11/6/06
High court set to hear arguments on Blakely retroactivity
The U.S. Supreme Court will hear oral arguments in Burton v. Stewart No. 05-9222 tomorrow on Tuesday, November 7. The Court will examine whether Blakely applies to cases that were finalized before Blakely was decided in June 2004. In 1994, petitioner Lonnie Burton was convicted of first-degree rape, first-degree robbery, and first-degree burglary. The judge sentenced him to three consecutive prison terms - a total of 46 years, which exceeded the 305-month statutory ceiling. Under Washington state law, such sentences presumptively run concurrently. With concurrent sentencing, Burton would have received roughly 25 years.
In Burton, the Court will address whether Blakely announced a new rule of criminal procedure, and, if so, whether its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt applies retroactively to cases that were finalized before the decision was handed down.
In Teague v. Lane, 489 U.S. 288 (1989), the U.S. Supreme Court previously established that new rules of criminal procedure are not retroactive. The Court carved out two exceptions to this rule, one of which applies "to watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Beard v. Banks, 542 U.S. 406, 411 (2004). The petitioner in Burton argues that Blakely did not announce a new rule because it was simply an application of earlier case law, including Apprendi. If not a new rule, he argues that Tyler v. Cain, 533 U.S. 656 (2001) provides that retroactivity is "necessarily dictated."
However, if the U.S. Supreme Court holds that Blakely did announce a new rule, the petitioner argues that it should be applied retroactively because Blakely's new requirement of proof beyond a reasonable doubt instead of by a preponderance of the evidence fundamentally implicates the accuracy and fairness of the criminal proceeding. Such a "watershed" rule would meet the second exemption for retroactivity in Teague.
FAMM will attend oral arguments on November 7 and report back on this and other upcoming cases here on our Web site and in the FAMMGram.