Schardt: Misreading Of Schriro Undermines Reasonable Doubt Retroactivity

The Ninth Circuit today rejected a habeas petitioner's request that the court retroactively apply the Supreme Court's Blakely decision. The defendant in Blakely received an upward departure from the controlling state guideline range based on facts found by the sentencing judge, not a jury, by a preponderance of the evidence. The Supreme Court reversed based on Apprendi, holding that facts necessary for an increase in the state sentencing guidelines must be either admitted or proved to a jury beyond a reasonable doubt. The Supreme Court applied this same principle to capital sentencing in Ring v. Arizona, but found that Ring did not apply retroactively in Schriro v. Summerlin because the application of a reasonable doubt standard -- even though by a judge -- provided adequate protection for the reliability of the proceedings. The Supreme Court has not spoken on the retroactivity of the reasonable doubt component of Blakely.

The retroactivity question is whether a new rule of constitutional criminal procedure applies in cases that are final (that is, the defendant has completed direct review). When raised on collateral review by a petition for habeas corpus relief, the basic test from Teague asks whether the right at issue is fundamental and whether the failure to apply the rule affects the accuracy and, hence, the reliability of the proceedings. As blogged here, Judge Panner observed in an Oregon district court case (Siegelbaum, 359 F.Supp.2d 1104) that, in Schriro, the Supreme Court recognized that the reasonable doubt standard was a necessary protection where the government sought to impose criminal sanctions based on controverted facts. Despite the clarity of this analysis, the circuit courts have been uniformly -- with little analysis -- misreading Schriro as establishing that Blakely and Booker are not retroactive. We need to continue to consistently and clearly point out that Schriro involved the identity of the fact-finder, while leaving unresolved the key issue of the standard by which facts are found.

In Schardt (opinion available here), the Ninth Circuit began by finding that the enhanced sentence unquestionably would result in reversal under Blakely if the case were on direct appeal. The court rejected the NACDL amicus position, co-authored by Jeffrey Fisher (who represented Blakely in the Supreme Court) and David Zuckerman, that Blakely created a new substantive, rather than procedural, rule. Relying on Beard and cases relating to the federal sentencing guidelines, the court also rejected the position that, because Blakely simply applied Apprendi, Blakely did not establish a new rule. Then, with no mention of Schriro's reasoning on the importance of the reasonable doubt standard, the court adopted wholesale the Tenth Circuit's approach in Price that simply followed pre-Schriro authority to say that the rule barring increased sentencing maximums based on only a preponderance of the evidence was not a watershed rule of criminal procedure.

But Schriro contradicts the pre-Schriro authority cited by the court. The key rationale for Schriro is the critical importance of the reasonable doubt standard, which was applied in Schriro but was not applied in Schardt. How much more emphatic does the Supreme Court need to be regarding the importance of the reasonable doubt standard? In Schriro, both the majority and dissent agreed that the reasonable doubt principles underlying Apprendi were "fundamental" or "implicit in the context of ordered liberty." And twice -- twice! -- the Supreme Court has held that extensions of reasonable doubt apply retroactively because the accuracy of criminal findings is of primary importance: the reasonable doubt requirement for judge-made findings in juvenile cases in Winship had to be applied retroactively in Ivan V.; the protection against dilution of the reasonable doubt standard by presumption in Mullaney had to be applied retroactively in Hankerson for the same reason. Under the reasoning of Tyler v. Cain (a combination of cases can establish retroativity), the cumulative effect of these decisions -- especially given Apprendi's reliance on Winship and Mullaney -- means that the Supreme Court has already held that new rules of criminal procedure expanding the reasonable doubt standard should be applied retroactively.

The Schardt decision is ripe for en banc review. The history and policies underlying retroactivity doctrine strongly support retroactive application where accurate factfinding is at issue, as outlined in the Harvard Law Review note entitled Rethinking Retroactivity, 118 Harv.L.R. 1642 (2005). The scope of potential relief might be a factor in the courts' reluctance to find retroactivity. But for the discrete group of state petitioners who were on direct appeal when Apprendi was decided, the reasonable doubt standard is arguably not even a new rule. For these petitioners, the broad retroactivity questions need not even be addressed because Blakely was dictated by Apprendi, as reflected in the language of both Blakely and Booker, and in the unanimous Kansas Supreme Court decision invalidating state guidelines based on Apprendi. And if the retroactivity issue needs to be reached, the reasoning underlying Schriro should at least be addressed.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon