In re: Will C. Dean, Jr.
- Reporters:
- , ,
- Before:
- Anderson
Pursuant to
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases , on collateral review by the Supreme Court, that was previously unavailable.
In his application, Dean indicates that he wishes to raise one claim in a second or successive
In Blakely, the United States Supreme Court revisited the rule in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at 2536. The Court considered whether the sentencing procedure followed by courts in the State of Washington deprived Blakely of his “federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.” Id. at 2536. The state sentencing guidelines scheme under which Blakely was sentenced permitted sentencing judges to depart upward from a “standard” sentencing range if the judge found “substantial and compelling reasons justifying an exceptional sentence.” Id. at Wash. Rev.Code Ann. 2535 (citing § 9.94A.120(2)).
Blakely, having been charged with kidnapping his estranged wife, pleaded guilty to second-degree kidnapping, a Class B felony under Washington law that carried a ten-year statutory maximum sentence. Id. at 2535 (citing Wash. Rev.Code Ann. §~ 9A.40.030(3), 9A.20.021(1)(b)). Washington‘s Sentencing Reform Act, however, specified a “standard range” of 49 to 53 months for Blakely‘s offense of second-degree kidnapping with a firearm. Id. (citations omitted). At sentencing, the court rejected this standard range and imposed an “exceptional sentence” of 90 months imprisonment on the ground that Blakely had acted with “deliberate cruelty,” a statutorily enumerated ground for departure in domestic violence cases. Id. at 2535 (citing
On appeal, Blakely argued that the sentencing procedure deprived him of his right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. Id. The state appellate courts rejected Blakely‘s argument and affirmed. Id. at 2536. On certiorari review, the United States Supreme Court reversed in a 5-4 decision, holding that Blakely‘s enhanced sentence violated Apprendi. Id. at 2538. Notably, the Court rejected the state‘s argument that Blakely‘s case was distinguishable from Apprendi because his 90-month sentence did not exceed the 10-year statutory maximum for Class B felonies, explaining that
[o]ur 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. ... In other words, 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. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” ... and the judge exceeds his proper authority.
Id. at 2537 (emphasis in original) (citations omitted). In a footnote, the Court stressed that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Id. at 2538 n. 9. ’
No court has yet determined whether
Blakely
created a new rule of constitutional law made retroactive to cases on collateral review. For a new rule to be retroactive to cases on collateral review for purposes of authorizing a second or successive § 2255 motion or
Regardless of whether
Blakely
established a “new rule of constitutional law” within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared
Blakely
to be retroactive to cases on collateral review.
See generally Blakely,
124 S.Ct. at 2534-43;
Tyler,
533 U.S. at 662-63, 121 S.Ct. at 2482. Moreover, no combination of cases necessarily dictate retroactivity of the
Blakely
decision.
Tyler,
533 U.S. at 666, 121 S.Ct. at 2484.
Blakely
itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review.
See id.
In fact, the Supreme Court has strongly implied that
Blakely
is not to be applied retroactively. The same day the Supreme Court decided
Blakely,
the Court also issued its decision in
Schriro v. Summerlin,
— U.S. —, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), holding that
Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which extended application of
Ap-prendi
to facts increasing a defendant’s sentence from life imprisonment to death, is not retroactive to cases on collateral review.
Summerlin,
124 S.Ct. at 2526;
see also Blakely,
124 S.Ct. at 2548-49 (O’Connor, J., dissenting) (recognizing the Court’s holding in
Summerlin
“that
Ring
(and
a fortiori Apprendi)
does not apply retroactively on habeas review”);
see also McCoy v. United States,
266 F.3d 1245, 1256-58 (11th Cir.2001) (holding that
Apprendi
is not retroactive to cases on collateral review);
In re Joshua,
224 F.3d at 1283 (denying the retroactive application of
Apprendi
to permit second or successive habeas petitions). Because
Blakely,
like
Ring,
is based on an extension of
Apprendi,
Dean cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review. Accordingly, Dean’s proposed claim fails to satisfy the statutory criteria.