Monday, January 17, 2005

Booker: First habeas denial, Quiron v. United States

In Quirion v. United States, (available here), a magistrate recommends against granting habeas in a Booker petition -- the first known Booker habeas decision. The relevant portion of the opinion is reproduced below.

Sixth Amendment Right to Jury Trial

In Apprendi v. New Jersey, the United States Supreme Court concluded that the
due-process and jury-trial guarantees in the United States Constitution require that,
"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. 466, 490 (2000). In Blakely the Court applied
Apprendi to a state determinate sentencing provision that had analytical resonance with
the federal sentencing scheme. Thus, Quirion's belief that Blakely (cum Booker), might
offer him succor.

With respect to the merits1 of this ground, Quirion is out of luck for two reasons.
On the same day that Blakely was handed down, the United States Supreme Court
concluded tha t one of Blakely's direct ancestors, Ring v. Arizona, 536 U.S. 584 (2002) --
which applied the principle of Apprendi to death sentences imposed on the basis of
aggravating factors -- was not to be applied retroactively to cases once they were final on
direct review. See Schriro v. Summerlin, __ U.S. __, 124 S. Ct. 2519, 2526 (2004)
("Ring announced a new procedural rule that does not apply retroactively to cases already
final on direct review."). In the wake of Blakely, most courts that considered the
question have concluded that Summerlin answered the retroactivity question in the
negative vis-B-vis Blakely grounds pressed in timely 28 U.S.C. § 2255 motions. See,
e.g., Burrell v. United States, 384 F.3d 22, 26 n.5 (2d Cir. 2004) (observing this
proposit ion in affirming the District Court's conclusion that the movant was not entitled
to a certificate of appealability on the question of whether Apprendi applied
retroactively); Lilly v. United States, 342 F.Supp.2d 532, 537 (W.D. Va. 2004) ("In
Summerlin, the Court found that Ring v. Arizona, 536 U.S. 584 (2002), a case that
extended Apprendi to aggravating factors in capital cases, was a new procedural rule and
was not retroactive. A similar analysis dictates that Blakely announced a new procedural
rule and is similarly non-retroactive.") (citation omitted); accord Orchard v. United
States, 332 F. Supp, 23 275 (D. Me. 2004); see also cf. In re Dean, 375 F.3d 1287,

Fn. 1 As mentioned, Quirion did not take a direct appeal and this Sixth Amendment challenge is the type of challenge that should have been pursued through a direct appeal. Quirion attributes this default to his status as a lay person and his counsel's ineffectiveness.
1290 (11th Cir. 2004) ("Because Blakely, like Ring, is based on an extension of
Apprendi, Dean cannot show that the Supreme Court has made that decision retroactive
to cases already final on direct review. Accordingly, Dean's proposed claim fails to
satisfy the statutory criteria [for filing a second or successive § 2255 motion].").

The 'merits majority' in Booker expressly affirmed the holding of Apprendi
concluding: "Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict mus t be admitted by the defendant or proved to a jury beyond a
reasonable doubt." __ U.S. at __, 2005 WL 50108, at *15; see also Sepulveda v. United
States, 330 F.3d 55, 63 (1st Cir. 2003) ("We hold, without serious question, that
Apprendi prescribes a new rule of criminal procedure, and that Teague does not permit
inferior federal courts to apply the Apprendi rule retroactively to cases on collateral
review."). The fact that Booker applied Apprendi to the United States Sentencing
Guidelines, as opposed to a state capital sentencing scheme, would not shift the tectonic plates of the Summerlin retroactivity analysis
. What is more, Quirion is challenging the imposition of a sentence based on prior convictions and Booker expressly reaffirmed the carving out of prior-convictions from the Apprendi Sixth Amendment mandate. See United States v. Stearns, 387 F.3d 104, 107 (1st Cir.2004) (concluding that Blakely does
not support challenge to sentences enhanced due to prior convictions).


For these reasons I recommend that the Court DENY Quirion's 28 U.S.C. § 2255

Steven Kalar, Senior Litigator N.D. Cal.


Anonymous Anonymous said...

What follows is my retroactivity analysis (and analysis of pending direct appeals) that I emailed to your favorite professor (Berman of course), but haven't heard his take on it yet, what do you guys think, am I on to something or am I sadly misguided?

To preface the habeas retroactivity analysis, we need to look at what errors are really involved in Booker. With all the hoopla of what happens next as it applies to the trial level, I am not seeing any real commentary on what to do with cases on direct appeal, but the opinions give very good guidance. There are actually two different errors, the first is the Blakely error of judicial fact-finding that is subject to plain error review and we can use Freddie Booker's facts as a guideline (no pun intended) as to what a meritorious case looks like, since it does not appear he made a 6th amendment argument he presumably won on plain error grounds.

Secondly, however, Justice Breyer states that if there is not a 6th amendment (Blakely) violation, then harmless error review is used. So this means there is a second error established in Booker, which I am creatively calling a Booker error, which is the court erring by sentencing a defendant to a sentence mandated by an unconstitutional sentencing system which has now been struck down. Since harmless error is used for this, this means no objection was necessary, and I believe the government will have to prove beyond a reasonable doubt that the defendant would have received the same sentence had the judge used his discretion. Then if the Booker issue fails the harmless error analysis, the review is for reasonableness. So while some defendants will have a Blakely issue, all current appellants have a Booker issue.

Regarding retroactivity on habeas, Booker of course didn't discuss it but nothing can be inferred from this because it wasn't before the court and any comment would have been non-binding dicta (see Tyler v. Cain). While I agree that there are slim hopes for Blakely error being retroactive on habeas given the Apprendi experience, and while it will still be an uphill battle, I think a Booker error is far more likely to meet a Teague exception since it is systemic and doesn't just go to a finding or two, and so it can better be argued that the new constitutional violation-free sentencing procedures are implicit in the concept of ordered liberty. So theoretically, everyone who was ever sentenced under the guidelines and is still in prison or on supervised release can bring a Booker claim if it is their first habeas, a second or successive will of course be harder unless the Supreme's declare it to be retroactive or if someone else can think of two cases acting together that mandate it, I can't offhand. Or course the harder Brecht standard would be used on habeas (at least in the 9th circuit), rather than harmless error. But the important part is, unlike the situation of Blakely error given Apprendi, there is nothing out there now precluding raising a Booker error using a Teague exception, so these cases can be brought until this idea is played out. Let the floodgates be opened!!!

Greg Silvey
private appellate attorney-Boise

Wednesday, January 19, 2005 1:57:00 PM  

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