Retroactivity contrasts and contentions
As noted by Appellate Law & Practice here, the Second Circuit yesterday in Guzman v. United States, No. 03-2446 (2d Cir. Apr. 8, 2005) (available here), expressly held that Booker “does not apply to cases on collateral review where the defendant’s conviction was final as of January 12, 2005, the date that Booker issued.” This ruling makes a total of five circuits, as detailed here, that have spoken to this issue — the 2d, 6th, 7th, 10th and 11th — and all five have declared Booker is not applicable to cases which became final before the decision.
But the story of retroactivity is much more dynamic than this pattern of federal circuit decisions might suggest. As spotlighted here, this past week a Colorado appellate court in Johnson decided that “[b]ecause Blakely explains and clarifies Apprendi, we apply it retroactively to defendant’s sentence, which was imposed after Apprendi was announced.” That is, the Colorado court has concluded that Blakely is not a new rule, but rather an application of Apprendi that should be applicable to all cases not yet final in June 2000 when Apprendi was decided.
Moreover, despite the fact that no other courts, to my knowledge, have yet expressly declared Blakely or Booker retroactive, there are a number of interesting arguments being developed to support retroactivity claims. As noted previously here, a recent Harvard Law Review note, Rethinking Retroactivity, 118 Harvard Law Review 1642 (2005), argues that the Supreme Court’s decision in Schriro, which most lower courts cite to find against retroactivity, actually supports the retroactive application of Apprendi‘s reasonable doubt holding. A lawyer from New Jersey recently sent me a letter brief, which can be downloaded below, that builds on this article to argue that “proper application of the retroactivity test of Teague v. Lane requires retroactivity of Apprendi.”
Taking a different tack, another lawyer operating in federal court has sent me a motion which argues more broadly that Teague v. Lane is simply not applicable to the question of Booker‘s retroactive application. That motion, which can also be downloaded below, spotlights that “the U.S. Supreme Court has never held that Teague v. Lane is applicable, either in its entirety or in part, to federal inmate’s petitions under § 2255.”
I have posted a lot previously about these and related retroactivity issues, and below I have linked some of my major pre-Booker posts discussing retroactivity. Also, all my more recent posts on this topic are collected at this link.
- Thoughts and holdings on Blakely retroactivity
- Thoughts on Retroactivity and Clemency
- More on Blakely‘s retroactivity
- Pragmatism and Blakely‘s retroactivity
- Careful retroactivity analysis from WD of Virginia