IS BLAKELY V. WASHINGTON RETROACTIVE? Haifeng Peng* INTRODUCTION Consider the following scenario: two men, X and Y, were arrested in Washington for assaulting a girl and attempting to have sex with her.1 Thereafter, both defendants pled guilty to one count of second-degree assault2 and one count of second-degree assault with sexual motivations.3 Under Washington state law, the standard sentence range * Senior Notes Editor, Cardozo Law Review, J.D. Candidate June 2006. I would like to dedicate this Note to my parents, Ziming Peng and Yuying Li, for their unconditional love and support all these years. I owe a great deal to Professor Kyron Huigens for inspiring me to explore criminal law and giving me invaluable guidance on writing this paper. I would also like to thank Brian Bank for his thoughtful advice, Krista Thomas and Wing Liang for their great editing work on this Note. 1 This hypothetical is based on State v. McLean, No. 30739-1-II, 2004 Wash. App. LEXIS 2324 (Oct. 12, 2004). 2 Second-degree assault is defined in the Washington Criminal Code, which provides that: (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or (c) Assaults another with a deadly weapon; or (d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or (e) With intent to commit a felony, assaults another; or (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture. WASH. REV. CODE § 9A.36.021 (2005). 3 Second-degree assault with a sexual motivation is defined in title 9, section 94A.835 of the Washington Criminal Code, which provides that: (1) The prosecuting attorney shall file a special allegation of sexual motivation in every criminal case other than sex offenses . . . when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact-finder. WASH. REV. CODE § 9.94A.835 (2005). 423 424 CARDOZO LAW REVIEW [Vol. 27:1 for either crime is fifteen to twenty months.4 However, a proper finding of statutory or non-statutory aggravating factors may increase the sentence above that standard range.5 In this scenario, both defendants admitted only to the facts constituting the elements of the two offenses, not to any fact supporting an exceptional sentence. After finding, by a preponderance of the evidence, the existence of aggravating factors— including a pattern of violence and extreme cruelty—the court sentenced both defendants to sixty months on both counts. The defendants sought direct appeal to the Washington Supreme Court but were denied discretionary review of their sentences. The defendants then filed separate petitions for certiorari to the U.S. Supreme Court. On June 25, 2000, the Supreme Court denied defendant X’s petition and his conviction became final.6 On June 27, 2000, the Supreme Court denied defendant Y’s petition and his conviction also became final. Subsequently, both defendants filed writs of habeas corpus7 in a federal court to seek collateral review8 of their sentences. On June 24, 2004, the Supreme Court in Blakely v. Washington9 invalidated Washington state’s sentencing guidelines scheme because it violated the principle announced in Apprendi v. New Jersey.10 The Apprendi Court held that the Constitution requires a jury, not a judge, to find, beyond a reasonable doubt, any fact necessary to impose 4 McLean, 2004 Wash. App. LEXIS 2324, at *3. 5 See WASH. REV. CODE § 9.94A.535 (2005) (“The court may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.”). 6 “State convictions are final ‘for purpose of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.’” Beard v. Banks, 124 S. Ct. 2504, 2510 (2004) (quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)). 7 Writ of habeas corpus is the mechanism for state prisoners to challenge their convictions and sentences in a federal court. This is termed “collateral review.” See infra note 8. 8 Compared with review by the Supreme Court which is termed “direct review,” collateral review refers to a federal district court’s review by way of habeas corpus. See infra Part I.A for more details. This Note only concerns retroactivity on collateral review. For a comparison of retroactivity on direct review, see Meir Katz, Note, Plainly Not “Error”: Adjudicative Retroactivity on Direct Review, 25 CARDOZO L. REV. 1979 (2004) (arguing that the Court should abandon procedural error in adjudicative retroactivity in order to achieve equality on direct review). 9 124 S. Ct. 2531 (2004). The Blakely decision “sent a virtual shockwave through the criminal justice system.” Jason Hernandez, Blakely’s Potential, 38 COLUM. J.L. & SOC. PROBS. 19 (2004) (discussing Blakely’s potential to reform the Federal Sentencing Guidelines). Although Blakely itself addressed Washington state’s sentencing guidelines, most of the post-Blakely attention focused on the fate of the United States Sentencing Guidelines. See Rachel E. Barkow, The Devil You Know: Federal Sentencing After Blakely, 16 FED. SENT. REP. 312, 312 (2004) (“The big question on everyone’s mind in the wake of the Supreme Court’s decision in Blakely v. Washington is what will become of the United States Sentencing Guidelines.”). In the Supreme Court’s recent decision United States v. Booker, 125 S. Ct. 738 (2005), the Court applied Blakely to the Federal Sentencing Guidelines and held the Guidelines unconstitutional. 10 530 U.S. 466 (2000). See Blakely, 124 S. Ct. at 2536-38. 2005] IS BLAKELY RETROACTIVE? 425 sentences above the statutory maximum.11 Because defendants X and Y’s sentences became final before the Court decided Blakely,12 X and Y can only invoke Blakely to challenge their sentences in their federal habeas corpus proceedings if Blakely applies retroactively on collateral review.13 Under the Court’s current retroactivity doctrine, as originated in Teague v. Lane,14 Blakely applies retroactively on collateral review if it did not announce a new rule, announced a substantive rule, or falls within one of Teague’s two exceptions.15 The Supreme Court has not yet decided whether the holding in Blakely is retroactive.16 So far, almost all federal courts having considered Blakely’s retroactivity have held that it does not apply retroactively.17 Despite such decisions, this Note argues that Blakely indeed applies retroactively, based on three independent theories: (1) Blakely merely applied Apprendi and thus did not announce a new rule;18 (2) Blakely’s Fifth Amendment requirement of proof beyond a reasonable doubt makes it a substantive, not procedural, rule;19 and (3) the 11 Apprendi, 530 U.S. at 490. 12 See supra note 6. 13 This Note only concerns retroactivity on collateral review in federal habeas corpus proceedings. States may have their own habeas corpus proceedings. Even if the Court holds that Blakely is not retroactive, states may choose to apply Blakely retroactively in their own courts. For a discussion of state habeas corpus, see John H. Blume, An Introduction to Post-Conviction Remedies, Practice and Procedure in South Carolina, 45 S.C. L. REV. 235 (1994). 14 489 U.S. 288 (1989). 15 See infra Part I. 16 United States v. Siegelbaum, 359 F. Supp. 2d 1104 (D. Or. 2005). 17 See, e.g., Schardt v. Payne, No. 02-36164, 2005 U.S. App. LEXIS 13569 (9th Cir. July 8, 2005) (holding that Blakely is non-retroactive because it announced a new, non-substantive rule that did not fall under Teague’s exceptions); Garcia v. United States, No. 04-CV-0465, 2004 U.S. Dist. LEXIS 14984 (N.D.N.Y. Aug. 4, 2004) (reasoning that because Blakely is an extension of Apprendi and under Schriro, Apprendi is non-retroactive, therefore Blakely is non-retroactive); see also Lilly v. United States, No. 1:04CV00079, 2004 U.S. Dist. LEXIS 21623, at *16 (W.D. Va. Oct. 28, 2004) (“Blakely is a new procedural rule that does not meet the requirement of being a watershed rule of criminal procedure.”); Orchard v. United States, 332 F. Supp. 2d 275 (D. Me. 2004); Morris v. United States, 333 F. Supp. 2d 759 (C.D. Ill. 2004); Jaubert v. Dretke, No. 4:04- CV-327-Y, 2004 U.S. Dist. LEXIS 17193 (N.D. Tex. Aug. 27, 2004); Concepcion v. United States, 328 F. Supp. 2d 372, 374 (E.D.N.Y 2004); Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 512 n.3 (S.D.N.Y. 2004); United States v. Lowe, No. 04 C 50019, 2004 U.S. Dist. LEXIS 15455, at *7 (N.D. Ill. Aug. 5, 2004); United States v. Stoltz, 325 F. Supp. 2d 982, 987 (D. Minn. 2004); Patterson v. United States, No. 03-CV-74948-DT, 2004 U.S. Dist. LEXIS 12402 (E.D. Mich. June 25, 2004). Booker, however, has prompted at least one federal court to recognize the possibility that the Court may apply Blakely retroactively. See Siegelbaum, 359 F. Supp. 2d at 1108 (“I cannot exclude the possibility that the Court might apply Blakely/Booker retroactively in some situations.”); id. (“[E]xisting precedent does not definitively answer whether the rule announced in Blakely/Booker applies retroactively.”). One state court has held that Blakely is retroactive. See People v. Johnson, No. 03CA2339, 2005 Colo. App. LEXIS 511, at *3 (Colo. Ct. App. Apr. 7, 2005). 18 See infra Part III.A. 19 See infra Part III.B. 426 CARDOZO LAW REVIEW [Vol. 27:1 reasonable-doubt standard also qualifies Blakely under the second Teague exception.20 Based on both theoretical and practical concerns, this Note concludes that the most appropriate theory on which to base Blakely’s retroactivity is that it did not announce a new rule. Part I of this Note describes the evolution of the retroactivity doctrine in federal habeas corpus proceedings, namely the Teague doctrine. Part II reviews and analyzes Apprendi and its progeny, namely Ring v. Arizona21 and Blakely. Part III first discusses Ring’s non-retroactivity,22 and then proposes the three theories under which Blakely can apply retroactively: lack of a new rule, Blakely’s substantive nature, and exception to the Teague doctrine. After comparing the three theories from both legal and practical points of view, Part III concludes that Blakely did not announce a new rule. Accordingly, Blakely applies to all prisoners whose convictions became final after the Court decided Apprendi on June 26, 2000. This means that in the hypothetical above, Blakely would apply to defendant Y in his habeas corpus proceeding but not to defendant X. I. RETROACTIVITY DOCTRINE IN HABEAS CORPUS PROCEEDINGS A. Federal Habeas Corpus The U.S. Constitution guarantees “[t]he Privilege of the Writ of Habeas Corpus.”23 In 1867, Congress authorized federal courts to grant writs of habeas corpus24 to a state prisoner whose custody may be in violation of the Constitution or federal law.25 After a state prisoner26 has unsuccessfully challenged his conviction and sentence in state courts, he can seek federal review of 20 See infra Part III.C. 21 536 U.S. 584 (2002) (holding that Arizona’s capital sentencing statute was unconstitutional because it allowed the judge to find aggravating factors in order to impose the death penalty on the defendant). 22 In Schriro v. Summerlin, 124 S. Ct. 2519, 2526-27 (2004), the Court held that Ring does not apply retroactively because it announced a new procedural rule that does not fall within any Teague exception. 23 U.S. CONST. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). 24 For a general description of habeas corpus, see 1 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 2.1 (4th ed. 2001). 25 Judiciary Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (“The several courts of the United States . . . shall have the power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.”). 26 State prisoners’ habeas corpus proceedings are governed by 28 U.S.C. § 2244 (2005). Federal prisoners can also file habeas corpus proceedings and such proceedings are governed by 28 U.S.C. § 2255 (2005). This Note focuses on state prisoners’ habeas corpus proceedings. 2005] IS BLAKELY RETROACTIVE? 