Booker: Ex Post Facto Argument with Newman
As litigation heats up after Booker, we've moved from the theoretical to the nitty-gritty of actual practice. Below is an excerpt of an excellent brief by Senior Deputy FPD Carl Gunn from the CD Cal and Elizabeth Barros from the SD Cal. In it, Carl and Elizabeth distinguish an odd and unconvincing Ninth Circuit hurdle to the ex post facto argument on Booker: United States v. Newman, 203 F.3d 700 (9th Cir.), cert. denied, 531 U.S. 866 (2000). (Newman is available here).
The Ex Post Facto Clause absolutely bars the retroactive application of a criminal law to any criminal offender whom the law disadvantages. Weaver v. Graham, 450 U.S. 24, 29 (1981). It is one of the most fundamental principles in our Constitution. See U.S. Const., art. I, § 9, cl. 3; U.S. Const., art. I, § 10, cl. 1. See generally Weaver, 450 U.S. at 28-29 & n.8 ("[s]o much importance did the [c]onvention attach to [the ex post facto prohibition], that it is found twice in the Constitution" (quoting Kring v. Missouri, 107 U.S. 221, 227 (1883))).
The Ex Post Facto Clause applies by its terms only to changes in the law resulting from legislative or executive action, however. Protection against retroactive application of changes in judicial interpretation of criminal statutes is provided by the Due Process Clause. As the Supreme Court explained in Bouie v. City of Columbia, 378 U.S. 347 (1964):
[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime or makes it greater than it was, when committed." If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. The fundamental principle that "the required criminal law must have existed when the conduct in issue occurred" must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," it must not be given retroactive effect.
Id. at 353-54 (citations and footnote omitted) (emphasis in original). See also Marks v. United States, 430 U.S. 188, 192 (1977) (applying Bouie to Due Process Clause of Fifth Amendment).
The Ninth Circuit did suggest in United States v. Newman, 203 F.3d 700 (9th Cir.), cert. denied, 531 U.S. 866 (2000), that Bouie is implicated only in cases of after-the-fact expansion of criminal liability, not after-the-fact increases in the degree of punishment. See Newman, 203 F.3d at 702. But Newman is not controlling and should not be followed here for at least three reasons.
First, the suggestion in Newman is dictum because the Court gave an alternative ground for its holding. Specifically, it pointed out that "even if Bouie applies here, no due process violation occurred because the decision in [Reno v. Koray. 515 U.S. 50 (1995)] was reasonably foreseeable given the circuit split on the meaning of section 3585(b)." Newman, 203 F. 3d at 703. This is consistent with the caveat that Bouie does not bar retroactive application of a judicial decision which is foreseeable. See United States v. Qualls, 172 F.3d 1136, 1138 n.1 (9th Cir. 1999). One of the most obvious examples of a situation in which a judicial decision is foreseeable is when there is a split in the circuits. See id.
Second, Newman and the cases on which it relied on -- United States v. Ruiz, 935 F.2d 1033 (9th Cir. 1991) and United States v. Ricardo, 78 F.3d 1411 (9th Cir. 1996) -- are distinguishable. Ruiz is distinguishable because the defendant there was complaining that he relied on the law in effect at the time he entered his plea, see Ruiz, 935 F.2d at 1035, and he had been given an opportunity to withdraw his plea when he raised his complaint, see id. at 1038 (Reinhardt, J., concurring in judgment); see also id. at 1035 (majority opinion).5 Ricardo is distinguishable because the decision being applied retroactively there -- Custis v. United States, 511 U.S. 485 (1994), which held that a defendant cannot challenge the constitutional validity of a prior conviction directly in a federal sentencing proceeding, see id. at 497 -- dealt not with whether a defendant could challenge prior convictions, but where he must challenge it, i.e., in the original court of conviction rather than the federal sentencing court. See United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) ("a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction"); see also United States v. Guthrie, 931 F.2d 564, 571-72 (9th Cir. 1991). Finally, Newman itself is distinguishable because it dealt with a statute governing credit against the sentence, not the sentence itself. See Newman, 203 F.3d at 701.
