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Challenges to Upper Term Sentences After Cunningham v. California

January 23, 2007

(Updated Jan. 26, 2007)

Introduction and General Caveat

On January 22, 2007, the U.S. Supreme Court decided Cunningham v. California, no. 05-6551, 549 U.S. ___, ___ S.Ct. ____, holding that California's Determinate Sentencing Law (DSL) violates the right to a jury trial and proof beyond a reasonable doubt, by allowing judges to conduct fact-finding on aggravating factors used to impose an upper term sentence. (Documents relating to Cunningham, including links to dockets, can be found here.) There are numerous permutations of case status and potential procedures for raising the Cunningham issue, especially now, right after the decision. We anticipate that the California Supreme Court may soon take one or more cases and provide guidance as to the remedy for Cunningham error in different types of cases and the method for implementing that remedy.

However, until the California Supreme Court provides guidance, most of you have cases that went through the Court of Appeal raising Blakely/Cunningham error, and you are now faced with the decision of what, if anything, to do in your specific cases. The suggestions and analysis below are meant to provide some general approaches and are offered in the spirit of things to try until such time as the California Supreme Courts provides definitive answers to the Cunningham permutations. In addition to the suggestions given here, the other appellate projects are considering options and you might want to peruse their web sites to see if there are additional and/or different approaches suggested. Also, we will soon be posting samples of motions, writs, and other pleadings to be used in raising Cunningham claims.

Below, we provide:

I. A general triage approach to cases.

II. A general comment concerning compensation.

III. Specific suggested procedures for raising Cunningham claims depending on the current status of the case.

IV. A Note on questions of remedy.

V. A Note on questions of retroactivity.

VI. A Note on Waiver and Guilty Pleas.

But a few aspects of these topics---timing, deciding which court to file in, and a comment on the upper term issue---are preliminarily addressed immediately below, as part of this introduction:

Act or wait?

As noted, the California Supreme Court is likely to act, hopefully soon, and to resolve questions about Cunningham error, harmless error, and remedy. So, if review has been denied and the case is final, should you wait or act soon? Consider the various pros and cons. If the defendant will soon fully serve his or her term, do not wait. Otherwise, either acting now or waiting could be reasonable.

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Table of Contents

Triage of Cases Post-Cunningham


Presenting Cunningham Claims



Waiver and Guilty Pleas

Other Resources
Sample Brief Page

Standing Orders

3d Dist., 4th Dist., 5th Dist.

Pending Legislation

SB 40

The ABC's of Preserving Apprendi-Blakely-Cunningham Claims Following the Cunningham Cert. Grant (Feb., 2006)
Blakely, Booker, and Black. Now What? (June, 2005)

ADI's "Taking Advantage of Changes in the Law"

ADI's Memo on Cunningham (1/29/2007)

Cunningham Documents:

  • SCOTUS docket 05-6551
  • Court of Appeal docket: A103501
  • Cal. Supreme Ct. docket: S133971
  • SCOTUS Opinion (Jan. 22, 2007)
  • SCOTUS Oral Argument Transcript
  • Briefs on the Merits on the U.S. Supreme Court (via ABA)
  • Petition for Writ of Certiorari (PDF) Petition for Writ of Certiorari (WP)
  • California's Brief in Opposition to Petition for Cert.
  • Petitioner's Reply Brief in Support of Petition for Writ of Certiorari
  • Supplemental Opening Brief Filed in California Court of Appeal
  • Cal. Court of Appeal Opinion and Modification
  • If you act soon, there is not likely to be any harm if the California Supreme Court subsequently resolves any Cunningham issues; however, waiting might ultimately save you some unnecessary work. There is also no guarantee the California Supreme Court will act expeditiously, though the next weeks should tell us if the Court will act quickly to take more Cunningham cases and/or are set briefing or argument in cases still pending in that court. As noted, there is no set answer to the timing of taking action in cases where review has been denied. (Note: if the case was one where a certiorari petition has been filed in the U.S. Supreme Court , that court will be remanding the case back to the Court of Appeal and the judgment of the Court of Appeal will be vacated and the case should be re-opened for further Court of Appeal consideration, including new briefing; so there should be no need to take any further action now in such a case.) If there has not been any change in the DSL yet in response to Cunningham (see note on remedy below), it might be best to act soon.