427 such convictions and sentences in two ways: by filing a petition by writ of certiorari to the Supreme Court or filing a petition by writ of habeas corpus to a district court.27 The former method is termed “direct review” and the latter “collateral review.”28 For collateral review,29 the petitioner, by writ of habeas corpus, must show that he (1) “is in custody in violation of the Constitution or laws or treaties of the United States”30 and (2) has exhausted all state remedies.31 Even if the district court would grant the habeas corpus petition, the Supreme Court’s retroactivity doctrine may nonetheless prohibit the petitioner from availing himself of a newly announced constitutional rule. B. Before Teague Before 1965, new constitutional rules generally applied retroactively to cases brought by writs of habeas corpus.32 This resulted from the notion that judges did not make law, but only discovered law and therefore any ruling contrary to the newly “discovered” law was never valid law.33 27 See 1 LIEBMAN & HERTZ, supra note 24, § 2.4. 28 See 1 id. There are differences between direct review by the Supreme Court and collateral review by district courts. The differences are four-fold. First, the Supreme Court’s granting certiorari is discretionary while district courts must review all habeas corpus proceedings that meet the jurisdiction requirements. Second, district courts are bound by existing Supreme Court precedents while the Supreme Court may overrule its own precedents. Third, in a small number of cases, the Supreme Court must remand to other courts to resolve certain evidentiary issues while district courts must hear the evidence. Fourth, the harmless error standard applicable in habeas corpus proceedings differs from the standard the Supreme Court applies in direct review. 1 id. 29 Similar to collateral review, direct review by the Supreme Court requires that the petition by writ of certiorari must (1) show that the petitioner has exhausted the available direct appeals to state courts and (2) raise a federal question. 1 id. 30 28 U.S.C. § 2241(c)(3) (2005). 31 1 LIEBMAN & HERTZ, supra note 24, § 2.4b. 32 See, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 94 (1993) (“‘Both the common law and our own decisions’ have ‘recognized a general rule of retrospective effect for the constitutional decisions of this Court.’ Nothing in the Constitution alters the fundamental rule of ‘retrospective operation’ that has governed ‘judicial decisions . . . for near a thousand years.’” (quoting Robinson v. Neil, 409 U.S. 505, 507 (1973) and Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910)). 33 See Linkletter v. Walker, 381 U.S. 618 (1965). The Linkletter Court explained: At common law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to “pronounce a new law, but to maintain and expound the old one.” This Court followed that rule in Norton v. Shelby County, holding that unconstitutional action “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” The judge rather 428 CARDOZO LAW REVIEW [Vol. 27:1 In the 1960s, the Supreme Court faced the problem of a large number of prisoners seeking release by utilizing a variety of newly announced constitutional rules.34 In response, the Court adopted a limiting retroactivity doctrine in Linkletter v. Walker.35 The Linkletter court articulated a three-factor test for determining retroactivity, examining: (1) the purpose of the new rule; (2) the reliance by law enforcement authorities on the old rule; and (3) the effect on the administration of justice if the new rule was held to be retroactive.36 This test applied equally to cases on direct review and on collateral review.37 Instead of clarifying the doctrine, however, this three-factor test ultimately led to inconsistent results.38 Under the Linkletter test, some rules only applied to cases on direct review, some only to defendants in those cases announcing such rules, and yet some others to cases in which trial had not begun.39 Despite the inconsistency, the Court than being the creator of the law was but its discoverer. Id. at 622-23 (citations omitted). 34 Ethan I. Jacobs, Note, Is Ring Retroactive?, 103 COLUM. L. REV. 1805, 1818 (2003) (“In the 1960s, the Court underwent a ‘criminal procedure revolution,’ finding a variety of new constitutional rights and raising questions about whether those new rights would apply to defendants in all cases, or only to some.”). 35 In Linkletter, the Court had to decide whether to retroactively apply Mapp v. Ohio, 367 U.S. 643 (1961). Linkletter, 381 U.S. at 622. In Mapp, the Court held that the Due Process Clause of the Fourteenth Amendment required the exclusion of evidence seized in violation of the Fourth Amendment. Mapp, 367 U.S. at 657-60. 36 Linkletter, 381 U.S. at 636. 37 1 LIEBMAN & HERTZ, supra note 24, § 25.2. Applying this new test to the exclusionary rule announced in Mapp, the Court found that: (1) the purpose of the Mapp rule was to deter unlawful police searches; (2) states and defendants had relied on the rule prior to Mapp that did not require the exclusion of such illegally obtained evidence; and (3) retroactive application of the Mapp rule would seriously disrupt the administration of justice due to the unavailability of evidence and witnesses on rehearing. Relying on such findings, the Court held that Mapp was not retroactive. Mapp, 367 U.S. at 636-39. 38 For example, in Johnson v. New Jersey, 384 U.S. 719 (1966), the Court declined to apply the rule in Miranda v. Arizona, 384 U.S. 436 (1966), to the defendant despite the fact that he was also on direct appeal like the defendants in Miranda. Johnson, 384 U.S. at 733-35. In Miranda, the Court held that “absent other effective measures to protect the Fifth Amendment privilege against self-incrimination, a person in custody must be warned prior to interrogation that he has certain rights, including the right to remain silent.” Teague v. Lane, 489 U.S. 288, 303 (1989). The Court’s refusal to give Miranda retroactive effect resulted in “disparate treatment of similarly situated defendants.” Id. 39 Teague, 489 U.S. at 302. Justice Harlan highlighted the problem in Desist v. United States, 394 U.S. 244 (1969). He pointed out that: In the four short years since we embraced the notion that our constitutional decisions in criminal cases need not be retroactively applied, we have created an extraordinary collection of rules to govern the application of that principle. We have held that certain “new” rules are to be applied to all cases then subject to direct review, certain others are to be applied to all those cases in which trials have not yet commenced, certain others are to be applied to all those cases in which the tainted evidence has not yet been introduced at trial, and still others are to be applied only to the party involved in the case in which the new rule is announced and to all future cases in which the proscribed 2005] IS BLAKELY RETROACTIVE? 429 continued to apply the three-factor test announced in Linkletter.40 Justice Harlan’s dissent in Desist v. United States,41 signaled the beginning of the end to the Linkletter test.42 Justice Harlan stressed that it was arbitrary for the Court to pick one defendant as the sole beneficiary of a new constitutional rule while denying that benefit to other similarly situated defendants.43 This arbitrariness violated the basic judicial principle of treating similarly situated defendants similarly.44 In Justice Harlan’s view, all new constitutional rules should apply to cases pending on direct review.45 As to cases pending on collateral review, however, Justice Harlan took a different position: new rules in general should not apply retroactively to cases on collateral review.46 He reasoned that collateral review should not substitute direct review because the state’s interest in finality would favor not litigating in federal court a case already settled in state court.47 official conduct has not yet occurred. Id. at 256-57 (Harlan, J., dissenting). 40 For example, in Desist, the Court again declined to apply the rule announced in Katz v. United States, 389 U.S. 347 (1967), to a defendant whose conviction was pending on appeal when the Court announced Katz because retroactivity did not serve the deterrence purpose of the Katz rule. Desist v. United States, 394 U.S. 244, 249-52 (1969). In Katz, the Court held that the Fourth Amendment requires a magistrate’s approval and probable cause for the use of electronic surveillance over private conversations. See id. 41 394 U.S. 244. 42 See 1 LIEBMAN & HERTZ, supra note 24, § 25.2. For a proposal to discard the Linkletter doctrine, see James B. Haddad, “Retroactivity Should Be Rethought”: A Call for the End of the Linkletter Doctrine, 60 J. CRIM. L. CRIMINOLOGY & POL. SCI. 417 (1969). 43 Desist, 394 U.S. at 258-59 (Harlan, J., dissenting). 44 Id. Justice Harlan stated: Matters of basic principle are at stake. In the classical view of constitutional adjudication, which I share, criminal defendants cannot come before this Court simply to request largesse. This Court is entitled to decide constitutional issues only when the facts of a particular case require their resolution for a just adjudication on the merits. We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a “new” rule of constitutional law. Id. 45 Id. at 258. 46 Mackey v. United States, 401 U.S. 667, 684 (1970) (Harlan, J., concurring in part and dissenting in part). 47 Id. at 682-84 (Harlan, J., concurring in part and dissenting in part). Justice Harlan stated that: Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ 430 CARDOZO LAW REVIEW [Vol. 27:1 Justice Harlan, however, recognized two exceptions to this general principle of non-retroactivity on collateral review. The first exception applied to new substantive rules.48 Historically, such rules were the grounds for attacking state convictions on habeas corpus proceedings and the states’ interest in finality yielded to the enforcement of these rules.49 New procedural rules that were “‘implicit in the concept of ordered liberty’” constituted the second exception proposed by Justice Harlan. 50 In subsequent cases, the Court slowly adopted Justice Harlan’s view that new constitutional rules should apply to all cases pending on direct review or that were not yet final.51 The Court ultimately held that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.”52 to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed. Indeed, this interest in finality might well lead to a decision to exclude completely certain legal issues, whether or not properly determined under the law prevailing at the time of trial, from the cognizance of courts administering this collateral remedy. Id. 48 In Justice Harlan’s view, substantive rules were “those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Id. at 692. 49 Id. at 693 (“There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose. Moreover, issuance of the writ on substantive due process grounds entails none of the adverse collateral consequences of retrial I have described above.”). 50 Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). In explaining what these procedural rules would be, Justice Harlan provided that: Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. Id. 51 The Court began to adopt this view in United States v. Johnson, 457 U.S. 537, 562 (1982) (holding that the decision in Payton v. New York, 445 U.S. 573 (1980), prohibiting police from entering a suspect’s home to make a felony arrest without warrant or consent, should apply to cases pending on direct review even where the violation took place before the Court rendered the decision) and Shea v. Louisiana, 470 U.S. 51, 60-61 (1985) (holding that the decision in Edwards v. Arizona, 451 U.S. 477 (1981), prohibiting the use of a confession obtained in interrogation after a request for an attorney, should apply to a case pending on direct review, even where the interrogation took place before the Edwards decision). 52 Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (holding that the decision in Batson v. Kentucky, 476 U.S. 79 (1986), which held that a defendant could establish a prima facie case of racial discrimination based on the prosecution’s use of peremptory challenges, should apply to all cases on direct appeal). The Court explained that there were two reasons for adopting Justice Harlan’s view. “First, it is a settled principle that this Court adjudicates only ‘cases’ and ‘controversies.’” Griffith, 479 U.S. at 322 (quoting U.S. CONST. art. III, § 2). “Second, selective application of new rules violates the principle of treating similarly situated defendants the same.” 2005] IS BLAKELY RETROACTIVE? 