apply retroactively in federal habeas proceedings. See Id. He claims that Blakely is a new rule under the previously-discussed Teague standard, “imposing on state courts a new obligation that reasonable jurists overwhelmingly believed was not dictated by prior precedent.” See Id. Apprendi held that any fact, apart from a prior conviction, that increases the sentence beyond the statutory maximum for a given crime must be proved to a jury beyond a reasonable doubt. See Id. While Apprendi "contemplated a traditional statutory maximum," Blakely expanded Apprendi to clarify that this traditional statutory maximum is the maximum sentence that can be imposed strictly on the basis of the facts admitted by the defendant or reflected in the jury verdict. See Id. at 16. Since reasonable jurists believed that the Supreme Court's precedent did not require this extension of Apprendi, the Blakely rule should be considered new. See Id. at 19.
Also, Waddington argues that Blakely cannot be applied retroactively, because the rule in Blakely is procedural, not substantive. See Id. at 30. In order for a new procedural rule to be applied retroactively, it must be a “watershed rule of criminal procedure” that implicates the “fundamental fairness and accuracy” of the proceeding. See Id. at 30, 31 (quoting Tyler v. Cain, 533 U.S. 656, 665). Since the Blakely rule neither “alter[s] our understanding” of the “bedrock” procedural elements that ensure a proceeding’s fairness, nor seriously damages the chance of obtaining an accurate conviction if infringed, it is not considered a “watershed rule,” and therefore cannot be applied retroactively. See Id. at 31.
Finally, Waddington argues that whether Blakely can be applied retroactively or not, it cannot be grounds for granting Burton habeas relief, because it was not a clearly established rule of federal law under 28 U.S.C. § 2254(d)(1) at the time of Burton’s conviction. See Brief for Respondent at 38. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may not grant habeas relief on any claim fully adjudicated on the merits in state court unless the state court’s adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Only the holding of a case, not the dicta, constitutes this determination, and the holding in question must have been in existence at the time of the state court’s decision. See Brief for Respondent at 38, 39. Here, Waddington points out that the Blakely holding did not exist at the time of the state court’s decision in Burton’s case. See Id. at 40. Also, on Waddington's view, Burton’s sentence did not violate the holding of the court in Blakely; since the statutory maximum for Burton’s three charges would be life imprisonment for each charge, the 562-month sentence given to Burton does not exceed the statutory maximum, whether served concurrently or consecutively. See Id. at 43. Further, the Ninth Circuit’s decision in consistent with the decisions of the other circuit courts concerning the application of Blakely in federal habeas proceedings.
Discussion
The holding in Apprendi prohibits judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by the jury beyond a reasonable doubt. In that case, Apprendi pleaded guilty to weapons possession charges. Each count carried a sentence of between 5 and 10 years in prison. As part of the plea bargain, the prosecution reserved the right to seek an enhanced sentence on the basis that the crime was committed with a biased purpose of racial animus. Such an enhancement would have doubled the sentence otherwise imposed for each of the crimes. The trial judge found by a preponderance of the evidence that Apprendi's crime was motivated by the race of the victims and, consequently, sentenced Apprendi to 12 years in prison—2 years greater than the 10-year sentence otherwise authorized by the findings at the plea hearing. The U.S. Supreme Court agreed to review Apprendi’s case. Upon review, the Court formulated the following rule: “Other 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.”
The U.S. Supreme Court in Blakely ruled that mandatory state sentencing guidelines are the statutory maximum for purposes of applying the Apprendi rule. Blakely involved the sentencing of a Washington man who had pled guilty to kidnapping his estranged wife. The Washington sentencing scheme required standard sentences according to statutory guidelines unless the judge found "aggravating circumstances." In Blakely's case, the judge independently found that Blakely had acted with "deliberate cruelty" when kidnapping his wife. The judge gave Blakely an exceptional sentence of 90 months—37 months over the 53-month standard sentence. Blakely appealed his sentence in state court as a violation of his Sixth Amendment right to a jury trial. The Washington Court of Appeals affirmed the trial judge's sentence determination. The U.S. Supreme Court granted review of Blakely’s case and reversed the Washington Court of Appeals and remanded Blakely’s sentence for redetermination and reduction. The Court ruled that the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or confessed to by the defendant.
Here, Burton appealed to the United States Court of Appeals for the Ninth Circuit, arguing that his sentence is unconstitutional under Blakely because the jury made no findings about the propriety of his exceptional sentence for the rape. The Court of Appeals, relying on Teague v. Lane, 489 U.S. 288 (1989), concluded that Blakely was a new rule that did not apply retroactively. In Teague, the Court held that a new rule applies to all cases pending on direct review, but is unavailable for collateral attacks (such as petitions for writs of habeas corpus) if the rule was decided after a person’s direct appeals are exhausted. The Court recognized, however, that a new rule should be applied retroactively if it required the observance of “those procedures that . . . are 'implicit in the concept of ordered liberty.’” Id. at 307 (quoting Mackey v. United States, 401 U.S. 667, 693 (1971)). The Court noted that this exception should be reserved for “watershed rules of criminal procedure.” Id. at 311. A rule is watershed if it alters “our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. Id. at 312.
Burton’s sentence became final after Apprendi, but before Blakely. The Supreme Court has granted certiorari to consider whether the rule announced in Blakely is a new rule, or one dictated by the earlier holding in Apprendi. If Blakely is not a new rule but was dictated by Apprendi, then Burton’s conviction should be reversed on habeas—along with all the prisoners convicted after Apprendi whose sentences were enhanced by judicial fact finding. If the rule in Blakely is a new one not dictated by prior precedent, then, under Teague, it should not retroactively apply to Burton’s collateral attack unless it is determined to be a watershed rule that alters “our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” 489 U.S. at 312.
Some argue that applying the burden-of-proof holdings of Blakely and Apprendi retroactively will serve to bolster the core purpose of the writ of habeas corpus—ensuring against conviction and punishment of those who are innocent of committing the crime. See Brief of Amici Curiae the Nat’l Assoc. of Crim. Defense Lawyers and the Washington Assoc. of Crim. Defense Lawyers Supporting Petitioner at 16. Ensuring that criminal trials are conducted in a fair and proper manner is fundamental to the individual liberties guaranteed by the Bill of Rights, including the right to trial by jury, a central issue in this case. Id. at 1. Others argue, however, that “retroactivity would potentially open a staggering and immeasurable number of sentences to collateral attack in both state and federal courts.” See Brief of Indiana et al. as Amici Curiae Supporting Respondent at 1. Relitigating presumptively valid sentences on collateral review would require states to “undertake a massive realignment of resources and priorities of their judicial, prosecutorial, public defender, and correctional agencies.” Id.
If the reason for the Apprendi and Blakely rules is “the need to give intelligible content” to the rights of jury trial and proof established beyond a reasonable doubt, 542 U.S. at 305, in order to prevent legislatures from eviscerating those rights “there must be a constitutional line that establishes a category of facts to which those rights always attach.” See Brief for the United States as Amicus Curiae Supporting Respondent, at 22. The Court’s decision in Burton will undoubtedly help to define that constitutional line.
Conclusion
The Sixth Amendment right to jury trial is a basic right afforded all defendants in criminal prosecutions. The Supreme Court in Burton v. Waddington will decide whether the holding in Blakely is a new rule or is in fact dictated by Apprendi. If Blakely is a new rule, the Court will decide whether it applies retroactively. The Court’s holding will ultimately determine whether, and to what extent, new rules of criminal procedure can be applied retroactively to earlier cases.
Written by:
Emily Green
Kiernan Joliat