    However, there are two post-remittitur situations in which counsel should not wait. First, if the certiorari window is still open - i.e, within 90 days after the California Supreme Court’s order denying review - it may be prudent for counsel to proceed to file a certiorari petition asking the U.S. Supreme Court to “GVR” the case. That is, the petition would ask the Court to Grant certiorari, Vacate the California appellate opinion, and Remand the case for reconsideration in light of Cunningham. (Or, if review was denied a very short time ago, such that there is time for the Court of Appeal to act before counsel would have to file the certiorari petition, counsel may consider filing a motion in the appellate court to recall the remittitur in order to obviate the necessity of a certiorari petition and a GVR.)

    Second, for older cases, counsel should determine when the AEDPA statute of limitations for filing a federal habeas petition will expire. 28 U.S.C. § 2244(d). Ordinarily, the AEDPA deadline will be one year after the last date on which a timely cert. petition could have been filed (or, if there was a cert. petition, one year from the date the Supreme Court denied certiorari) (If the defendant previously filed a state habeas petition (on whatever grounds), the statute would have been “tolled” while that application was “pending.” We will not attempt to summarize here all the permutations for determining the AEDPA limitations deadline.) If it appears that the AEDPA limitations period is about to expire, counsel should not wait and should file a state habeas petition (or possibly a motion to recall the remittitur) before that deadline in order to ensure that the AEDPA statute is tolled. (There may be cases, such as where there are other federal claims, in which it may be preferable to proceed immediately with a federal petition, rather than renewing the Blakely-Cunningham claim in state court. However, in these materials we will be focusing on the state remedies available. )

    Which court?

    A consideration noted repeatedly below is whether to file an appropriate pleading in the Court of Appeal or in Superior Court. (Note: compensation for work done is discussed in Section II, below.) There is no set answer regarding which court is preferable, and you should carefully consider this on a case-by-case basis. Some pros and cons include: Ultimately, the trial court will be resentencing your client if your action is successful, and filing a habeas writ petition in superior court may obviate the need to first raise the issue in the Court of Appeal. However, if you believe the appellate panel will be sympathetic, you might want to proceed in that Court– you might even consider requesting a remedy, in an appropriate case, of having the appellate court itself reduce the sentence to the mid-term. If you file in the Superior Court and the court denies the petition, note that a new petition would have to be filed in the Court of Appeal (there is no appeal from a habeas denial). If your client will soon fully serve his or her sentence, you should act directly in the Superior Court to ensure timely relief. Finally, in the end you may not have a choice. There’s a very good chance that if you file a motion to recall the remittitur or a habeas petition in the Court of Appeal, the court may deny it “without prejudice to filing a habeas corpus petition in the superior court.” The Court did this on a number of occasions in 2004 when Blakely issues first arose.

    Upper term cases.

    These materials discuss Cunningham error in the context of upper term sentences. To date, the courts have not extended Blakely/Cunningham error to any other type of case, and the discussion here is focused on upper term cases.


    Triage of Upper-Term Sentence Claims Post-Cunningham

    The holding of Cunningham---that the DSL is unconstitutional---does not mean that every upper-term sentence should, or can be attacked. Below are some factors to consider in evaluating Cunningham claims.

    • Blakely Reversal in First Court of Appeal Opinion. Any case in which the state appellate court originally reversed the sentence under Blakely would be an excellent case reasserting the Blakely-Cunningham claim.

    • Recidivism Complications. Almendarez-Torres should be read narrowly to apply only to the mere fact of a prior conviction (e.g. numerous prior convictions, on parole, served a prior prison term). (See our March 2005 Memorandum on Shepard v. U.S. for a further discussion on the narrow reading of Almendarez-Torres.) Recidivist factors based on facts other than a prior conviction, such as poor performance on probation, should be considered to be outside the Almendarez-Torres exception. With that in mind, (1) the strongest cases will be those, like Cunningham itself, with no Almendarez-Torres factors. (2) Next would be upper-term cases with a mix of Almendarez-Torres factors and factors outside of Almendarez-Torres, where the judge clearly relied primarily on the factors outside of Almendarez-Torres. (3) A closer question would be upper-term cases where there were mixed factors, but the judge relied on factors both inside and outside the exception. (4) An upper-term case resting only or primarily on Almendarez-Torres factors presents a much more difficult case for establishing reversible Cunningham error. It appears unlikely that the U.S. Supreme Court will reconsider the validity of the Almendarez-Torres exception to Apprendi any time soon. (See Rangel-Reyes v. Unites States (2006) 547 U.S. ___, 126 S.Ct. 2873 (Statement of Stevens, J., respecting denial of cert.) ("The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases").)