431 Nevertheless, the Court left open the question of whether it should treat cases on collateral review the same way as cases on direct review. 53 In other words, should the Court apply new constitutional rules retroactively to all cases on collateral review? The Court answered this question in Teague v. Lane.54 C. Teague and Its Progeny The principle question in Teague was whether the Court should extend the Sixth Amendment fair cross-section requirement55 to the petit jury.56 In a plurality opinion,57 Justice O’Connor avoided this question by holding that any rule extending the fair cross-section requirement to the petit jury would lack retroactivity even if adopted.58 Instead, the plurality announced a new analysis for the retroactivity doctrine, which the Court has since ratified on numerous occasions.59 First, the Teague plurality stated that the Court should address retroactivity as a threshold question before announcing a new rule.60 The plurality reasoned that once the Court applied the new rule to the defendant in the case announcing such a rule, justice required that the rule apply retroactively to all similarly situated defendants.61 Second, the plurality opinion concluded that there existed a sharp divide between state direct review and federal collateral review Id. at 323. 53 1 LIEBMAN & HERTZ, supra note 24, § 25.2. 54 In Teague, the Court recognized that it was “time to clarify how the question of retroactivity should be resolved for cases on collateral review.” Teague v. Lane, 489 U.S. 288, 300 (1989). 55 In Taylor v. Louisiana, 419 U.S. 522, 538 (1975), the Court held that the Sixth Amendment requires the jury venire to consist of a fair cross-section of the community. 56 Teague, 489 U.S. at 292. While the Court in Taylor held that jury venire must fairly present the community, see supra note 55, it also expressly stated that the petit jury did not actually have to fairly represent the community. Taylor, 419 U.S. at 538 (“It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.”). 57 Justice O’Connor’s opinion was joined by Chief Justice Rehnquist, Justice Scalia and Justice Kennedy. See Teague, 489 U.S. at 299-316. 58 Id. at 299. Because the plurality opinion held that the extension of the fair cross-section requirement to the petit jury did not apply retroactively, the petitioner would not be able to take advantage of this extension. Therefore, the Court did not reach the petitioner’s claim. Id. at 316. 59 See, e.g., Gray v. Netherland, 518 U.S. 152 (1996); Gilmore v. Taylor, 508 U.S. 333 (1993); Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Butler v. McKellar, 494 U.S. 407 (1990); Zant v. Moore, 489 U.S. 836 (1989). 60 Teague, 489 U.S. at 299-300. In the cases prior to Teague, the Court had always rendered a new rule before addressing the retroactivity issue, either in the same case or in a later case when a different defendant tried to apply the new rule. Id. 61 Id. 432 CARDOZO LAW REVIEW [Vol. 27:1 proceedings.62 Relying on Justice Harlan’s earlier dissenting opinions,63 the Teague plurality held that new constitutional rules of criminal procedure should not apply to cases that are final before the Court announces the new rules, unless they fall within one of two exceptions.64 The first exception encompasses rules that “[place] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.”65 Examples of rules that fall within this exception include rules that prohibit the execution of minors66 and the insane. The second exception, a modified version of Justice Harlan’s original view, covers “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”67 The right to counsel68 is an example of the rules that fall within this second exception.69 The Teague plurality, without clearly defining “new rule” for retroactivity purposes70 suggested that generally a rule is new if it 62 1 LIEBMAN & HERTZ, supra note 24, § 25.2; see also Teague, 489 U.S. at 305-11. 63 The Teague Court quoted Justice Harlan: Given the “broad scope of constitutional issues cognizable on habeas,” Justice Harlan argued that it is “sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation.” As he had explained in Desist, “the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function . . . the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.” Teague, 489 U.S. at 306 (quoting Mackey v. United States, 401 U.S. 667, 689 (1970) and Desist v. United States, 394 U.S. 244, 262-63 (1969)). 64 Id. at 310. For a detailed discussion of the two Teague exceptions, see 1 LIEBMAN & HERTZ, supra note 24, § 25.7. 65 Teague, 489 U.S. at 311. This exception “should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 303, 330 (1989). 66 Teague, 489 U.S. at 331 (citing Thompson v. Oklahoma, 487 U.S. 815 (1988), which held that it is unconstitutional to execute defendants who were under sixteen when committing the offense). 67 Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague, 489 U.S. at 311). This formulation of the second exception, i.e. combining fundamental fairness with accuracy, did not accurately represent Justice Harlan’s definition of this exception. See Teague, 489 U.S. at 321 (Stevens, J., dissenting) (noting Justice Harlan’s rejection of linking these two requirements); 1 LIEBMAN & HERTZ, supra note 24, § 25.7 (“In defining the second exception, Justice Harlan disagreed with himself; the Teague plurality (favoring Harlan’s earlier view) disagreed with the concurring Justices (endorsing Harlan’s later view); and the post-Teague majority (fusing both Harlan views) disagreed with all prior views.”). 68 Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Fourteenth Amendment requires that states afford defendants the right to counsel in all criminal cases as guaranteed by the Sixth Amendment). 69 Gray v. Netherland, 518 U.S. 152, 170 (1996) (referring to the decision in Gideon as a “paradigmatic example” of Teague’s second exception). 70 Teague, 489 U.S. at 301 (“It is admittedly often difficult to determine when a case 2005] IS BLAKELY RETROACTIVE? 433 “breaks new ground or imposes a new obligation on the States or the Federal Government.”71 In other words, a rule is new if the precedent existing when the defendant’s conviction became final did not dictate such a result.72 Because the Teague analysis prevents a defendant from utilizing a new constitutional rule if his conviction became final before the Court announced the rule, the Teague doctrine “has profoundly changed the law of habeas corpus and narrowed the range of relief that is available in habeas corpus proceedings.”73 D. Summary of the Teague Doctrine In summary, a federal court must follow a three-step process in analyzing retroactivity under Teague before applying the rule to the defendant on collateral review. First, the court must determine when a defendant’s conviction became final. Second, the court must decide whether the basis underlying the petition is a new constitutional rule of procedure. Third, if the rule is new, the court must then decide whether the rule falls within either of Teague’s two exceptions. If the court determines that the rule is new and does not fall within Teague’s exceptions, the court cannot apply the rule to the defendant.74 II. FROM APPRENDI TO BLAKELY A. Apprendi v. New Jersey: Element of Offense or Sentencing Factor? In 2000, the Supreme Court decided the landmark case Apprendi v. New Jersey, holding that the Constitution prohibits judges from increasing criminal sentences beyond the statutory maximum based on announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes.”). 71 Id. See, e. g., Rock v. Arkansas, 483 U.S. 44, 62 (1987) (holding that a per se rule excluding all hypnotically refreshed testimony violates a defendant’s right to testify). 72 Teague, 489 U.S. at 301; see generally Truesdale v. Aiken, 480 U.S. 527, 528-29 (1987) (Powell, J., dissenting). In a later decision, Sawyer v. Smith, 497 U.S. 227 (1990), the Court broadened the definition of “new rules” to “all decisions that ‘reasonable jurists’ would not have necessarily regarded as ineluctable under existing precedent.” 1 LIEBMAN & HERTZ, supra note 24, § 25.2. In Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997), the Court held that a rule is new if it was “dictated by then-existing precedent,” or in other words, if “the unlawfulness of [defendant’s] conviction was apparent to all reasonable jurists.” 73 1 LIEBMAN & HERTZ, supra note 24, § 25.1. 74 Beard v. Banks, 124 S. Ct. 2504, 2510 (2004). 434 CARDOZO LAW REVIEW [Vol. 27:1 facts other than those admitted by the defendant or found by the jury beyond a reasonable doubt.75 Apprendi involved a New Jersey hate crime statute. Charles C. Apprendi, Jr., a Caucasian man, fired shots into the home of an African- American family that had recently moved into a previously all-white neighborhood in New Jersey.76 After Apprendi was arrested, he admitted to the shooting and stated that he did not want the family in the neighborhood because of their race.77 Apprendi later pled guilty to two counts of second-degree unlawful possession of a firearm.78 Under New Jersey law, each second-degree offense carries a maximum penalty of ten years.79 A separate state hate crime statute,80 however, authorized the court to increase the maximum sentence of each of these offenses to twenty years if it finds that the defendant committed the crime with a racial purpose.81 At the sentencing hearing, the court found, by a preponderance of the evidence, that Apprendi acted with a racial bias.82 Applying the hate crime statute, the judge increased Apprendi’s sentence to twelve years on one of these two counts.83 Apprendi appealed on the ground that the Constitution requires the jury to determine whether he acted with racial bias beyond a reasonable doubt.84 Affirming the trial judge’s decision, the state appellate court characterized the hate crime enhancement as “motive,” a traditional “sentencing factor,” rather than an essential “element” of the offense.85 The New Jersey Supreme Court disagreed with such a characterization 75 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Right after the Court’s decision in Apprendi, some commentators suggested that it was the end of the Sentencing Guidelines. See, e.g., Jeffrey Standen, The End of the Era of Sentencing Guidelines: Apprendi v. New Jersey, 87 IOWA L. REV. 775 (2002). 76 Apprendi, 530 U.S. at 469. 77 Apprendi retracted the statement later. Id. 78 See N.J. STAT. ANN. § 2C:39-4a (1995). Apprendi also pleaded guilty to one count of third-degree unlawful possession of an antipersonnel bomb, which was to run concurrently with the two counts of the second-degree offense and was not at issue before the Court. See Apprendi, 530 U.S. at 469-70. 79 Apprendi, 530 U.S. at 470; see N.J. STAT. ANN. § 2C:43-6(2) (2005). 80 The hate crime statute applied when “the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” N.J. STAT. ANN. § 2C:44-3(e) (2000). 81 See N.J. STAT. ANN. § 2C:43-7(a)(3) (2000). The indictment did not refer to the state hate crime statute. Nor did it allege that Apprendi committed the crime for a racial purpose. However, the Court did not address this indictment issue because Apprendi did not raise it. Apprendi, 530 U.S. at 477 n.3. 82 Apprendi, 530 U.S. at 471. 83 Id. The judge imposed a sentence of less than ten years on the other second-degree offense to run concurrently. See id. 84 Id. 85 Id. at 471-72. The New Jersey appellate court relied on McMillan v. Pennsylvania, 477 U.S. 79 (1986) (holding that visible possession of a firearm could be treated as a sentencing factor, not an element of the crime). 2005] IS BLAKELY RETROACTIVE? 