Third, virtually every other circuit to consider the question has rejected the distinction suggested in Newman and held that Bouie applies to sentencing statutes just as it does to substantive statutes. See Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998), cert. denied, 525 U.S. 1075 (1999); Davis v. Nebraska, 958 F.2d 831, 833-34 (8 th Cir. 1992); Helton v. Fauver, 930 F.2d 1040, 1045 (3rd Cir. 1991); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989), cert. denied, 494 U.S. 1058 (1990); Rubino v. Lynaugh, 845 F.2d 1266, 1271-73 (5th Cir. 1988); see also Metheny v. Hammonds, 216 F.3d 1307, 1312 n.13 (11th Cir. 2000) (assuming without deciding that Bouie applies to after-the-fact increases in punishment), cert. denied, 531 U.S. 1196 (2001). Newman should not be read overly strongly as a controlling holding when so reading it would create a split in the circuits. Cf. Circuit Rule 35-1 ("[w]hen the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for suggesting a rehearing en banc").
Indeed, the only Ninth Circuit case to truly apply Newman -- Holgerson v. Knowles, 309 F.3d 1200 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) -- suggested Newman simply raises doubt about the application of Bouie to judicial decisions about sentencing statutes. The issue in Holgerson was whether a California state court decision that the defendant claimed expanded the categories of convictions that could be considered under the states’s "three strikes" law could be applied retroactively. See Holgerson, 309 F.3d at 1201-02. The Ninth Circuit cited both Bouie and Newman, but limited its consideration of Newman as follows:
We need not decide whether Bouie applies to the California Supreme Court’s decision . . . . We rely on Newman merely for our conclusion that the argument Holgerson posits (that due process bars judicial after-the-fact increases in punishment as well as after-the-fact increases in the scope of criminal liability) has not been clearly established by the Supreme Court.
Holgerson, 309 F.3d at 1203.6
Given the grounding of Bouie in an analogy to the Ex Post Facto Clause and the limitations of Newman, the better view -- and the view which should be taken here -- is that taken by the other circuits which have enunciated square holdings on the issue. Bouie applies to retroactive application of judicial decisions increasing punishment just like the Ex Post Facto Clause applies to retroactive application of statutes increasing punishment, see Weaver v. Graham, 450 U.S. at 30; see also Bouie, 378 U.S. at 353 (ex post facto law defined to include law "that aggravates a crime, or makes it greater than it was, when committed" (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648)).
The test that Bouie established for when retroactivity of a judicial decision is precluded is satisfied here, moreover. The basic test is one of foreseeability. See Marks v. United States, 430 U.S. at 192; United States v. Qualls, 172 F.3d at 1138 n.1. And the decision in Booker cannot be fairly characterized as foreseeable at the time Mr. Padilla committed his offense, which was January 30, 2001. While Apprendi v. New Jersey, 530 U.S. 466 (2000) had been decided, Blakely v. Washington, 124 S. Ct. 2531 (2004) had not been, and the circuits were unanimous in holding that Apprendi did not apply to the Guidelines.7 Mr. Padilla had no reason to believe that the Guidelines would be made advisory, and so the Supreme Court’s decision in Booker cannot used to justify a higher sentence.
Carl Gunn, Senior Deputy Federal Public Defender, CD Cal and Elizabeth Barros, AFPD SD Cal
--oOo--
The Ex Post Facto Clause absolutely bars the retroactive application of a criminal law to any criminal offender whom the law disadvantages. Weaver v. Graham, 450 U.S. 24, 29 (1981). It is one of the most fundamental principles in our Constitution. See U.S. Const., art. I, § 9, cl. 3; U.S. Const., art. I, § 10, cl. 1. See generally Weaver, 450 U.S. at 28-29 & n.8 ("[s]o much importance did the [c]onvention attach to [the ex post facto prohibition], that it is found twice in the Constitution" (quoting Kring v. Missouri, 107 U.S. 221, 227 (1883))).
