More on Blakely‘s retroactivity

In Morris v. US, 2004 WL 1944014 (C.D. Ill. Sep 01, 2004), District Judge Jeanne Scott walks through the various steps of Blakely retroactivity analysis as carefully and as thoroughly as any court to date. Unlike the garbled ruling in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), Judge Scott’s analysis in Morris rightly reflects that Teague‘s retroactivity analysis only applies to “new” rules, and she comes to the conclusion that Blakely is a “new” rule despite the fact that it is arguably only an application of Apprendi. (See some background on these issue in the post and comments here.)

However, at the last step of her Teague retroactivity analysis, Judge Scott falls prey to a mistake common to many considering retroactivity by suggesting that the Supreme Court’s decision in Schriro conclusively forecloses the issue: “Schriro teaches, however, that such a right cannot be applied retroactively because it is not of the type fundamental to the concept of ordered liberty.” But, as I have stressed repeatedly before here and 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.