435 of the racial bias, but nonetheless held the state hate crime statute valid and affirmed the lower court’s decision.86 The U.S. Supreme Court reversed and held that the jury must find, beyond a reasonable doubt, any fact, other than a prior conviction, that increases the sentence for a crime above the statutory maximum.87 In dismissing New Jersey’s defense that racial bias was not an “element” but rather a “sentencing factor” of motive,88 the Court stressed that the inquiry should focus on the effect of the sentence, i.e., whether the finding of the additional factor exposed the defendant to a greater sentence than what the jury’s guilty verdict authorized.89 in 86 State v. Apprendi, 731 A.2d 485, 492 (N.J. 1999). (“Merely because the Legislature has placed the hate-crimes enhancer within the sentencing provisions of the Code of Criminal Justice does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.”). The New Jersey Supreme Court found that the statute did not “create a separate offense calling for a separate penalty.” Rather, “the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor.” Id. at 494-95. 87 Apprendi, 530 U.S. at 490. The Court expressly confirmed its opinion in Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (noting that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”). See also Apprendi, 530 U.S. at 490 (“In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones.”). The practical effect of Apprendi, at least in one commentator’s view, was that it made federal defendants worse off, because it eliminated their genuine opportunities to litigate facts at sentencing. See Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097 (2001). 88 New Jersey had another two defenses for its hate crime statute: 1) McMillan v. Pennsylvania, 477 U.S. 79 (1986), “holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence”; 2) Almendarez- Torres v. United States, 523 U.S. 224 (1998), “extend[s] McMillan’s holding to encompass factors that authorize a judge to impose a sentence beyond the maximum provided by the substantive statute under which a defendant is charged.” Apprendi, 530 U.S. at 492. This was referred to as the Apprendi “puzzle” in Kyron Huigens, Solving the Apprendi Puzzle, 90 GEO. L.J. 387 (2002). Professor Huigens explained: The Apprendi puzzle is presented by two conflicting lines of Supreme Court authority, each of which has strong intuitive appeal and substantial constitutional support. On one hand, the Court has held, with only two qualifications [criminal history and defendant’s admission], that any fact that the state invokes to justify punishment must be proved beyond a reasonable doubt to a jury . . . . Specifically, the state cannot simply declare that some elements of an offense are now “sentencing factors” that need be proved only to the sentencing judge by a preponderance of the evidence. On the other hand, the Court has recognized the validity of lodging sentencing discretion in judges, as well as the prerogative of the sentencing judge to exercise discretion on any factual basis or none at all. Furthermore, the Court has recognized the validity, indeed the desirability, of the state’s making explicit the facts, standards, and procedures on which judges exercise their sentencing discretion . . . . Id. at 387. 89 Apprendi, 530 U.S. at 494 n.19 (“[W]hen the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.”). The weakness 436 CARDOZO LAW REVIEW [Vol. 27:1 other words, labeling a fact as a “sentencing factor” or an “element of an offense” is no longer significant.90 For example, the Court found that New Jersey’s hate crime enhancement, in effect, turned Apprendi’s second-degree offense into a first-degree offense.91 The Court characterized this as “‘a tail which wags the dog of the substantive offense.’”92 B. Ring v. Arizona: Apprendi in Capital Cases Two years later, the Court applied the Apprendi principle to capital cases and held, in Ring v. Arizona, that Arizona’s first-degree murder statute violated the Sixth Amendment by allowing the judge alone to find aggravating factors for the imposition of the death penalty.93 Ring and his co-felon, Greenham, while committing an armed robbery of an armored van, shot the driver to death.94 At trial, the jury convicted Ring of felony murder95 that was not premeditated.96 Under of this principle is that the state legislature could simply revise the criminal code and increase the statutory maximum with mitigating factors that would reduce sentences. See id. at 406. Instead, Professor Huigens proposed that the Court should abandon the terminology of “culpability, aggravation, mitigation, and affirmative defense” and “employ the more sophisticated terminology of a coherent theory of punishment and speak in terms of wrongdoing, fault, eligibility, and proportionality.” Id. at 459. 90 See Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1469 (2001) (“In its recent decision in Apprendi v. New Jersey, the Court has put to rest one aspect of this ongoing battle about the significance of labels . . . .”); Stephanie B. Stewart, Apprendi v. New Jersey: Protecting the Constitutional Rights of Criminals at Sentencing, 49 KAN. L. REV. 1193, 1202 (2001) (“The Court therefore turned its attentions away from the well-documented controversy between ‘elements’ and ‘sentencing factors’ . . . and focused on the more relevant question of effect . . . .”). 91 Stewart, supra note 90, at 1202; see N.J. STAT. ANN. § 2C:43-6(a)(1) (1999). 92 Apprendi, 530 U.S. at 495 (quoting McMillan v. Pennsylvania, 477 U.S. 79 (1986)); see Robert S. Lewis, Note, Preventing the Tail From Wagging the Dog: Why Apprendi’s Bark is Worse Than Its Bite, 52 CASE W. RES. L. REV. 599 (2001) (discussing Apprendi’s impact on federal drug statutes). 93 Ring v. Arizona, 536 U.S. 584, 588 (2002). Some commentators argue that Ring does not mean that the jury must make the final determination on the death penalty. See, e.g., Nathan A. Forrester, Two Views on the Impact of Ring v. Arizona on Capital Sentencing: Judge Versus Jury: The Continuing Validity of Alabama’s Capital Sentencing Regime After Ring v. Arizona, 54 ALA. L. REV. 1157 (2003) (stating that the trial court could still make the final decision whether to impose the death penalty if the jury finds enough facts that qualify the defendant for capital punishment). 94 Ring, 536 U.S. at 589. 95 See ARIZ. REV. STAT. ANN. §§ 13-1105(A) and (B) (2001), which provide: A person commits first degree murder if . . . acting either alone or with one or more other persons the person commits or attempts to commit . . . [one of several enumerated felonies] . . . and in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person . . . . Homicide, as prescribed in [this provision] requires no specific mental state other than what is required for the commission of any of the enumerated felonies. Id. 2005] IS BLAKELY RETROACTIVE? 437 Arizona law, the maximum penalty for felony murder without further factual findings was life imprisonment.97 The State’s first-degree murder statute, however, allowed the court to find the existence of aggravating or mitigating circumstances that could affect sentencing.98 The judge could sentence Ring to death, but only if at least one aggravating circumstance existed and no substantial mitigating circumstance existed.99 Based on Greenham’s testimony that Ring was the leader of the robbery and that he shot the driver, the court found two aggravating circumstances, pecuniary gain and depravity, and sentenced Ring to death.100 On appeal, Ring argued that the Sixth Amendment guaranteed him the right to have a jury find the two aggravating circumstances beyond a reasonable doubt.101 In deciding Ring’s constitutional claim, the Arizona Supreme Court relied on the United States Supreme Court decision of Walton v. Arizona,102 which had previously upheld Arizona’s sentencing scheme.103 The Apprendi majority reconcided Walton by recognizing that the Arizona law authorized death as the maximum sentence for first-degree murder.104 In other words, the Apprendi majority believed that a judge could find aggravating factors and impose a death sentence in Arizona. Although recognizing that Apprendi raised questions as to the continuing validity of Walton, the State’s highest court felt that it was bound to apply Walton and affirmed Ring’s death sentence.105 96 Ring, 536 U.S. at 591. The Arizona Supreme Court attributed this jury finding to the lack of evidence at trial that showed Ring “was a major participant in the armed robbery or that he actually murdered [the driver].” State v. Ring, 25 P.3d 1139, 1152 (Ariz. 2001). 97 Ring, 536 U.S. at 592; see ARIZ. REV. STAT. ANN. § 13-1105(C) (2001). Section 13- 1105(C) does authorize the death penalty for first-degree murder, but references section 13- 703(C). See infra note 110. 98 Ring, 536 U.S. at 592; see ARIZ. REV. STAT. ANN. § 13-703(C) (2001) (stating that the judge should “conduct a separate sentencing hearing to determine the existence or nonexistence of [certain enumerated] circumstances . . . for the purpose of determining the sentence to be imposed.”). 99 See id. 100 Ring, 536 U.S. at 594-96. The trial judge also found a non-statutory mitigating factor of minimal criminal record which was not substantial enough to outweigh the aggravating factors. Id. 101 The Fifth Amendment was not raised as an issue because the state statute already required that the judge find the factors beyond a reasonable doubt. 102 497 U.S. 639 (1990). 103 Id. at 647-49. The Court relied on the fact that it had previously upheld Florida’s death sentencing scheme, which was similar to New Jersey’s. The Court also found support in Cabana v. Bullock, 474 U.S. 376 (1986), which held that the Constitution allowed an appellate court to be the first to find that the defendant “killed, attempted to kill, or intended to kill.” Id. at 385. 104 Ring, 536 U.S. at 603. In contrast, under New Jersey law, a second-degree offense carries a maximum penalty of ten years, not twelve years imposed by the judge in Apprendi. See supra Part II.A. 105 Ring, 536 U.S. at 595-96. The Arizona Supreme Court found that the evidence was insufficient to support the trial judge’s finding of depravity but nonetheless upheld the death 438 CARDOZO LAW REVIEW [Vol. 27:1 On appeal, the Supreme Court recognized that it could not reconcile Walton’s holding with Apprendi’s reasoning and explicitly overruled that part of Walton.106 Justice Ginsburg emphasized that Arizona’s first-degree murder statute required the finding of aggravating factors for imposing the death penalty on Ring,107 which fell squarely within the Apprendi rule that a jury must make such a finding beyond a reasonable doubt.108 Ultimately, the majority found that Arizona’s aggravating circumstances are “the functional equivalent of an element of a greater offense” and held that the scheme violated the Sixth Amendment.109 C. Blakely v. Washington: Redefining “Statutory Maximum” If the statutory maximum the Arizona court could impose on Ring was life imprisonment without further factual finding by the jury because Arizona’s first-degree murder statute so required,110 then the Court went a step further in Blakely v. Washington and made it clear that the jury’s verdict is the sole basis for assessing the “statutory maximum” the judge may impose on the defendant.111 In Blakely, the defendant abducted his wife with a knife and a shotgun after she filed for divorce.112 Blakely pled guilty to a second- degree kidnapping with domestic violence and use of a firearm after he admitted such facts.113 He did not admit any other relevant facts.114 sentence based on pecuniary gain alone. Id. 106 Id. at 608. The dissent also recognized the irreconcilability but would overrule Apprendi instead. See id. at 619. 107 Id. at 592 (“Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made.”). Therefore, the Apprendi majority incorrectly characterized Arizona’s death sentencing scheme. Id. at 603. 108 Id. at 588. See also Bryan A. Stevenson, Two Viewson the Impact of Ring v. Arizona on Capital Sentencing: The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing, 54 ALA. L. REV. 1091, 1111 (2003). For a discussion of whether the Sixth Amendment requires the jury to make the ultimate determination on the death sentence, see id. at 1153 (stating that “the capital sentencing judgment must be entrusted to a jury, not a judge”). 