Tenth Circuit addresses Blakely retroactivity

Standing out among other circuit dispositions this week is the Tenth Circuit’s discussion of Blakely‘s retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005).  The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why “Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004.”

The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress.  Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.

UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral review.  So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.