Siegelbaum: first step to Blakely/Booker retroactivity
Judge Panner’s carefully reasoned opinion on retroactivity leaves some questions unanswered but starts the analysis with two important premises: Sanchez-Cervantes is no longer good law; and Schriro establishes the importance of reliability based on the reasonable doubt standard.
Oregon's Judge Panner has issued an important opinion on Booker/Blakely retroactivity in Siegelbaum, posted by Professor Berman here. The pro se petitioner filed a § 2255 motion for Blakely relief. Mr. Siegelbaum pleaded guilty to fraud charges pursuant to a plea agreement that included, the judge found, the upward adjustments for loss and role in the offense now challenged under Blakely. The parties also agreed to the 70 month sentence that Judge Panner eventually imposed.
Judge Panner’s step-by-step analysis provides a great starting point for future arguments on retroactivity. A critical step is rejection of the government’s argument that Schriro and Sanchez-Cervantes foreclose retroactive application of Blakely and Booker.
First, Judge Panner recognized the critical distinction between Schriro’s ruling that a court finding, beyond a reasonable doubt, adequately limited the risk of injustice and "the second component to Blakely/Booker that Schriro did not address, namely, that facts used to enhance a sentence, if not admitted, must be proven beyond a reasonable doubt rather than by a preponderance of the evidence." Judge Panner then cited to Winship and the cases giving retroactive effect to Winship’s protection of the reasonable doubt standard, concluding that "I cannot exclude the possibility that the Court might apply Blakely/Booker retroactively in some situations."
Second, Judge Panner recognized that Sanchez-Cervantes, the Ninth Circuit’s bar to retroactive application of Apprendi, is no longer controlling. "The panel relied upon a narrow interpretation of Apprendi that has now been repudiated in Blakely and Booker."
With no controlling precedent, the court found it unnecessary to reach a decision given the absence of contested facts. The key issue would be the use of the preponderance standard, rather than reasonable doubt, to decide contested enhancements: "Even assuming (but not deciding) that the rule announced in Blakely/Booker applies retroactively, relief would be limited to persons presently serving a sentence that was enhanced on the basis of contested facts that were not found to be true, beyond a reasonable doubt, nor admitted by the defendant."
Building on Siegelbaum, the rejection of Sanchez-Cervantes should require a second look at what appears to be a seamless syllogism requiring retroactivity -- an analysis that Judge Panner did not need to reach. In Tyler v. Cain, the Court found that a combination of decisions can result in a Supreme Court determination that the new rule applies retroactively. Winship and Mullaney were held to be retroactive in Ivan V. and Hankerson. Apprendi/Blakely/Booker all are based in Winship and Mullaney’s protection against less reliable fact finding when liberty is at issue. Schriro rejected the Sanchez-Cervantes suggestion that fundamental interests were not at issue. Therefore, the Supreme Court has already made the determinations that necessarily result in retroactivity.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.
Oregon's Judge Panner has issued an important opinion on Booker/Blakely retroactivity in Siegelbaum, posted by Professor Berman here. The pro se petitioner filed a § 2255 motion for Blakely relief. Mr. Siegelbaum pleaded guilty to fraud charges pursuant to a plea agreement that included, the judge found, the upward adjustments for loss and role in the offense now challenged under Blakely. The parties also agreed to the 70 month sentence that Judge Panner eventually imposed.
Judge Panner’s step-by-step analysis provides a great starting point for future arguments on retroactivity. A critical step is rejection of the government’s argument that Schriro and Sanchez-Cervantes foreclose retroactive application of Blakely and Booker.
First, Judge Panner recognized the critical distinction between Schriro’s ruling that a court finding, beyond a reasonable doubt, adequately limited the risk of injustice and "the second component to Blakely/Booker that Schriro did not address, namely, that facts used to enhance a sentence, if not admitted, must be proven beyond a reasonable doubt rather than by a preponderance of the evidence." Judge Panner then cited to Winship and the cases giving retroactive effect to Winship’s protection of the reasonable doubt standard, concluding that "I cannot exclude the possibility that the Court might apply Blakely/Booker retroactively in some situations."
Second, Judge Panner recognized that Sanchez-Cervantes, the Ninth Circuit’s bar to retroactive application of Apprendi, is no longer controlling. "The panel relied upon a narrow interpretation of Apprendi that has now been repudiated in Blakely and Booker."
With no controlling precedent, the court found it unnecessary to reach a decision given the absence of contested facts. The key issue would be the use of the preponderance standard, rather than reasonable doubt, to decide contested enhancements: "Even assuming (but not deciding) that the rule announced in Blakely/Booker applies retroactively, relief would be limited to persons presently serving a sentence that was enhanced on the basis of contested facts that were not found to be true, beyond a reasonable doubt, nor admitted by the defendant."
Building on Siegelbaum, the rejection of Sanchez-Cervantes should require a second look at what appears to be a seamless syllogism requiring retroactivity -- an analysis that Judge Panner did not need to reach. In Tyler v. Cain, the Court found that a combination of decisions can result in a Supreme Court determination that the new rule applies retroactively. Winship and Mullaney were held to be retroactive in Ivan V. and Hankerson. Apprendi/Blakely/Booker all are based in Winship and Mullaney’s protection against less reliable fact finding when liberty is at issue. Schriro rejected the Sanchez-Cervantes suggestion that fundamental interests were not at issue. Therefore, the Supreme Court has already made the determinations that necessarily result in retroactivity.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.
posted by Steve Sady at 1/28/2005 10:25:00 AM
1 Comments:
Judge Panner is alone in the nation in even suggesting that Blakely/Booker apply retroactively to cases on collateral review. Every other judge in every other court in the nation which has considered this issue has squarely held that Blakely and Booker do not apply retroactively to cases on collateral review (including several other district judges in Oregon). Moreover, Judge Panner simply assumed, without deciding, that they applied retroactively, then proceeded to deny the defendant's claims on the merits. Judge Panner's unfounded assumption is nothing but dictum, and anomalous dictum at that. It should not be relied upon as precedent for retroactivity.
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