109 Ring, 536 U.S. at 608. For a helpful discussion of the effect of the Court’s Sixth Amendment jurisprudence on the constitutionality of guideline-based sentencing schemes like the United States Sentencing Guidelines, see Note, The Unconstitutionality of Determinate Sentencing in Light of the Supreme Court’s “Elements” Jurisprudence, 117 HARV. L. REV. 1236 (2004). 110 See supra note 97. 111 Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”). For a detailed discussion of the case, see Sixth Amendment—State Sentencing Guidelines, 118 HARV. L. REV. 333 (2004). 112 Blakely, 124 S. Ct. at 2534. 113 Id. at 2534-35; see WASH. REV. CODE ANN. §§ 9A.40.030(1), 10.99.020(3)(p), 9.94A.125 (2000). Blakely also admitted to second-degree assault with domestic violence and received a 2005] IS BLAKELY RETROACTIVE? 439 Under Washington law, second-degree kidnapping is a class B felony that carries a maximum penalty of ten years.115 Washington’s Sentencing Reform Act (“the Act”) limited Blakely’s second-degree kidnapping to a standard range of forty-nine to fifty-three months.116 The Act, however, allowed a judge to increase the sentence above the standard range if there existed compelling reasons to justify an exceptional sentence,117 but only if the judge considered factors other than those used by the legislature in calculating the standard range sentence.118 The State recommended a sentence within the standard range. The judge, however, rejected this recommendation and imposed a ninety- month sentence based on his finding that Blakely committed the crime with “deliberate cruelty.”119 Blakely appealed and argued that Apprendi required that the State must prove the “deliberate cruelty” factor to a jury beyond a reasonable doubt.120 Because the Washington Supreme Court had previously rejected a similar challenge, the state appellate court affirmed Blakely’s sentence and the Washington Supreme Court denied review.121 The U.S. Supreme Court granted certiorari and reversed. Writing for the majority, Justice Scalia held that Washington violated Blakely’s Sixth Amendment right to a jury trial.122 Washington law made the factor “deliberate cruelty” necessary to impose the ninety-month maximum on Blakely.123 Without such a finding, the judge could not have imposed the ninety-month sentence. Under Apprendi, the defendant had to admit such factor or the jury had to find such factor beyond a reasonable doubt.124 Washington argued that the “statutory maximum” was ten years for fourteen month concurrent sentence for this charge. See Blakely, 124 S. Ct. at 2534-35; WASH. REV. CODE ANN. §§ 9A.36.021(1)(c), 10.99.020(3)(b). He did not appeal this sentence. See Blakely, 124 S. Ct. at 2534-35. 114 Blakely, 124 S. Ct. at 2535. 115 Id.; see WASH. REV. CODE ANN. §§ 9A.40.030(3), 9A.20.021(1)(b) (2000). 116 Blakely, 124 S. Ct. at 2535; see WASH. REV. CODE ANN. §9.94A.320 (2000), recodified at WASH. REV. CODE ANN. §9.94A.515 (Supp. 2004). 117 Blakely, 124 S. Ct. at 2535; see WASH. REV. CODE ANN. §9.94A.120(2) (2000), recodified at WASH. REV. CODE ANN. §9.94A.535 (Supp. 2004). 118 Blakely, 124 S. Ct. at 2535 (citing State v. Gore, 21 P.3d 262, 277 (Wash. 2001)). The Act gave a non-exclusive list of factors to justify the increase. 119 Id. 120 Id; see State v. Blakely, 47 P.3d 149, 159 (Wash. 2002). 121 Blakely, 124 S. Ct. at 2535-36; see also State v. Gore, 21 P.3d 262, 311 (Wash. 2001). 122 Blakely, 124 S. Ct. at 2538. 123 See supra note 117. 124 Blakely, 124 S. Ct. at 2536 (“Other 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.” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 440 CARDOZO LAW REVIEW [Vol. 27:1 a class B felony, not fifty-three months under the Act.125 The Blakely majority disagreed. Justice Scalia held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”126 In other words, the “statutory maximum” is “the maximum sentence a judge may impose . . . without any additional findings.”127 In Blakely’s case, the maximum sentence was fifty-three months based solely on his admission. III. BLAKELY’S RETROACTIVITY The Supreme Court has not ruled on Apprendi’s retroactivity. All federal circuits have unanimously concluded that Apprendi does not apply retroactively.128 Justice O’Connor implied in Blakely that Ring’s non-retroactivity precluded Apprendi’s retroactivity.129 However, as this Note argues, Blakely is retroactive because it did not announce a new rule, it announced a substantive rule, or it falls under Teague’s second exception. 125 Id. at 2537. 126 Id. In other words, “the Court found that the Sixth Amendment can be violated even by a sentence below what has always before been considered the statutory maximum.” Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea For Rapid Reversal of Blakely v. Washington, 41 AM. CRIM. L. REV. 217, 221 (2004). Therefore, Blakely seemed to apply to the Federal Sentencing Guidelines. Id. But see Sixth Amendment—State Sentencing Guidelines, supra note 111, at 334 (“These analyses neglect that Washington’s highest court had authoritatively interpreted the sentencing system at issue in Blakely as permitting judges to upwardly depart only on the basis of facts other than those found by the jury in reaching its verdict.”). 127 Blakely, 124 S. Ct. at 2537. 128 See Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir. 2003) (finding that Apprendi does not apply retroactively); Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003) (same); United States v. Swinton, 333 F.3d 481, 485 (3d Cir. 2003) (same); United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002) (same); Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002) (same); Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002) (same); In re Smith, 285 F.3d 6, 9 (D.C. Cir. 2002) (same); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (same); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (same); McCoy v. United States, 266 F.3d 1245, 1256-57 (11th Cir. 2001) (same); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001) (same); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000) (same). 129 Blakely, 124 S. Ct. at 2549 (“[W]e hold in [Schriro] that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review . . . .”) (internal quotation marks omitted). But see Nancy J. King & Susan R. Klein, Apres Apprendi, 12 FED. SENT. REP. 331 n.2 (“[The Apprendi rule] is properly labeled ‘watershed’, as it is bound to change the course of criminal litigation significantly, both in the near future and well into the coming decades.” (quoting O’Connor, J.)). For an argument that Apprendi falls within the “watershed” exception, see Heather Jones, Note, Apprendi v. New Jersey: A True “Watershed” Ruling, 81 TEX. L. REV. 1361 (2003) (arguing that Apprendi should fall within Teague’s “watershed” exception because otherwise it is unlikely that the Court would ever find a rule that does and therefore should rethink the Teague doctrine). 2005] IS BLAKELY RETROACTIVE? 441 A. Ring Does Not Apply Retroactively On the same day the Supreme Court decided Blakely, the Court also held in Schriro v. Summerlin130 that Ring announced a new procedural rule that does not fall within Teague’s exceptions and, therefore, does not apply retroactively.131 The Schriro court first rejected the contention that Ring announced a substantive rule.132 According to Justice Scalia, who was writing for the majority, substantive rules “alter the range of conduct or the class of persons that the law punishes.”133 In contrast, procedural rules “regulate only the manner of determining the defendant’s culpability.”134 Because the Ring rule only requires the jury, not the judge, to find aggravating factors necessary for the imposition of the death penalty, it altered the range of methods of finding aggravating factors rather than the range of conduct Arizona’s death penalty statute punished.135 Therefore, he concludes that the Ring rule is procedural.136 Justice Scalia then went on to find that the Ring rule does not fall within Teague’s “watershed” exception, with which the dissent disagreed.137 130 Schriro v. Summerlin, 124 S. Ct. 2519 (2004). 131 Id. at 2526-27 (2004). In determining that Ring announced a new rule, the Court did not provide its independent analysis because both the lower state and circuit courts reached such a conclusion. Id. at 2523. The majority went on to conclude that the Ring rule is procedural and does not fall under either Teague exception. Id. at 2523-27. For a discussion of why Ring should have been retroactive because it redefined the elements of the death penalty, see Ethan Isaac Jacobs, Note, Is Ring Retroactive?, 103 COLUM. L. REV. 1805 (2003). 132 Schriro, 124 S. Ct. at 2523. 133 Id. (quoting Bousley v. United States, 523 U.S. 614, 620-21 (1998) and Saffle v. Parks, 494 U.S. 484, 495 (1990)). 134 Id. (quoting Bousley, 523 U.S. at 620). 135 Id. at 2523-24 (emphasis added). As to the argument that the Ring rule modified the element of the Arizona death penalty statute, Justice Scalia disagreed: [T]he range of conduct punished by death in Arizona was the same before Ring as after. Ring held that, because Arizona’s statutory aggravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements. This Court’s holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court’s making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive. Id. at 2524. 136 Schriro, 124 S. Ct. at 2523. 137 See id. at 2524 (“Respondent argues in the alterative that Ring falls under the retroactivity [“watershed”] exception . . . .); id. at 2527 (Breyer, J., dissenting) (“In my view, [Ring’s] holding amounts to a ‘watershed’ procedural ruling . . . .”). The Court did not consider whether the Ring rule falls within Teague’s first exception because rules under this exception should be “more accurately characterized as substantive rules not subject to bar.” Id. at 2523 n.4. For arguments that the Ring rule should fall within Teague’s “watershed” exception, see Sarah C.S. McLaren, Comment, Was Death Different Then Than It Is Now? The Opportunity Presented to the Supreme Court by Summerlin v. Stewart, 88 MINN. L. REV. 1731 (2004). 442 CARDOZO LAW REVIEW [Vol. 27:1 To fall within Teague’s “watershed” exception, the rule has to meet two requirements: (1) it has to be essential to the fairness of criminal proceedings (the “fairness requirement”); and (2) its absence would seriously diminish the accuracy of determining innocence or guilt (the “accuracy requirement”).138 In providing guidance on what rules may fall within this “watershed” exception, the Court has repeatedly referred to the right to counsel.139 Such a right is essential to the fundamental fairness of a criminal proceeding and is sweeping in nature because it affects all felony cases.140 The majority and the dissent, while agreeing that the Ring rule implicates fundamental fairness, disagreed as to whether it seriously diminished the accuracy of criminal proceedings.141 Writing for the majority, Justice Scalia emphasized that the relevant question is not whether “the Framers believed that juries are more accurate factfinders” or they “actually are more accurate factfinders,” but “whether judicial factfinding so seriously diminishes accuracy that there is an impermissibly large risk of punishing conduct that the law does not reach.”142 In Justice Scalia’s view, there exists a counterargument to any argument that juries are more accurate factfinders.143 Writing for the dissent, Justice Breyer reasoned that juries are more accurate factfinders because they could better apply those aggravating factors based on community values.144 Nonetheless, Justice Scalia concluded that judicial factfinding does not present a serious risk when reasonable minds (like the majority and dissent here) disagree on whether juries are more accurate factfinders.145 Therefore, according to Justice Scalia, 138 Teague v. Lane, 489 U.S. 288, 312-13 (1989). 