The ABC's of Preserving Apprendi-Blakely-Cunningham Claims
Following the Cunningham Cert. Grant

February, 2006
(Updated March 2006 and June 2006)

Summary and Overview

This memo deals primarily with steps to take once you have raised a Blakely issue in a petition for review, and the California Supreme Court denies review. The memo addresses both the recent denials of review 'without prejudice' and earlier cases where review was denied without such language. [Please note, if you have an earlier case where review was denied and your 90-day window for filing certiorari is running, please read this entire article as soon as possible since time may be running out.]

The California Supreme Court is currently denying review in such cases with the proviso that review is "denied without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California the effect of Blakely v Washington and United States v Booker on California law." This is potentially good news, in that, among other things, we hope the AOC and the judiciary's AIDOAC committee will do what they did in Black, i.e. decide that if such relief involves action in the Court of Appeal, counsel’s original appointment in the Court of Appeal will be construed to include this later relief; in other words, the clients will not be without counsel for such relief. We will let you know if and when the AIDOAC committee decides any such policy.
Table of Contents

Summary & Overview


Raising Claims in State Ct.

Post Pet. for Rev. Claims


Denials w/o Prej.

Other Resources
Sample Brief Page
Blakely, Booker, and Black. Now What? (June, 2005)
Cunningham Documents

Nonetheless, for the reasons summarized here and spelled out in more detail in the full article, we are recommending that it is in the client’s interest in certain cases for counsel to proceed to file a petition for certiorari in the U.S. Supreme Court. The main reason is that there is uncertainty whether a favorable decision in Cunningham will be construed to be retroactive back to the time Blakely itself was decided (so relief would be granted in all cases which were not yet final at the time Blakely was decided), or whether the courts will construe Cunningham as a new rule (and thus, critically, it would only be applicable to cases which are not yet final at the time Cunningham is decided). If the latter occurs, and if you have not filed a petition for certiorari and your case is final-- i.e., the California Supreme Court has denied review and the 90-day window for cert has passed- your client might not be entitled to relief under Cunningham. Even if Cunningham is decided favorably, it will be impossible to predict until we see the opinion whether it is likely to be deemed a new rule or simply a straightforward application of Blakely. Unfortunately, many federal and state cases have been all over the map in discussing retroactivity rules in various other contexts, and often are conservative about extending case holdings retroactively. Though it seems logical to anticipate Cunningham being seen as simply an application of Blakely, there is certainly no guarantee that will be the case, and your client may miss relief if you have not kept the case in a non-final posture.

We believe there are, however, some limitations on which cases are the most appropriate for cert, and also limitations on the time you should reasonably have to expend in filing for cert.

First, our recommendation assumes that if you petition for cert in an appropriate case, the U.S. Supreme Court will take its customary approach of holding your case and not acting on it (thus keeping it pending and 'non-final'); then, after Cunningham is decided, the Court would issue 'GVR' orders- Granting cert, Vacating the judgment, and Remanding to the Court of Appeal for further proceedings in light of Cunningham. However, we will be monitoring the action of the U.S. Supreme Court. It may be, for example, that in light of the 'denied without prejudice' language in the California Supreme Court's denial of review, the U.S. Supreme Court may, for whatever reason, view this as a reason for not holding the case and instead just denying cert. If the court routinely denies such cert petitions, we would change our recommendation accordingly.

Second, there is no reason for you to re-invent the wheel and draft and file your own unique petition. Instead, you should use the sample petitions FDAP and the other projects are posting, and just insert the original material where noted in the samples. We would not recommend compensation for the extra time expended in an unnecessary attempt to fashion your own separate petition.

Third, we believe you should prioritize in a type of ‘triage’ as to which cases warrant a certiorari petition. (1) The clearest cases would be upper-term cases where the only sentencing factors were non-recidivist ones. [Please note: for discussion of what is a ‘recidivist’ factor, see later in the full article.] (2) Next would be upper-term cases with a mix of recidivist and non-recidivist factors, where the judge clearly relied primarily on the non-recidivist factors. (3) A closer question would be upper-term cases where there were mixed factors, but the judge relied on both the recidivist and non-recidivist ones. (4) An upper-term case resting only or primarily on recidivist factors would present a weaker candidate for a cert petition. (5) Finally, if the case involves consecutive sentences instead of upper-terms, we note that since Blakely was decided no California case we are aware of, published or unpublished, nor as far as we know have other states' courts applied Blakely to consecutive sentences, and Cunningham itself involves upper-term, not consecutive, sentencing.

