Paging habeas experts…

Though a number of courts have already spoken to Blakely retroactivity issues in various ways, I believe the new decision by Senior US District Judge Thomas J. McAvoy (NDNY) in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), is the first to do a complete Teague retroactivity analysis in order to deny a federal petitioner relief on a Blakely habeas claim.

Because I am not an expert on habeas law, I am hesitant to say Garcia got the law all wrong. But, I think I see at least two major flaws in Garcia‘s analysis of Blakely‘s retroactivity:

First, Judge McAvoy starts his analysis by asserting “Blakely did not announce a new rule of law, but extended the rule in Apprendi holding.” Id. at *14. I believe, if this is the case, then the Teague doctrine limiting retroactivity does not even apply. I am pretty sure Teague is a doctrine which applies only to “new” rules, not to the application of old rules. I believe this is why Justice O’Connor in her Blakely dissent said that, despite the High Court’s holding in Schriro that Ring was not retroactive, “criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.”

Second, when Judge McAvoy launches into his Teague analysis, he relies very heavily on the Supreme Court’s decision in Schriro to conclude “Blakely cannot be said to establish a watershed rule of criminal procedure,” id. at *16-*18, and thus does not fit into Teague‘s second exception to its doctrine limiting retroactivity of new rules. However, as I previously highlighted here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court’s opinion in SchriroSchriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.

Because habeas law is so complicated doctrinally, both as a consequence of Teague and its progeny and also because of Congress’ restrictions on habeas in AEDPA, my analysis here of Judge McAvoy’s ruling in Garcia may be all washed up. But because this issue is so important, I hope readers more knowledgeable about habeas law might use the comments for any important corrections or clarifications.