139 Gideon v. Wainwright, 372 U.S. 335, 339-45 (1963). Previously, in Betts v. Brady, 316 U.S. 455 (1942), the Court had held that the Constitution does not guarantee the defendant’s right to counsel in a trial for robbery in a state court. In Gideon, the Court recognized that the Constitution guarantees the right to counsel in every criminal case in state or federal court and overruled Betts. Gideon, 372 U.S. at 345. 140 Beard v. Banks, 124 S. Ct. 2504, 2514 (2004); see also Johnson v. Zerbst, 304 U.S. 458, 462 (1938) (“[The right to counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty . . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’”). 141 Banks, 124 S. Ct. at 2527 (Breyer, J., dissenting) (“The majority does not deny that Ring meets the first criterion, that its holding is ‘implicit in the concept of ordered liberty.’”). 142 Id. at 2525 (internal quotation marks omitted). 143 Id. (“[F]or every argument why juries are more accurate factfinders, there is another why they are less accurate.”). For example, juries have the “tendency to become confused over legal standards and to be influenced by emotion or philosophical predisposition.” Id. 144 Id. at 2528 (Breyer, J., dissenting) (“The leading single aggravator charged in Arizona, for example, requires the factfinder to decide whether the crime was committed in an ‘especially heinous, cruel, or depraved manner.’ . . . [These words] require reference to community-based standards, standards that incorporate values. . . . A jury is better equipped than a judge to identify and to apply those standards accurately.”). 145 Id. at 2525. For an argument that the Court should have focused on “how juries more 2005] IS BLAKELY RETROACTIVE? 443 Ring does not meet the accuracy requirement and does not fall within the “watershed” exception. B. Blakely Applies Retroactively on Collateral Review Despite the unlikelihood of Apprendi being retroactive and the fact that Ring is non-retroactive, this Note contends that Blakely nonetheless applies retroactively on collateral review, based on three different theories: (1) Blakely did not announce a new rule; (2) Blakely announced a substantive rule, and (3) Blakely falls within Teague’s “watershed” exception. 1. Blakely Did Not Announce a New Rule Whether Blakely announced a new rule or not depends on the answers to two questions: (1) what the definition of “new rule”146 is; and (2) what Blakely’s holding is. The term “new rule” for Teague purposes is not at all self- defining.147 There have been perplexing shifts148 in the Court’s definition of “new rules,” and the “confusion” originated with Teague.149 In Teague, the plurality opinion defined “new rule” as one that “breaks new ground or imposes a new obligation,” or one that is “not dictated by precedent.”150 These two definitions of “new rule” in accurately reflect the moral voice of the community in capital sentencing proceedings,” see Recent Case, Criminal Procedure—Habeas Corpus—Ninth Circuit Holds That the Supreme Court’s Decision in Ring v. Arizona Applies Retroactively to Cases on Habeas Corpus Review, 117 HARV. L. REV. 1291, 1296 (2004) (“This type of ‘procedural accuracy’ enables Ring to apply retroactively by placing it within the second exception to Teague and honors the Supreme Court’s continued insistence that a capital sentence should reflect the collective moral judgment of the community.”). 146 For a detailed discussion of “new rule” for Teague purposes, see 2 LIEBMAN & HERTZ, supra note 24, § 25.5. 147 Professor Liebman explained: One can argue, for example, that there are almost no such things as ‘‘new rules’’ of judge-made law in a system that distinguishes the legislative function from the judicial function and subjects the latter to the principle of stare decisis. On the other hand, one might argue that almost every decision is ‘‘new’’ inasmuch as almost every decision extends preexisting rules to one degree or another simply by applying them to new facts. 2 id. 148 See 2 id. § 25.2. 149 2 id. § 25.5. 150 Teague v. Lane, 489 U.S. 288, 301 (1989) (“[A] case announces a new rule  when it breaks new ground or imposes a new obligation on the States or the Federal Government . . . [or] . . .  if the result was not dictated by precedent existing at the time the defendant’s conviction 444 CARDOZO LAW REVIEW [Vol. 27:1 Teague correspond to two ends of the spectrum of possible “new rule” definitions.151 On one end, “new ground” and “new obligation” correspond to “rare overrulings” or “announcements of rules to govern newly arisen procedural innovations.”152 On the other end, a rule not dictated by any precedent corresponds to “even workaday applications of prior rules to different fact situations.”153 The former is a narrow definition of “new rule” and the latter a broad definition.154 The Court’s recent formation of “new rule” in Beard v. Banks suggests that a rule is not new if the then-existing precedent compelled or mandated the rule.155 In Banks, the Court found new a rule that invalidated any capital sentencing schemes that prevented the jury from considering mitigating factors the jury had not found unanimously.156 Justice Thomas explained that the precedent existing157 before the Court announced this rule focused only on the “obstructions to the sentencer’s ability to consider mitigating evidence,” while this rule shifted the focus to individual jurors.158 Reasonable jurists would have disagreed on whether the precedent compelled this rule.159 Therefore, as Justice Thomas concluded, the precedent then existing supported but did not mandate this rule.160 Applying Banks’ definition of “new rule,” Blakely announced a became final.”). 151 See 2 LIEBMAN & HERTZ, supra note 24, § 25.5. Professor Liebman characterizes these two definitions as “conflicting.” 2 id. 152 See 2 id. An example of a new rule that constitutes a rare overruling is Ford v. Wainwright, 477 U.S. 399 (1986) (overruling Solesbee v. Balkom, 339 U.S. 9 (1950), which did not recognize a prisoner’s Eighth Amendment right to have a judicial determination of his sanity). An example of a rule to “govern newly arisen procedural innovations” is Rock v. Arkansas, 483 U.S. 44 (1987) (holding that the Arkansas Supreme Court violated the petitioner’s constitutional right to be heard and testify by excluding the petitioner’s hypnotically refreshed testimony). See Teague, 489 U.S. at 301; 2 LIEBMAN & HERTZ, supra note 24, § 25.5. 153 2 LIEBMAN & HERTZ, supra note 24, § 25.5. 154 See 2 id. 155 Beard v. Banks, 124 S. Ct. 2504, 2510 (2004) (“[The court] must ascertain the ‘legal landscape as it then existed,’ and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually ‘new.’”) (internal quotations omitted). 156 Id. at 2508. This rule was announced in Mills v. Maryland, 486 U.S. 367 (1988). 157 See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (holding that “the Eighth and Fourteenth Amendments require that the sentencer . . . [consider] as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”); Eddings v. Oklahoma, 455 U.S. 104, 113-15 (1982) (holding that “the limitations placed by [the] courts upon the mitigating evidence they would consider violated the rule in Lockett”). 158 Banks, 124 S. Ct. at 2512 (“In Mills, the Court noted that its previous cases did not depend on the source of the potential barrier to the sentencer’s ability to consider mitigating evidence. The Court then asserted that ‘the same [rule must apply] with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance.’”) (internal citations omitted). 159 Id. at 2512. To justify this, Justice Thomas pointed out that in Mills four dissenting justices disagreed that Lockett compelled Mills. Id. 160 Id. 2005] IS BLAKELY RETROACTIVE? 445 new rule if Apprendi mandated the holding in Blakely. Whether Apprendi mandated Blakely in turn depends on what Blakely’s holding is. There are two possible readings of the Blakely decision.161 Under the narrow reading, Blakely involved two distinct statutory maximum sentences: fifty-three months for a second-degree kidnapping with a firearm and ten years for a class B felony.162 Based solely on the facts admitted by Blakely, the statutory maximum was fifty-three months.163 This fit squarely within Apprendi. Apprendi also involved two distinct statutory maximums: ten years for a second-degree unlawful possession of a firearm and twenty years for a first-degree unlawful possession of a firearm with a racial purpose.164 The judge in Apprendi, by finding the racial purpose with a preponderance of the evidence, in effect turned Apprendi’s second-degree offense into a first-degree offense.165 Similarly, the judge in Blakely, by finding “deliberate cruelty” by a preponderance of the evidence, turned Blakely’s second-degree kidnapping with a firearm into a class B felony. Under this narrow reading, Blakely simply applied the Apprendi rule.166 The Blakely opinion itself supports such an interpretation. Writing for the majority, Justice Scalia began his analysis in Blakely by stating that “[t]his case requires us to apply the rule we expressed in [Apprendi].”167 Writing for the dissent, Justice O’Connor also recognized the reading that Blakely simply applied the Apprendi principle.168 This is no surprise since Justice O’Connor had anticipated the holding in Blakely when the Court first decided Apprendi.169 161 See generally Reply Brief for the United States, United States v. Booker & United States v. Fanfan, 125 S. Ct. 738 (2005) (nos. 04-104 & 04-105) [hereinafter SG Brief]. . 162 See supra notes 115, 116. 163 See supra note 116. 164 See supra notes 79, 81. 165 Apprendi v. New Jersey, 530 U.S. 466 (2000) (“Indeed, the effect of New Jersey’s sentencing ‘enhancement’ here is unquestionably to turn a second-degree offense into a first- degree offense, under the State’s own criminal code.”). 166 See also SG Brief, supra note 161, at 18. 167 Blakely v. Washington, 124 S. Ct 2536 (2004). 168 Id. at 2549 (O’Connor, J., dissenting) (“[A]ll criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.”). 169 As Justice O’Connor stated in Apprendi: The actual principle underlying the Court’s decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt . . . . The principle thus would apply not only to schemes like New Jersey’s, under which a factual determination exporsey’s, [sic] defendant to a sentence beyond the prescribed statutory maximum, but also to all determinate-sentencing schemes in which the length of a defendant’s sentence within the statutory range turns on specific factual determinations (e.g., the Federal Sentencing Guidelines). 446 CARDOZO LAW REVIEW [Vol. 27:1 The Supreme Court’s recent decision in United States v. Booker170 also supports that Blakely only followed the principle announced in Apprendi. Writing for the majority on the issue of Blakely’s application to the Federal Sentencing Guidelines, Justice Stevens stated that Apprendi and its progeny made clear the construction of the Sixth Amendment in Blakely.171 Dissenting, Justice Breyer emphasized that “Blakely purports to follow, not to extend Apprendi.”172 Under such a reading of Blakely, all reasonable jurists, like the majority and dissent in Blakely, would agree that Apprendi compelled and mandated Blakely and therefore Blakely did not announce a new rule.173 At least one federal court has interpreted such a reading to mean that Apprendi and its progeny dictated Blakely.174 Blakely contains language that also suggests a broader reading: “the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”175 Such language suggests a rule that the jury must find any fact that not only increases the statutory maximum as required by Apprendi, but “any fact that increases the upper bound on a judge’s sentencing discretion.”176 In Blakely’s case, this means that there existed only one statutory maximum based on the facts admitted: fifty-three months for the second-degree kidnapping with a firearm. Under such a broad reading, Blakely seemed to have redefined “statutory maximum.”177 This, however, does not mean that Blakely extended Apprendi. At the outset, such a broad reading was not necessary to decide Blakely because Washington’s two distinct Apprendi, 530 U.S. at 543-44 (O’Connor, J., dissenting). 