    • Error Not Harmless. Last term, in Washington v. Recuenco, 548 U.S. ___, 126 S.Ct. 2546 (2006), the Supreme Court held that denial of the right to a jury trial on an aggravating factor (i.e. an element) is not structural. Accordingly, Cunningham error may be subject to review for prejudice under Chapman v. California (1967) 386 U.S. 18 and there will be some cases in which prejudice cannot be shown. For instance, where pure Almendarez-Torres factors (e.g. numerous priors, on parole) were given significant weight by the trial court or appellate court, pursuit of a Cunningham claim may not be warranted. Note that Recuenco addressed only the erroneous denial of jury adjudication, not the burden of proof aspect of Blakely. Recuenco did not necessarily resolve whether determination of aggravating facts under a preponderance, rather than a reasonable doubt standard, could conceivably be deemed a structural defect, by analogy to Sullivan v. Louisiana (1993) 508 U.S. 275.

    • Short Sentence Cases. Further pursuit of Cunningham claims may be warranted even when the client is already on parole. As the California Attorney General wrote in reply to one Blakely claim, "The People agree with [appellant] that his claim is not moot because he [h]as been released on parole. Should he prevail on his claim, he is entitled to reduce his parole period by the amount of time he spent in prison under an erroneous sentence. (In re Welch (1987) 190 Cal.App.3d 407, 410-411; People v. Cooper (1984) 153 Cal.App.3d 480, 482, fn. 1; In re Kemper (1980) 112 Cal.App.3d 434, 437-438; cf. In re Reina (1985) 171 Cal.App.3d 638, 642; In re Ballard (1981) 115 Cal.App.3d 647, 649-650.)" Where, however, the remittitur has already issued, there is no petition for certiorari pending, and the defendant has already been released or it is unlikely that relief could be obtained quickly enough to advance the defendant's release date, the defendant's short sentence may be a reason for counsel not to seek to reopen the case.



    Compensation of Panel Attorneys for Litigation of Cunningham Claims in Post-Remittitur Cases

    At the time of Blakely, and again for Cunningham, the projects checked with the AOC and the AOC requested that attorneys file final claims at the normal time (e.g., when review was denied, or when a Cert. Petition was filed). It was explicitly understood that if further work was needed on the case after that, as has just happened in light of the decision in Cunningham, panel attorneys would bill for subsequent work in a supplemental final claim when the case was over. (If for some reason the attorney did not submit an original final claim, the attorney would submit a final claim once the case was over, including claims for work done following Cunningham.) There is thus no need to request being “re-appointed” by the Court of Appeal, since this work to obtain relief under Cunningham is considered part of your original appointment.

    This covers work reasonably done in the Court of Appeal following Cunningham (e.g. further briefing, filing a motion to recall remittitur, or filing a habeas corpus petition (in appellate courts where no expansion of appointment is required for filing such a petition)). It also covers work reasonably done in the California Supreme Court following the Court of Appeal work (e.g., if after new briefing Court of Appeal finds Cunningham error harmless, and you file a Petition for Review).

    With regard to work in the Superior Court, the regular policy followed by the projects for open cases would apply. FDAP would recommend payment for a reasonable amount of time for drafting and filing, or preparing for the defendant to file in pro per, an appropriate pleading (e.g. habeas writ petition). However, once the pleading is filed, trial counsel would have to do all further work in the trial court, or the appellate attorney would have to be appointed by the trial court. The appellate appointment would not provide payment for time and work done in the Superior Court after the initial writ pleading was filed.



    Presenting Cunningham Claims

    This chart is directed primarily towards presenting Cunningham claims in state court. In any case which is not yet final on direct review, Cunningham relief should be sought in state court. A possibly closer question is presented by final cases where no certiorari petition was filed. On one hand, in such cases---assuming the Blakely-Cunningham claim has been exhausted by presentation to the California Supreme Court---the defendant could simply present that claim in a federal habeas corpus petition and argue that Cunningham shows that the state court decision was an unreasonable application of, or contrary to, Apprendi and Blakely. On the other hand, it may be preferable, in light of the stringent AEDPA standard of review (28 U.S.C. § 2254(d)(1)) and the greater availability of appointment of counsel in state court, for counsel to pursue the issue in California courts by way of a motion to recall the remittitur or a habeas corpus petition. As is generally true, the Court of Appeal appointment does not compensate for work done on federal habeas corpus petitions.