The Cunningham situation is developing rapidly in terms of what counsel may want to consider doing in is/her Blakely appeal. This memo, and the sample pleadings and prior memos posted on our Website, will be updated as developments warrant. If you want to discuss your case with FDAP, you can call your FDAP buddy or, in this unusual situation, you might wish to contact Jonathan Soglin or Brad O’Connell in our office since they are closely monitoring the Cunningham situation.


On February 21, 2006, the U.S. Supreme Court granted certiorari in Cunningham v. California, no. 05-6551, an upper-term Blakely case presenting the question of whether 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.)

Last June, after Black was decided, FDAP issued an article, Blakely, Booker, and Black. Now What? <> , providing guidance on pursuing Blakely claims in the wake of Black. Much of what is written in that article remains valuable in proceeding on such claims now that cert has been granted. After reading the points below, further guidance can be found in Blakely, Booker, and Black. Now What?


Post-Black Blakely Claims Pending (or to Be Raised) in State Court

Because Black remains binding on California Courts, the earlier instructions for cases pending in the Court of Appeal remain fully applicable. You should add to Court of Appeal pleadings a notation that certiorari has been granted on the issue in Cunningham and that a certiorari petition is still pending in Black. (As of the writing of this memorandum, no such updates have yet been made to the FDAP sample court of appeal pleadings.)


Post Petition-For-Review Procedures for Blakely/Cunningham Claims

For cases in which review has been denied, consideration should be given as to whether to file a certiorari petition. The options available for such cases depend upon whether the 90-day window for a certiorari petition has run. And not all cases warrant a certiorari petition; cases should be triaged using the factors listed in Section III. If you do file a certiorari petition, you should use the sample petition posted here and discussed below.

1. 90-Day Certiorari Window Still Open.

In a case in which review was denied and there is still time to file a certiorari petition, counsel must decide whether the case warrants such a petition. In section III of Blakely, Booker, and Black. Now What? we provided highlights of procedural aspects of filing a certiorari petition. Those procedural considerations must be reviewed in order to properly and timely file a cert. petition. If your 90-day window is running soon, please review those procedural instructions at once.

As an alternative to counsel filing a certiorari petition, counsel could write to the client, advising him/her of the outcome of Black and providing forms for filing either a pro se certiorari petition or a pro se federal habeas corpus petition. The advantage of U.S. Supreme Court direct review over federal habeas review is that the U.S. Supreme Court will decide the issue de novo. In contrast, on federal habeas review, the federal courts accord deference to the state court's determination of the constitutional questions. And the grant of certiorari in Cunningham, with the prospect of the court holding the case pending Cunningham and then issuing a GVR (grant-vacate-remand), makes direct review by certiorari a much more viable and attractive obtion.

Don't reinvent the wheel! In the wake of Black, FDAP posted sample certiorari petitions. A new streamlined "me-too" certiorari petition model has been posted. The new sample replaces the legal argument with a brief statement that cert has been granted in Cunningham, that the same issue was presented and rejected in the petitioner's case, and the case should be held pending Cunningham.

Using the sample petitions:

  • Timing/Extensions of Time/Bar Admission/IFP Applications: these topics should be given immediate attention. Review section III of Blakely, Booker, and Black. Now What? for detailed procedural information on these topics. Addressing them now will ease the burden of filing certiorari petitions and help you avoid last minute scrambling to perfect bar applications and IFP affidavits.

  • Sample Petitions. The model petition, IFP application and proof of service can be found here (

  • Adapt. As with all sample pleadings, they must be adapted to your case. There are optional paragraphs, but even those might need to be specifically tailored to your case.

  • Tables: The model includes a table of contents (page numbers need to be filled in) and cover page. A table of authorities is also required. (Supreme Court Rule 14.1(c) states that tables of contents and authorities are required for documents exceeding 5 pages).

  • Service: Serve original and 10 copies on U.S. Supreme Court; one copy on each party, i.e. AG and any co-appellants. The IFP application (and affidavit) should "precede and be attached to" the cert. petition (i.e. staple the IFP application (affidavit attached) and cert. petition together, with the IFP application on top). Proof of service must accompany, but be separate from, petition. The Supreme Court requires an original only of the proof of service; no copies necessary.) (Sample proof of service is available here.)