170 125 S. Ct. 738 (2005). In this case, the Court, first in a majority opinion authored by Justice Stevens, held that Blakley’s construction of the Sixth Amendment applied to the United States Sentencing Guidelines. Id. at 746. Then in a majority opinion by Justice Breyer, the Court held that two provisions of the Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3553(b)(1), 3742(e)) must be invalidated. Id. at 756. 171 Id. at 749 (“For reasons explained in Jones, Apprendi, and Ring, the requirements of the Sixth Amendment were clear.”); id. (“[In Blakely,] our precedents . . . make clear ‘that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’” (quoting Blakely, 24 S. Ct. at 2537)). 172 Id. at 806 (Breyer, J., dissenting). 173 Justice O’Connor and other dissenting justices in Blakely did not differ as to whether Apprendi mandated Blakely, but rather disagreed with the majority that the Sixth Amendment dictated the Apprendi rule. See generally Blakely, 124 S. Ct. 2531 (2004) (O’Connor, Kennedy, Breyer opinions). 174 See United States v. Shamblin, 323 F. Supp. 2d 757, 768 (S.D. W. Va. 2004) (“The Blakely decision is based on law in existence at the time of the defendant’s sentencing. As noted by the Supreme Court, the decision flowed naturally from Apprendi and its progeny.”). 175 Blakely, 124 S. Ct. at 2537; see also SG Brief, supra note 161, at 19. 176 Id. (quoting Blakely, 124 S. Ct. at 2546 (O’Connor, J., dissenting)). 177 United States v. Booker, 375 F.3d 508, 514 (7th Cir. 2004). 2005] IS BLAKELY RETROACTIVE? 447 “statutory maximum” sentences required the Court to find the applicable one.178 That is exactly what the Court did in Blakely. It found that the applicable statutory maximum was fifty-three months, not ten years.179 More importantly, the majority opinion in Blakely suggests that even such a broad reading only applied the Apprendi principle. Justice Scalia stated that the Court’s precedents (Apprendi and Ring) “make clear” that the jury verdict or the defendant’s admission provides the sole basis for determining the “statutory maximum.”180 Such commitment reflects both “respect for longstanding precedent” and “the need to give intelligible content to the right of jury trial.”181 Apprendi achieves this goal “by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict.”182 No doubt, at least to the majority in Blakely, Apprendi mandated this broad reading. Whether one reads Blakely narrowly or broadly, Blakely only applied the Apprendi principle, or Apprendi compelled Blakely. As a result, Blakely did not announce a new rule and should apply retroactively to all cases which were not final when the Court decided Apprendi in 2000.183 178 SG Brief, supra note 161, at 19. Dissenting in Booker, Judge Easterbrook explained: Blakely arose from a need to designate one of two statutes as the “statutory maximum”. Washington called its statutes “sentencing guidelines,” but names do not change facts. Nonetheless, the reading my colleagues give to this passage is that it does not matter whether the maximum is statutory; any legal rule, of any source (statute, regulation, guideline) that affects a sentence must go to a jury. Certainly Blakely does not hold that; it could not “hold” that given that it dealt with statutes exclusively. Booker, 375 F.3d at 518 (Easterbrook, J., dissenting). 179 See supra notes 125, 126. 180 Blakely, 124 S. Ct. at 2537 (emphasis added); see also People v. Johnson, No. 03CA2339, 2005 Colo. App. LEXIS 511, at *3 (Colo. Ct. App. Apr. 7, 2005). 181 Blakely, 124 S. Ct. at 2538. 182 Id. at 2539 183 In Blakely, Justice O’Connor in her dissent recognized that Ring’s non-retroactivity does not preclude Blakely’s retroactivity based on the theory that Blakely only applied Apprendi and did not announce a new rule. Blakely, 124 S. Ct. at 2549 (O’Connor, J., dissenting) (“[D]espite the fact that we hold in [Schriro] that Ring . . . does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.”) (emphasis added). 448 CARDOZO LAW REVIEW [Vol. 27:1 2. Blakely Announced a Substantive Rule New substantive rules are generally retroactive.184 There are two types of substantive constitutional rules: one interprets the terms of a criminal statute and in doing so narrows the scope of such a statute; the other changes the range of conduct or the class of persons that the law punishes.185 An example of the first type of substantive rule is one that interpreted “use” of a firearm in a federal statute to mean active employment as opposed to mere possession.186 Such a rule is retroactive because not applying the rule retroactively would present an impermissibly large risk that a defendant may be convicted of an act that the law does not punish.187 An example of the second type is the rule that the Eighth Amendment prohibits the states from imposing the death penalty on the insane.188 The Constitution guarantees such a rule regardless of the procedures and therefore it is substantive and applies retroactively.189 In contrast, new procedural rules generally do not apply 184 Schriro v. Summerlin, 124 S. Ct. 2519, 2522-23 (2004) (“Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.”) (internal quotation marks omitted). 185 Id; see also Bousley v. United States, 523 U.S. 614, 620-21 (1998); Saffle v. Parks, 494 U.S. 484, 494-95 (1990); Teague v. Lane, 489 U.S. 288, 311 (1989). 186 Bailey v. United States, 516 U.S. 137, 167 (1995). 187 Bousley, 523 U.S. at 620-21. 188 Ford v. Wainwright, 477 U.S. 399, 410 (1986) (“Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.”). 189 See Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court explained: Under the first exception articulated by Justice Harlan [in Teague], a new rule will be retroactive if it places “‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’” Although Teague read this exception as focusing solely on new rules according constitutional protection to an actor’s primary conduct, Justice Harlan did speak in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed. This Court subsequently held that the Eighth Amendment, as a substantive matter, prohibits imposing the death penalty on a certain class of defendants because of their status . . . . In our view, a new rule placing a certain class of individuals beyond the State’s power to punish by death is analogous to a new rule placing certain conduct beyond the State’s power to punish at all. In both cases, the Constitution itself deprives the State of the power to impose a certain penalty, and the finality and comity concerns underlying Justice Harlan’s view of retroactivity have little force . . . . Therefore, the first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Id. at 329-30 (internal citations omitted). 2005] IS BLAKELY RETROACTIVE? 449 retroactively.190 A rule is procedural if it regulates only the manner of determining whether the defendant is guilty.191 Like the rule that interpreted the “use” of a firearm in a federal statute to mean active employment as opposed to mere possession, Blakely’s rule is substantive because it narrows the scope of Washington’s criminal statute by redefining the statutory maximum for Apprendi purposes. Before Blakely, a judge was able to find additional facts by a preponderance of the evidence to increase a defendant’s sentence above the maximum warranted without the additional facts.192 Blakely, however, limits the judge’s sentencing discretion within the range authorized only by the facts admitted by the defendant or found by the jury.193 In effect, only one statutory maximum is available to the judge based on the facts in the jury’s verdict instead of two in Ring or three in Blakely.194 Blakely’s rule is substantive also because it alters the class of persons the law punishes. Besides the Sixth Amendment guarantee of the right to a jury trial, Blakely also addressed the Fifth Amendment requirement of proof beyond a reasonable doubt.195 Logically, if a jury finds a fact by a preponderance of the evidence, it does not follow that the same jury would find the same fact beyond a reasonable doubt. On the other hand, if a jury finds a fact beyond a reasonable doubt, it must follow that the same jury would find the same fact by a preponderance of the evidence. Consequently, in the same criminal system, the class of persons that would be found guilty under the requirement of beyond a reasonable doubt is only a subclass of the class of persons that would be found guilty under the requirement of preponderance of the evidence. In effect, the change in the standard of proving guilt shrinks the class of punishable defendants. Because the Blakely rule not only narrows the scope of Washington’s criminal statute, but also shrinks the class of persons that the law punishes, Blakely announced a substantive, not procedural, rule. 190 Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004). 191 Id. (“[Procedural rules] merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.”). 192 For example in Blakely, the trial judge found by a preponderance of evidence that Blakely committed the kidnapping with “deliberate cruelty” and imposed a sentence of ninety months instead of the maximum fifty-three months solely based on Blakely’s admission. Blakely v. Washington, 124 S. Ct. 2531, 2540 (2004). See supra Part II.C. 193 Blakely, 124 S. Ct. at 2537 (“[The] ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”). 194 See SG Brief, supra note 161, at 18. For example, in Apprendi the maximum sentence a judge could impose on the defendant was ten years if the defendant was found to unlawfully possess a firearm but twenty years if the defendant was found to commit the crime with a racial purpose. See supra Part II.A. 195 See State v. Blakely, 47 P.3d 149, 159 (Wash. Ct. App. 2002) (“[Th]e facts supporting the exceptional sentence here did not have to be . . . proved beyond a reasonable doubt.”). 450 CARDOZO LAW REVIEW [Vol. 27:1 3. Blakely’s Rule Falls Within Teague’s Second Exception Blakely requires that the jury must find every fact beyond a reasonable doubt.196 This Fifth Amendment requirement makes the Blakely rule fall within Teague’s second exception of “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”197 Historically, the Court would have applied this beyond-reasonable- doubt standard retroactively. In In re Winship,198 the Court interpreted the Due Process Clause of the Fifth Amendment199 to require proof beyond a reasonable doubt of every fact that is an element of a crime.200 In Apprendi and Blakely, the Court extended this Winship requirement to every fact (other than a prior conviction) that increases the sentence above the statutory maximum.201 The Court later held that Winship applied retroactively on direct review.202 The language the Court adopted, “complete retroactive effect,”203 however, makes it clear that the Court would have applied Winship retroactively to cases on collateral review as well.204 Under the Court’s current Teague doctrine, a rule must meet both 196 See supra note 195. 197 Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague v. Lane, 489 U.S. 288, 311 (1989)). 198 397 U.S. 358 (1970). 199 U.S. CONST. amend. V (“No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”) (emphasis added). 200 In re Winship, 397 U.S. at 364 (1970). 201 See Elizabeth A. Olson, Rethinking Mandatory Minimums After Apprendi, 96 NW. U. L. REV. 811, 835 (2001) (“Apprendi correctly noted that due process protections of Winship extend to determinations that go not only to a defendant’s guilt or innocence, but also to the length of his sentence.”); Damien P. DeLaney, Better to Let Ten Guilty Men Live: The Presumption of Life—A Principle to Govern Capital Sentencing, 14 CAP. DEF. J. 283, 300 (2002) (“Apprendi essentially extends the reasoning of Winship to require the reasonable doubt rule to apply to sentencing in cases in which aggravating factors expand the range of available penalties.”). 202 Ivan v. New York, 407 U.S. 203 (1972) (applying Winship in finding that the juvenile defendant used a knife to take a bike from another boy upon a preponderance of evidence). 203 Id. at 205 (“[T]he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.”) (emphasis added). 