    Procedural Posture of Case   Recommendations for Presentation of Cunningham Claims
    Cases Pending in Court of Appeal    
    Sentence imposed within last 120 day.   Consider drafting a letter to the sentencing judge, suggesting a recall of the sentence under Pen. Code sec. 1170(d). (Once the 120 days lapse, there is no way to start in superior court, other than a state habeas petition.)
    Pre-Appellant's Opening Brief   In opening brief, rely on Cunningham to argue constitutional error in denial of jury trial, requiring a re-sentencing. FDAP will soon post sample arguments regarding Cunningham errors, and, eventually, standards of prejudice, and remedy.
    Post-AOB, Pre-Reply Brief Blakely Claim Raised in AOB Note Cunningham decision in reply brief.
      Blakely Claim Not Raised in AOB File supplemental AOB (and motion for leave to file the same) raising Cunningham claim. (Note: On January 24, 2007, the Third Appellate District issued a standing order regarding supplemental Cunningham briefs. That order should be reviewed before filing in the Third District.)
    Post-Reply Brief   File letter calling Court's attention to issuance of Cunningham decision.
    Post-Opinion (btwn 1st and 15th days, inclusive)   File petition for rehearing.
    Post-Opinion (btwn 16th and 30th days, inclusive)   File petition for rehearing and separate motion for relief from default under rule 8.268(b)(4), noting recent issuance of Cunningham is "good cause" for filing beyond the 15th day.
    Post-Opinion (btwn 31st and 40th days, inclusive)   File petition for review in California Supreme Court. If the Cunningham issue is the only issue, consider requesting a transfer back to the Court of Appeal. (See rules 8.500(b)(4), 8.528(d).)
    Case Pending in Cal. Supreme Court
    Petition for Review Pending   If no Blakely issue was raised in the petition for review, file in the California Supreme Court a "motion to file a supplemental petition for review and supplemental petition for review" (these possibly could be a single document), raising the Cunningham issue. If a Blakely claim was raised in the petition for review, write a letter to the Supreme Court stating that the case is controlled by the recent decision in Cunningham. If the Cunningham issue is the only issue, consider requesting a transfer back to the Court of Appeal. (See rules 8.500(b)(4), 8.528(d).)
    Petition for Review Granted on Other Issues   File in the California Supreme Court a motion to expand the issues on review to include the Cunningham issue and, depending on case-specific considerations, either request briefing in the Supreme Court on the Cunningham issue or request that the Court's ultimate disposition of the case include transferring the case to the Court of Appeal (or superior court) for further proceedings consistent with Cunningham.
    Post-Remittitur Cases
    Petition for Review Denied; 90-Day Cert. Window Still Open  

    Consider filing a motion to recall the remittitur in the Court of Appeal, or a petition for certiorari in the U.S. Supreme Court. (If the certiorari window will run before a motion to recall the remittitur can be decided, you may need to file the pro forma certiorari petition seeking a grant-vacate-remand (GVR) order. )

    The preferred method may vary from division to division, and FDAP may modify its recommendation as the courts respond. Samples will be available shortly.

