Schardt v. Payne
No. 02-36164 (7-8-05). "Retro" is in these days, but when it comes to Blakely, retroactivity is out. Here, the 9th addresses whether a state prisoner can collaterally challenge the validity of his sentence on the ground that the court, in sentencing, used facts that had not been found by a jury beyond a reasonable doubt as required by Blakely. The 9th, as all circuits, shudders when it thinks of the implications. It is not surprising therefore that the 9th holds that Blakely is not retroactive. The 9th therefore joins the 10th Cir. in so holding, and aligns with those circuits that have held that Booker is not retroactive on collateral appeal. In reaching the conclusion, the Teague test is used, which requires the court to: (1) determine when the conviction became final (here after Apprendi but before Blakely); (2) whether a new rule was announced (the 9th held that Blakely announced a new rule and wasn't an extension of Apprendi -- no court had applied Apprendi to anything less than the stat max; (3) whether this was a procedural or substantive rule (the 9th held that rules that allocate decision-making authority are by nature procedural, as is the case here); and (4) is Blakely a watershed procedural rule (the 9th adopts the 10th Cir.'s reasoning that Blakely concerns how a court imposes a sentence rather than whether a defendant is in fact guilty, and this is not watershed in nature as it does not undermine the fundamental fairness of the proceeding).The 9th also turns down petitioner;s efforts to say that the federal law was clear and should trump state.