204 Some commentators, however, have suggested that Ivan does not compel Apprendi’s and Blakely’s retroactivity. First, Ivan, which was decided before Teague, involved a retroactive application of In re Winship on direct appeal rather than collateral review. Second, Apprendi and Blakely brought less fundamental changes than Winship. Third, compared with the guarantee of right to counsel in Gideon which affects the entire trial and appellate process, the requirement of proof beyond reasonable doubt in Apprendi and Blakely was far less sweeping because it only affects the process of proving the additional facts that would increase the sentencing maximum. However, these concerns do not preclude Blakely’s retroactivity. See Barkow, supra note 9, at 316. 2005] IS BLAKELY RETROACTIVE? 451 the fairness requirement and the accuracy requirement205 to fall within Teague’s “watershed” exception.206 The Fifth Amendment requirement of proof beyond a reasonable doubt meets both of these requirements. The reasonable-doubt standard is a prime instrument for ensuring the accuracy of any criminal proceeding.207 It also implicates fundamental fairness because the accused would face a severe disadvantage if he could be convicted and imprisoned based only on a preponderance of the evidence.208 Like the right to counsel, which is a bedrock rule essential to fundamental fairness,209 the reasonable-doubt standard is a bedrock rule vital to accurate resolution of all criminal cases.210 Therefore, Blakely falls within Teague’s “watershed” exception and applies retroactively to all cases pending on collateral review. 4. Ring’s Non-Retroactivity Does Not Preclude Blakely’s Retroactivity Arguably, the Court’s finding in Schriro that Ring announced a new rule constituted mere dicta because the issue was not squarely in front of the Court. There, the petitioner’s conviction became final before the Court decided Apprendi.211 The Court could have avoided the question whether Apprendi mandated Ring because the answer 205 In order to meet the fairness requirement, the rule must be essential to the fairness of a criminal proceeding. The accuracy requirement is met when the absence of the rule would seriously diminish the accuracy of determining innocence or guilt. See supra note 138. 206 Saffle v. Parks, 494 U.S. 484, 495 (1990) (“‘Watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” (quoting Teague v. Lane, 489 U.S. 288, 311 (1989)). 207 In re Winship, 397 U.S. 358, 363 (1970); see also Ivan, 407 U.S. at 205. (“[T]he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function . . . .”). 208 Winship, 397 U.S. at 363 (“[A] person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”) (citation omitted). 209 See Sawyer v. Smith, 497 U.S. 227, 242 (1990). (“[Gideon] altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”) (internal quotation marks omitted). 210 See Stephanos Bibas, Blakely’s Federal Aftermath, 16 FED. SENT. REP. 333, at *8 (2004) (“If any rule of criminal procedure is a bedrock rule that contributes substantially to the accuracy of convictions (though not acquittals), proof beyond a reasonable doubt is such a rule.”); see also Winship, 397 U.S. at 358 (“The standard provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.”) (internal quotation marks omitted). 211 The defendant exhausted his state direct appeal in 1983 when the Arizona Supreme Court affirmed his death sentence. See State v. Summerlin, 675 P.2d 686 (Ariz. 1983). Apprendi was decided in 2000. 452 CARDOZO LAW REVIEW [Vol. 27:1 would have made no difference to the petitioner’s case. Further, Justice Scalia did not analyze why Ring announced a new rule since both the Ninth Circuit and the four dissenting Justices seemed to agree with the state on that issue.212 Ring’s non-retroactivity is not conclusive on Blakely’s retroactivity also because Ring differs from Blakely in several aspects. First, Ring involved a capital sentence while Blakely (like Apprendi) involved a non-capital sentence.213 The effect of the difference between capital and non-capital sentences was enough for Justice Breyer to concur with the majority in Ring while still rejecting Apprendi.214 Justice Breyer believed that “jury sentencing in capital cases is mandated by the Eighth Amendment,”215 not the Sixth Amendment principle announced in Apprendi. Under such a view, Apprendi did not mandate Ring and therefore Ring announced a new rule.216 On the other hand, Apprendi mandated the holding in Blakely, as discussed in Part III.B.1. Second, Ring overruled Walton, which had previously upheld Arizona’s capital sentencing statute involved in Ring.217 Therefore, Ring announced a new rule even under the narrow definition of “new rule.” Under such definition, a rule is new if it “breaks new ground” or “imposes a new obligation on the States.”218 By overruling Walton, Ring in effect extended the Apprendi principle to state capital sentencing schemes. On the contrary, Blakely only applied the principle announced in Apprendi, and hence did not announce a new rule. 219 Lastly, Ring concerned only the Sixth Amendment guarantee of a jury trial while Blakely also concerned the Fifth Amendment requirement of proof beyond a reasonable doubt.220 As discussed in Part III.B.3, this reasonable-doubt standard requirement qualifies Blakely under Teague’s second exception and therefore Teague does not bar Blakely’s retroactivity. 212 Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004). The disagreement between the majority and the dissent is whether the Ring rule falls under Teague’s second exception. Id. at 2527; see also supra Part III.C. 213 See supra Part II. 214 See Ring v. Arizona, 536 U.S. 584, 613-19 (2002) (Breyer, J., concurring); Blakely v. Washington, 124 S. Ct. 2531, 2551-62 (2004) (Breyer, J., dissenting). 215 Ring, 536 U.S. at 614. 216 Under the Court’s new formation of “new rule,” a rule is new if the existing precedent did not mandate such a rule. See supra note 155. 217 See supra note 106. 218 See supra notes 150, 152. 219 See supra Part III.B.1. 220 See Schriro v. Summerlin, 124 S. Ct. 2519, 2522 n.1 (2004) (“Because Arizona law already required aggravating factors to be proved beyond a reasonable doubt, that aspect of Apprendi was not at issue.”) (citation omitted); State v. Blakely, 47 P.3d 149, 159 (Wash. Ct. App. 2002) (“[Th]e facts supporting the exceptional sentence here did not have to be . . . proved beyond a reasonable doubt.”). 2005] IS BLAKELY RETROACTIVE? 453 C. On What Basis Should the Court Hold Blakely Retroactive? Following the analysis above, Blakely is retroactive whether the Court adopts the narrow or the broad reading. Whether one or both defendants in the opening hypothetical can take advantage of the Blakely rule depends on the answer to the following question: On what basis will the Court most likely hold Blakely retroactive? Is Blakely not a new rule, is it a substantive rule, or is it within the “watershed” exception? Two approaches to this question present themselves: a legal approach and a practical approach. From a legal point of view, the Court should hold that Blakely did not announce a new rule but only applied the principle in Apprendi. There exist weaknesses in the argument that Blakely’s rule is substantive. Blakely, by interpreting the statutory maximum, only affects a defendant’s sentence.221 Justice Scalia made this clear in Schriro, distinguishing the Court’s making a fact essential to the death penalty from the Court’s making a fact subject to proof to a jury once the state has made the fact essential to the death penalty.222 In his view, the former is substantive and the latter procedural.223 Furthermore, the Fifth Amendment requirement of proof beyond a reasonable doubt that is essential to this argument was also present in Apprendi. Nevertheless, all federal circuits have concluded that Apprendi is not retroactive. In light of these considerations, it is unlikely that the Court will find the Blakely rule substantive. As to the argument that Blakely’s rule falls within the “watershed” exception, this argument is also unlikely to prevail. Not because it lacks merit; rather, the Court’s reluctance to expand this narrow exception seems to preclude Blakely’s retroactivity under this theory.224 221 In comparison, Bailey, by interpreting an element of the offense differently, affects a defendant’s conviction. Bailey v. United States, 516 U.S. 137 (1995). 222 Schriro, 124 S. Ct. at 2524. Justice Scalia explained: A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. But that is not what Ring did; the range of conduct punished by death in Arizona was the same before Ring as after. Ring held that, because Arizona’s statutory aggravators restricted (as a matter of state law) the class of death-eligible defendants, those aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements. This Court’s holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court’s making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive. Id. 223 Id. 224 Beard v. Banks, 124 S. Ct. 2504, 2513 (2004). Justice Thomas emphasized: We have repeatedly emphasized the limited scope of the second Teague exception, 454 CARDOZO LAW REVIEW [Vol. 27:1 From a practical point of view, the holding that Blakely only applied the Apprendi principle will limit state prisoners who can challenge their sentences under Blakely to those whose cases were not final when the Court decided Apprendi on June 24, 2000. Contrarily, both the argument that Blakely’s rule is substantive and that it falls within the “watershed” exception would open the door to thousands more state prisoners filing habeas corpus petitions in federal courts. Given the Court’s concern with states’ interest in finality and the enormous cost to both the federal and state criminal systems, the Court is unlikely to give Blakely complete retroactive effect. Under this analysis, defendant Y in the hypothetical above will be able to challenge his sentence under Blakely but defendant X will not, simply because the Court decided Apprendi in between its denial of defendant X’s certiorari and defendant Y’s certiorari. This may seem unfair since both defendants committed the same criminal act and followed the same procedures in having their sentences reviewed. A mere two days’ difference in being denied certiorari by the Supreme Court gives one defendant an opportunity to challenge his sentence that the other does not get. CONCLUSION Despite the uncertainty in Blakely’s holding, the Teague retroactivity doctrine does not bar Blakely from applying to cases on collateral review. On one hand, if Blakely’s rule is read narrowly such that it is only an application of the Apprendi principle, it did not announce a new rule and therefore is not subject to the non-retroactivity analysis. On the other hand, if Blakely’s rule is read broadly such that it “redefines ‘statutory maximum,’” it announced a substantive rule which applies retroactively. Furthermore, even if the Court holds that Blakely announced a new procedural rule subject to the Teague analysis, the Blakely rule falls within Teague’s “watershed” exception and is not barred from applying retroactively. explaining that “it is clearly meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty.” And, because any qualifying rule “would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge,” it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception. Id. See also Elizabeth A. Hunot, Comment, Yielding to the Temptation to Open Pandora’s Box: The Ninth Circuit Creates a Circuit Split and Declares Ring v. Arizona Retroactive in Summerline v. Stewart, 23 ST. LOUIS U. PUB. L. REV. 635, 665 (2004) (“Time after time, the Court has been presented with new rules that are argued to be ‘watershed rules’ within the meaning of Teague, and time after time the Court has rejected the argument.”). 2005] IS BLAKELY RETROACTIVE? 455 Taking into account both the strength of legal analysis and the practical impact, the Court should hold that Blakely did not announce a new rule, but instead applied the principle of Apprendi, making Blakely retroactive back to the day Apprendi was decided.