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News from the Director

Blakely at (almost) One Month: Petitions for Rehearing Granted/Model State Habeas Petition Available/Federal Sentencing Guidelines on Fast Track to SCOTUS/Blakely Resources Abound.
July 22, 2004

1. Petitions for Rehearing. This week rehearing has been granted in three separate First District cases: People v. Wilson, A102205(Div. 1); People v. Soria, A101084 (Div. 2); People v. Rickman, A103374 (Div. 2). All three rehearing orders ask for supplemental briefing. These developments make clear that First District panels are willing to entertain Blakely claims on the merits, even at this late stage of the appeal. Consequently, if your case appears to present Blakely issues & you are still within the rehearing window, you should definitely file a rehearing petition (even if the prior briefing didn't raise any issues along these lines). Obviously, it's also appropriate to raise the issue (via a request for supplemental briefing) in any pre-opinion cases, including cases that have already been argued and submitted. (Rehearing has also been granted in cases in other districts, such as People v. Jordan, no. D042720 (4th Dist., Div. 1).

On a more substantive note, we've noticed that Div. 2's supplemental briefing orders (in both these cases & others) specifically ask counsel to address both the merits of Blakely's application to California's determinate sentencing law and whether "Blakely must or should be applied to cases in which sentencing occurred before the issuance of that decision." Although there are very substantial questions about Blakely's application to cases which were already final as of the date of Blakely, there should not be any true dispute about Blakely's application to pending appeals such as these. As acknowledged in another Apprendi-related decision the same day: "When a decision of this Court results in a 'new rule,' that rule applies to all criminal cases still pending on direct review." (Schriro v. Summerlin (2004) __ U.S. __, 124 S.Ct. 2519, 2522 (emphasis added), citing Griffith v. Kentucky (1987) 479 U.S. 314, 328.) (Schiro held that Ring v. Arizona (jury trial on capital aggravating factors) was not retroactively applicable to cases which had already become final on direct review.)

Several recent California opinions have recently invoked that same rule in applying Crawford v. Washington (which substantially altered the confrontation clause analysis of hearsay statements) to pending appeals. E.g., "Crawford indubitably applies retroactively in this case. [Quotation of the passage above from Schiro v. Summerlin.] This is true regardless of whether the new rule is substantive or procedural (ibid.) and regardless of whether it 'constitutes a "clear break" with the past.' [Citing Griffith v. Kentucky.]" (People v. Cage (July 15, 2004; E034242) __ Cal.App.4th __, slip opn., p. 19; accord People v. Pirwani (2004) 119 Cal.App.4th 770, __ fn. 5 [also citing Griffith]; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400 [same]; People v. Price (June 30, 2004; A101668) __ Cal.App.4th __, 15 Cal.Rptr.3d 229, 238 ["As a matter of normal judicial operation, even a nonretroactive decision governs cases that are not yet final when the decision is announced"].

2. Model Habeas Petition. Yesterday, we posted a model/generic habeas corpus petition. But NOTE: this petition is just for cases where: (1) a petition for review was filed and denied (it doesn't have to be a Blakely petition, just any petition that you filed in the case), and when Blakely was decided (June 24) your case was still within 90-days of the time the petition was denied. This means your case was within the "cert window," and is considered to have been pending on direct appeal at the time Blakely was decided.; or (2) no petition for review was filed, but when Blakely was decided (June 24) your case did not have a petition for review filed but your case was within 40 days of the opinion (i.e., it was still within time to file a petition for review).

In either of these two situations, your case was pending on direct appeal and IS covered by Blakely--there is NO issue as to retroactivity, and thus this generic habeas petition doesn't have to deal with the bigger issue of Blakely's applicability to cases that were over (i.e., beyond the 90-day cert window) when Blakely was decided. We hope in the near future to post a generic habeas your clients can use in those situations. But for now, we're just posted a habeas petition you can use if your case was still within the 90-day cert window if a petition for review had been filed (or within the original 40-day petition-for-review window if no petition was filed).

3. Federal Sentencing Guidelines. The federal sentencing guidelines are on a fast track to the supreme court. The solicitor general has filed certiorari petitions in two cases: U.S. v. Booker, no. 04-104 and U.S. v. Fanfan, no. 04-105. The Supreme Court has directed responses to be filed by July 28. Copies of the petitions can be found on SCOTUSblog or the Sentencing Law and Policy blog. And yesterday, July 21, the Ninth Circuit held that Blakely applies to the determination of a base offense range (§ 2D1.1(c) (drug quantity table)) and determination of a specific offense characteristic (§ 2D1.1(b)(1) (2-level increase for dangerous weapon use)). U.S. v. Ameline, no. 02-30326 (9th Cir., July 21, 2004) The Ninth Circuit also held that the Guidelines were severable. Judge Gould dissented.

4. Blakely Resources. Numerous helpful web-based Blakely resources are now available. Sentencing Law and Policy is an excellent source on all things Blakely, particularly for developments in the federal courts on the federal Sentencing Guidelines. SCOTUSblog is the place to turn to for developments in the U.S. Supreme Court, including the impending petition for rehearing in Blakely and the pending cert. petitions in Booker and Fanfan. As for developments in California, in addition to the FDAP Blakely page, ADI has launched its Blakely resource page. This is by no means an exhaustive list. Links to other resources are listed on the FDAP and ADI Blakely pages, and even more can be found with internet searches.

 

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