  • Appendix/Attachments. In one optional paragraph of the "Opinions Below" section, the model states that, in addition to the most recent opinion of the court of appeal (i.e. the opinion on review), attached are the original court of appeal opinion, the remand order from the California Supreme Court following Black, and the sentencing transcript. Whether such additional attachments are required is controlled by Rule 14.1(i)(i)-(vi), esp. (ii) ("any other relevant opinions, orders, findings of fact, and conclusions of law entered in the case by courts or administrative agencies, and, if reference thereto is necessary to ascertain the grounds of the judgment ..."); whether, if optional, they are helpful and should be attached should be decided on a case-by-case basis. You may also consider including the sentencing transcript as an appendix, if it is readily available.

2. 90-Day Window Is Closed:

Where review was denied more than 90 days ago, it appears that the only avenue left is a federal habeas petition. Should the U.S. Supreme Court find a Blakely violation in Cunningham, state habeas may again be available, but that is not a reason to let the federal habeas statute of limitations run.

Note: There is no compensation under a state court of appeal appointment for preparation of a federal habeas corpus petition. Counsel can either prepare the petition on a pro bono basis or send the appropriate forms, including an IFP application, to the appellant. Such forms can be found on the federal court Web sites. Counsel could also instruct the petitioner to attach a copy of the court of appeal opinion and the relevant excerpts from model certiorari petitions showing why Black was wrongly decided. Unless there is tolling of the federal habeas statute of limitations, in the normal case where no certiorari petition is filed, the federal habeas petition must be filed within one year and 90 days of the denial of review by the California Supreme Court.


Triage of Cases Post-Cunningham

In section IV of Blakely, Booker, and Black. Now What? we provided a discussion of factors to consider in a triage of cases for certiorari petitions. Some of those considerations still hold true, but we now provide a new triage in the wake of the certiorari grant in Cunningham.

Characteristics of ideal Blakely/Black cases to bring to the supreme court:

  • Upper Term Issues Only. Ideal cases would be those presenting the upper term issue without waiver problems. Because the consecutive sentence issue is much less compelling and because no court has found Blakely to apply to California consecutive sentencing, we are not recommending including the consecutive sentence issue in certiorari petitions.

  • Blakely Reversal in First Court of Appeal Opinion. Any case in which the state court of appeal originally reversed the sentence under Blakely would be an excellent case for a certiorari petition.

  • Recidivism Complications. Almendarez-Torres should be read narrowly to only apply to the mere fact of a prior conviction (e.g. numerous prior convictions, on parole, served a prior prison term). 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 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 would not be a candidate for a certiorari petition. (See Rangel-Reyes v. Unites States (no. 05-10706, filed June 12, 2006) 547 U.S. ___, ___ S.Ct. ____ (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. It remains unsettled what standard of prejudice applies to Blakely error, but the Supreme Court might provide some guidance later this term when it decides Washington v. Recuenco, no. 05-83. Where pure Almendarez-Torres factors (e.g. numerous priors, on parole) were given significant weight by the trial court or court of appeal, a certiorari petition may not be warranted.

  • Short Sentence Cases. Now that the issue is squarely before the Supreme Court in Cunningham, certiorari petitions may be warranted even when the client is already on parole, or will be by the time Cunningham is decided. 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.)"


Effect of Review Denials "Without Prejudice"

The California Supreme Court has begun issuing orders stating: "Petition for review denied without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law." Because the practical and legal implications of such orders are uncertain, they do not obviate the need to file certiorari petitions and do not give cause to let the federal habeas statute of limitations run. Accordingly, upon receipt of such a denied-without-prejudice order, the case should be treated like any other Blakely case and consideration should be given to filing a certiorari petition based upon the triage of factors described above. That approach is the safest and in the best interest of the client. FDAP will monitor the treatment of such cases by the Supreme Court of the United States. If it appears that the high court uniformly denies certiorari in such cases (perhaps viewing the cases as non-final in light of the "without prejudice" language), FDAP will so alert the panel.

Of course, as with all such "me-too" petitions, don't reinvent the wheel; panel attorneys are expected to make use of the sample petition.