Judge Cassell speaks on retroactivity

I have generally avoided reporting on the significant number of district court decisions that have denied efforts by defendants to raise Blakely/Booker issues through habeas actions.  But I did spotlight Judge Panner’s Siegelbaum opinion, since it provided perhaps a glimmer of hope on retroactivity, and today I am inclined to spotlight Judge Cassell’s effort in Rucker v. US, Case No. 2:04-CV-00914PGC (D. Utah Feb. 10, 2005) (available here) because of its thoroughness and notable dicta.

Not suprisingly, Judge Cassell, in line with the Seventh Circuit’s work in McReynolds, concludes that (1) the “approach to sentencing required by the Blakely and Booker decisions is a new rule,” (2) “it is a procedural rule about the allocation of fact-finding power between judge and jury and about proof beyond a reasonable doubt,” (3) the “Blakely/Booker rule does not implicate fundamental fairness,” and thus “the Blakely/Booker rule does not apply retroactively to Mr. Rucker (and others whose convictions became final before Blakely).”