Monday, June 05, 2006

Supreme Court to determine Blakely's retroactivity

This morning, the Supreme Court granted certiorari in Burton v. Waddington, No. 05-9222, involving the retroactive applicability of Blakely on habeas corpus. The questions presented are:

Mr. Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range and this Washington state sentence became final after Apprendi v. New Jersey but before Blakely v. Washington:

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?

2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?

With this cert. grant and the Court's earlier grant in Whorton v. Bockting, (on the issue of Crawford's retroactivity), it is more important than ever to PRESERVE THE ISSUE.


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