The Ex Post Facto Clause applies by its terms only to changes in the law resulting from legislative or executive action, however. Protection against retroactive application of changes in judicial interpretation of criminal statutes is provided by the Due Process Clause. As the Supreme Court explained in Bouie v. City of Columbia, 378 U.S. 347 (1964):
[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one "that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action," or "that aggravates a crime or makes it greater than it was, when committed." If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. The fundamental principle that "the required criminal law must have existed when the conduct in issue occurred" must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," it must not be given retroactive effect.
Id. at 353-54 (citations and footnote omitted) (emphasis in original). See also Marks v. United States, 430 U.S. 188, 192 (1977) (applying Bouie to Due Process Clause of Fifth Amendment).
The Ninth Circuit did suggest in United States v. Newman, 203 F.3d 700 (9th Cir.), cert. denied, 531 U.S. 866 (2000), that Bouie is implicated only in cases of after-the-fact expansion of criminal liability, not after-the-fact increases in the degree of punishment. See Newman, 203 F.3d at 702. But Newman is not controlling and should not be followed here for at least three reasons.
First, the suggestion in Newman is dictum because the Court gave an alternative ground for its holding. Specifically, it pointed out that "even if Bouie applies here, no due process violation occurred because the decision in [Reno v. Koray. 515 U.S. 50 (1995)] was reasonably foreseeable given the circuit split on the meaning of section 3585(b)." Newman, 203 F. 3d at 703. This is consistent with the caveat that Bouie does not bar retroactive application of a judicial decision which is foreseeable. See United States v. Qualls, 172 F.3d 1136, 1138 n.1 (9th Cir. 1999). One of the most obvious examples of a situation in which a judicial decision is foreseeable is when there is a split in the circuits. See id.
Second, Newman and the cases on which it relied on -- United States v. Ruiz, 935 F.2d 1033 (9th Cir. 1991) and United States v. Ricardo, 78 F.3d 1411 (9th Cir. 1996) -- are distinguishable. Ruiz is distinguishable because the defendant there was complaining that he relied on the law in effect at the time he entered his plea, see Ruiz, 935 F.2d at 1035, and he had been given an opportunity to withdraw his plea when he raised his complaint, see id. at 1038 (Reinhardt, J., concurring in judgment); see also id. at 1035 (majority opinion).5 Ricardo is distinguishable because the decision being applied retroactively there -- Custis v. United States, 511 U.S. 485 (1994), which held that a defendant cannot challenge the constitutional validity of a prior conviction directly in a federal sentencing proceeding, see id. at 497 -- dealt not with whether a defendant could challenge prior convictions, but where he must challenge it, i.e., in the original court of conviction rather than the federal sentencing court. See United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) ("a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction"); see also United States v. Guthrie, 931 F.2d 564, 571-72 (9th Cir. 1991). Finally, Newman itself is distinguishable because it dealt with a statute governing credit against the sentence, not the sentence itself. See Newman, 203 F.3d at 701.
Third, virtually every other circuit to consider the question has rejected the distinction suggested in Newman and held that Bouie applies to sentencing statutes just as it does to substantive statutes. See Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998), cert. denied, 525 U.S. 1075 (1999); Davis v. Nebraska, 958 F.2d 831, 833-34 (8 th Cir. 1992); Helton v. Fauver, 930 F.2d 1040, 1045 (3rd Cir. 1991); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989), cert. denied, 494 U.S. 1058 (1990); Rubino v. Lynaugh, 845 F.2d 1266, 1271-73 (5th Cir. 1988); see also Metheny v. Hammonds, 216 F.3d 1307, 1312 n.13 (11th Cir. 2000) (assuming without deciding that Bouie applies to after-the-fact increases in punishment), cert. denied, 531 U.S. 1196 (2001). Newman should not be read overly strongly as a controlling holding when so reading it would create a split in the circuits. Cf. Circuit Rule 35-1 ("[w]hen the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for suggesting a rehearing en banc").