    Petition for Certiorari Pending in U.S. Supreme Court   The U.S. Supreme Court will shortly issue a GVR order, returning the case to the state Court of Appeal. Then consider filing in the Court of Appeal a supplemental brief (or letter brief), and accompanying application for authorization to do so, pursuant to the authority and spirit of rules 8.200(b) and 8.528(f). Or consider filing a request for the Court of Appeal to set a briefing schedule.
    Petition for Review denied; Remittitur Issued; No Cert. Petition Pending. Case became final after Blakely was decided (June 24, 2004). Review the “Which Court?” and “Act or wait?” discussions above. If you decide to file in Superior Court, a habeas corpus petition should be filed. If you decide to file in the Court of Appeal, we suggest initially filing a motion to recall the remittitur. If it is not granted, the court may deny it without prejudice to filing a habeas writ in Superior Court. Or, the court may simply deny it without comment, and you can follow that by filing a petition for writ of habeas corpus.
      Case became final after Apprendi was decided (June 26, 2000), but before Blakely (June 24, 2004) We suggest filing a state habeas corpus petition. Since such claims may face retroactivity challenges which need to be addressed, see the retroactivity discussion below.
      Case became final before Apprendi, i.e. before June 26, 2000.) No action by panel attorney is recommended.
    Federal Habeas Corpus Petition Is Pending   Consider seeking stay of federal proceedings while pursuing other relief described immediately above under the "Remittitur Issued; No Cert. Petition Pending" options. (If federal petition raises other issues, other strategic and procedural concerns may affect how to proceed.)
    Federal Habeas Corpus Statute of Limitations about to run.   Consider filing a state habeas corpus petition. While a "properly filed" state habeas petition will toll the federal limitations period, it's not clear that a motion to recall the remittitur would do the same. (There may be cases in which it may be preferable to proceed immediately with a federal petition. )



    Note on Questions of Remedy.

    In Cunningham, the U.S. Supreme Court did no more than hold the Determinate Sentencing Law unconstitutional in permitting upper term sentences based on facts not found by the jury or admitted by the defendant. As Justice Ginsburg wrote for the majority, "As to the adjustment of California’s sentencing system in light of our decision, “[t]he ball . . . lies in [California’s] court.” (Slip op. at 21.) At this point, it is premature to predict whether the DSL will be amended by the Legislature (or reformed judicially) to provide for jury trials or to eliminate the requirement that the middle term be imposed in the absence of aggravating factors. Accordingly, until there is further word from the Legislature or the Courts, counsel litigating Cunningham claims should generally request a remand for resentencing. On remand, counsel representing the defendant in the superior court can then consider what position to take regarding the proper remedy depending upon any intervening judicial and legislative responses to Cunningham. If, as in Cunningham itself, the only aggravating circumstances cited by the sentencing court were "Blakely factors"---i.e. facts not admitted by the defendant, not covered by any other jury finding, and not within the prior conviction exception---you may want to ask the appellate court itself to reduce the sentence to the middle term on the theory that is the only constitutional sentence.

    Note that the normal rule shall apply that upon resentencing the defendant cannot be given a greater sentence (unless some aspect of the original sentence was unauthorized). However, also as part of the general rule, the superior court may impose an aggregate sentence as great as the original sentence, as long as no upper term is imposed on any count in violation of the Apprendi-Blakely-Cunningham rule.

    Sample arguments regarding remedy will be posted when available.



    Note on Questions of Retroactivity

    The U.S. Supreme Court has not fully resolved the contours of the retroactive application of its Sixth Amendment jury trial decisions of the last few years---Apprendi-Blakely-Booker-Cunningham. The Court had a chance to partially resolve such questions this term in Burton v. Stewart, no. 05-9222, which presented the questions of whether Blakely was a new rule and, if so, whether it applied retroactively to already-final cases. But the Court dismissed Burton on other grounds and has not yet granted certiorari in another case presenting the issue. Cunningham itself does not appear to announce a new rule and its holding should apply to cases which not yet final when Blakely was decided on June 24, 2004. There is also an argument that there is no retroactivity bar to applying Cunningham to cases that were not yet final when Apprendi was decided on June 26, 2000.

    The following discussion assumes that state courts will rely on Teague v. Lane, 489 U.S. 288 (1989) in determining whether a new rule applies retroactively. We note, however, that the California Supreme Court has not mandated the application of Teague in state court and some pre-Teague cases held that new procedural rules that affect the truth-finding function were fully retroactive.

    Newly declared rules of constitutional law apply to cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In contrast, except for a couple very narrow exceptions, new rules generally don't apply retroactively on collateral review to cases already final when the new rule was announced. Teague v. Lane, 489 U.S. 288 (1989). So, as a practical matter, the important questions in determining retroactivity are (1) when does a case become final? and (2) when was the new rule announced.

    “A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953 (1994). That means cases become final (1) upon the denial of certiorari if a petition for certiorari was filed or (2) 90 days after the petition for review was denied (if no certiorari petition was filed).