Indeed, the only Ninth Circuit case to truly apply Newman -- Holgerson v. Knowles, 309 F.3d 1200 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) -- suggested Newman simply raises doubt about the application of Bouie to judicial decisions about sentencing statutes. The issue in Holgerson was whether a California state court decision that the defendant claimed expanded the categories of convictions that could be considered under the states’s "three strikes" law could be applied retroactively. See Holgerson, 309 F.3d at 1201-02. The Ninth Circuit cited both Bouie and Newman, but limited its consideration of Newman as follows:
We need not decide whether Bouie applies to the California Supreme Court’s decision . . . . We rely on Newman merely for our conclusion that the argument Holgerson posits (that due process bars judicial after-the-fact increases in punishment as well as after-the-fact increases in the scope of criminal liability) has not been clearly established by the Supreme Court.
Holgerson, 309 F.3d at 1203.6
Given the grounding of Bouie in an analogy to the Ex Post Facto Clause and the limitations of Newman, the better view -- and the view which should be taken here -- is that taken by the other circuits which have enunciated square holdings on the issue. Bouie applies to retroactive application of judicial decisions increasing punishment just like the Ex Post Facto Clause applies to retroactive application of statutes increasing punishment, see Weaver v. Graham, 450 U.S. at 30; see also Bouie, 378 U.S. at 353 (ex post facto law defined to include law "that aggravates a crime, or makes it greater than it was, when committed" (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648)).
The test that Bouie established for when retroactivity of a judicial decision is precluded is satisfied here, moreover. The basic test is one of foreseeability. See Marks v. United States, 430 U.S. at 192; United States v. Qualls, 172 F.3d at 1138 n.1. And the decision in Booker cannot be fairly characterized as foreseeable at the time Mr. Padilla committed his offense, which was January 30, 2001. While Apprendi v. New Jersey, 530 U.S. 466 (2000) had been decided, Blakely v. Washington, 124 S. Ct. 2531 (2004) had not been, and the circuits were unanimous in holding that Apprendi did not apply to the Guidelines.7 Mr. Padilla had no reason to believe that the Guidelines would be made advisory, and so the Supreme Court’s decision in Booker cannot used to justify a higher sentence.
Carl Gunn, Senior Deputy Federal Public Defender, CD Cal and Elizabeth Barros, AFPD SD Cal
posted by Steve Kalar at 2/02/2005 09:12:00 AM
3 Comments:
How do we get past US v. Ruiz, Boise, and Kincaid? All 9th Cir cases holding that retroactive application of guidelines or case law interpreting sentencing procedure does not offend Due Process unless defedant can demonstrate "substantially inequitable result." Hint - in those cases review was pending in the courts so the defedants knew that the case law they were relying on could change and therefore no substantially inequitable result ...
Any thougts appreciated...
I'm an undergrad student right now so forgive me if this is a stupid question.
I happened across this blog while in search of information about CA's three strikes law as an ex post facto violation. I looked up the Holgerson case after reading this, and see that it deals with ex post facto regarding a judicial decision that broadened the three strikes law - but are there any cases that have challenged the retroactive application of three strikes in general (i.e the use of convictions that pre-date the law to count as prior strikes)?
Seems like it would be a strong argument, so I'm just curious if it's been adjudicated, and what the result was if it has.
If you have an answer u can email me at jraetay@gmail.com. thanks
How can you get past the "... absolutely bars the retroactive APPLICATION of a criminal law to any criminal offender whom the law DISADVANTAGES.
That sums it up right there. The retroactive three-strikes law is definitely unconstitutional.
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