    More complicated is the question of "when was the new rule announced?" The Cunningham majority opinion treated its holding as flowing inexorably from the holdings of Apprendi and Blakely, stating flatly that California's DSL violated Apprendi's "bright line rule." Consequently, Cunningham appears to be a straightforward application of those precedents, rather than a "new rule" in its own. Accordingly, if, using the deadlines described in the previous paragraph, the case was not yet final on June 24, 2004, when Blakely was issued, there should be no retroactivity bar against applying Cunningham.

    Less clear is whether Blakely announced a new rule. If it did, relief may be barred for defendants whose convictions were final on direct review before June 24, 2004. But there is an argument that Blakely, like Cunningham, did not announce a new rule and was merely a straightforward application of Apprendi. Support for this position is found in the majority opinions in Blakely and Cunningham, both matter-of-factly applying Apprendi. Further support is found in the dissents in Apprendi & Blakely predicting the downfall of other sentencing schemes. See e.g. Blakely v. Washington (2004) 542 U.S. 296, 324 (O'Connor, J., dissenting). (Further development of this argument can be found in the petitioner's briefs filed in Burton.) Accordingly, it can be argued the rule was new when announced in Apprendi, and Apprendi, Blakely and Cunningham apply to any case which was not yet final on June 26, 2000 (the day the Court decided Apprendi). In such cases, there is no need to show that the rule falls into one of the narrow exceptions (e.g. watershed rules) to the Teague retroactivity bar.

    It should be noted that even if a petitioner may be able to overcome the retroactivity bar, there may be other procedural bars to obtaining relief for cases that have been final for some time, particularly those final before Blakely was decided. In addition, although it remains unresolved, it is very doubtful that any petitioner whose conviction became final before Apprendi would be able to overcome the retroactivity bar. In other contexts, most federal courts have held that Apprendi did establish a new rule which cannot be applied retroactively. Also, the U.S. Supreme Court has held that its application of Apprendi in Ring v. Arizona, 536 U. S. 584 (2002) to Arizona's capital sentencing scheme does not apply retroactively. (Schriro v. Summerlin, 542 U.S. 348 (2004).)

    Sample arguments regarding retroactivity will be posted when available.


    Note on Waiver and Guilty Pleas

    Failure to Object. The failure to make a Blakely-Cunningham objection in the superior court should not preclude appellate review in many cases. This is particularly true when the sentencing took place at a time when such an objection would have been futile, i.e. prior to Blakely (decided June 24, 2004) and between Black (decided June 20, 2005) and Cunningham (decided January 22, 2007). Indeed, most, if not all, courts considering the question prior to the Black decision held that a Blakely claim was cognizable on appeal despite the lack of objection because of the futility of such an objection. (Some examples of such decisions, most surely unpublished or depublished, can be viewed here: As was argued in many of those case, any waiver is excused because any objection would have been futile. (E.g. People v. Hill (1998) 17 Cal.4th 800, 820; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648-649; see also People v. Birks (1998) 19 Cal.4th 108, 116, fn.6 [no waiver where lower court was bound by higher court on issue].)

    Failure to Raise in Direct Appeal. Generally, habeas corpus cannot serve as a substitute for issues that could have been raised on appeal. (See In re Dixon (1953) 41 Cal.2d 756, 759). But an intervening change in law is an exception to that rule and it allows the petition to raise a claim that could have been, but was not raisd on direct appeal. (See In re Harris (1993) 5 Cal.4th 813, 841 (citing In re King (1970) 3 Cal.3d 226, 229, fn. 2).) Accordingly, the failure to raise the claim on direct appeal---particularly in a case briefed and decided before Blakely or between Black and Cunningham---should not preclude raising the claim on habeas review.

    Guilty Pleas Generally. A guilty plea does not necessarily carry with it the waiver of the right to a jury trial on aggravating factors. Indeed, Blakely itself involved a guilty plea case and the Court made clear that unless the defendant actually admitted the particular aggravating factor, the fact of the plea did not necessarily waive the issue. If, however, the defendant, in entering the plea, admits a fact that is later used an aggravating, a Cunningham claim may be barred. Also, in the case of an agreed-to specific sentence, instead of a range or lid or open plea, the defendant will be barred from challenging the sentence on appeal.

    Express Waivers. There is nothing inherently improper about the Blakely waivers some defendants entered into in the post-Blakely era, and such waivers may indeed be enforcable. The waivers, however, should be scrutinzed closely to determine their scope. For instance, a waiver of the right to a jury trial does not carry with it a waiver of the right to proof beyond a reasonable doubt.


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