BLAKELY: ALERT TO PANEL

(Summer 2004 alert)
September 2005 update: click here
April 2006 Update: click here


The recent decision of the United States Supreme Court decision in Blakely v. Washington (June 24, 2004, No. 02-1632) ___542 U.S. ___ [124 S. Ct. 2531; 159 L. Ed. 2d 403; 2004 U.S. LEXIS 4573], creates responsibilities for appointed appellate counsel. Blakely held a state may impose an increased sentence on the basis of specified facts (such as California’s circumstances in aggravation) only if the defendant has been afforded, or has waived, a jury trial on those facts, and they have been proved beyond a reasonable doubt. We stress some essential points at the outset:

 

Prompt action vital: To ensure a Blakely issue is preserved and to avoid possible procedural default, Blakely should be raised at the earliest stage possible. Thus it is important that all of our present and past clients affected by the ruling receive the benefit of our prompt attention. The procedures vary according to the stage of the case, as outlined below.

 

Be alert for adverse consequences: The usual caution should be exercised in examining each case for potential risks of pursuing relief. Risks include upsetting an advantageous plea bargain and spotting and correcting unauthorized sentencing errors favoring the client. ADI can help identify and sort out these risks.

 

Cases involving a guilty plea: These cases can be complicated. They may raise factual and procedural issues and a risk of adverse consequences. Consultation with ADI and with trial counsel is very important.

 

I.        REVIEW OF CASES

 

Attorneys should review all of their cases, open or closed and trial or guilty plea, to identify all cases to which Blakely is factually applicable. If you have any doubts, ADI would be happy to consult with you. It is preferable to be over-inclusive at this point.


 

II.      PROCEDURES FOR PRE-REMITTITUR CASES

 

           A.       Pre-AOB. If you haven’t yet filed the AOB (**ADI and FDAP Web site samples available), the procedure should be straightforward: include Blakely in the brief.

 

           B.       Post-AOB, pre-opinion: File a supplement opening brief (**ADI and FDAP Web site samples available). Include with the brief a request to the presiding justice for leave to file it. (Cal. Rules of Court, rule 13(a)(4).) If the original filing was a Wende brief, ask for leave to withdraw it and file a new opening brief.

 

           C.       Post-opinion, but fewer than 30 days since the opinion was filed Footnote : Petition for rehearing (**ADI and FDAP Web site samples available). If it has been more than 15 days since the opinion, ask the presiding justice for leave to file a late petition under rule 25(b)(4). Argue, on the ground of Blakely’s recency, for an exception to the usual rule that issues may not raised for the first time in a petition for rehearing. (See Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 120-121; People v. Payne (1977) 75 Cal.App.3d 601, 605.) Footnote

 

           D.       More than 30 days since opinion filed, pre-remittitur: These cases must be taken to the California Supreme Court; the Court of Appeal has lost jurisdiction. In doing so, ask the Supreme Court to excuse failure to have raised the Blakely issue in the Court of Appeal (as normally required by rule 28(c)) on the ground Blakely was decided too recently.

 

                      1.        31-40 days since opinion filed, no petition for review yet filed: On or before the 40th day file a petition for review (**ADI and FDAP Web site samples available) raising the Blakely issue, even if it was not raised below.

 

                      2.        41-60 days since opinion filed, no petition for review yet filed: File a petition for review (**ADI and FDAP Web site samples available) raising Blakely, along with a request to the Chief Justice for relief from late filing under rule 28(e)(2). The excuse for late filing would be Blakely’s recency. Footnote

 

                      3.        Petition for review already pending, but Blakely not raised: File a supplemental petition for review raising Blakely, along with a request for leave to file it. (**ADI and FDAP Web site sample available. Note: The sample supplemental petition was successful, and review was granted. People v. Towne, S125677.)

 

           E.       Cases already in the California Supreme Court on grant of review, but Blakely not raised: It is possible to ask the Supreme Court to expand the scope of review (rule 29(b)(2)) or to remand the case to the Court of Appeal after resolution of the issue on which review was granted (if the Blakely question is not mooted by the Supreme Court decision), with instructions to permit briefing on Blakely (rule 29.3(c), (f)). If the Supreme Court opinion has already been filed and is not yet final, the request should be made by petition for rehearing (rule 29.5). Footnote


 

III.     PROCEDURES FOR POST-REMITTITUR CASES

 

IMPORTANT – Coordination with trial counsel: Consultation with trial counsel is especially important in post-remittitur situations, since neither the trial nor appellate court has active jurisdiction and both have potential writ jurisdiction. Consultation between counsel will help identify adverse consequences, make sure someone is doing something if necessary, prevent duplicative proceedings or conflicting positions in the trial and appellate courts, provide a chance to strategize about the most advantageous forum, etc. ADI will offer guidance to the panel as to these issues and as to any preferences expressed by our courts concerning the forum or procedure.

 

           A.       Retroactivity: Under Teague v. Lane (1989) 489 U.S. 288, cases for which direct review is not yet concluded when a new rule of law is decided are covered by that new rule, for purposes of federal habeas corpus relief. Cases for which no further appellate remedies are available are not covered, unless the new rule comes within certain unusual exceptions. A decision that does not change the law but merely applies existing law can be used in federal collateral proceedings. Direct review for federal purposes concludes when no further state appellate remedies are available and the time for petitioning for certiorari to the United States Supreme Court has expired. (See Beard v. Banks (June 24, 2004, No. 02-1603) ___ U.S. ___ [124 S.Ct. 2504; 159 L.Ed.2d 494; 2004 U.S. LEXIS 4572]; Caspari v. Bohlen (1994) 510 U.S. 383, 390.) Footnote

 

           B.       Cases to be flagged but not requiring action at this point, because they are no longer on “direct review” for retroactivity purposes: A state case is no longer on direct review for federal retroactivity purposes if further state appellate remedies are not available and the time for filing a petition for certiorari has expired. These cases include those in which: (a) no petition for review was filed; OR (b) more than 90 days elapsed between the time review was denied (or the case was otherwise concluded by the California Supreme Court) and the time Blakely was decided: Blakely does not apply to them unless that decision is found to be a mere application of existing law or to come within the unusual Teague exceptions. (Teague v. Lane, supra, 489 U.S. 288, 305-310.) We suggest counsel flag them but not take any action unless Blakely is found to be fully or partially retroactive to cases no longer on direct review. Footnote

 

           C.       Cases needing prompt attention because they are still on “direct review”: These include cases in which (a) a petition for review was filed AND (b) fewer than 90 days elapsed between the time review was denied (or the case was otherwise concluded by the California Supreme Court) and the time Blakely was decided. Blakely applies to these cases, and so prompt consideration is essential. (Teague v. Lane, supra, 489 U.S. at pp. 303-305.) Footnote

 

           D.       Remedies for post-remittitur cases still on direct review

 

                      1.        Recall of remittitur: A fundamental change in the law is a ground for recalling the remittitur. A party may make a motion for recall under rule 26(c)(2). (See People v. Mutch (1971) 4 Cal.3d 389, 396-397; People v. Ketchel (1966) 63 Cal.2d 859, 868; People v. Curtis (1971) 21 Cal.App.3d 704, 705, 708, overruled on other grounds in In re Earley (1975) 14 Cal.3d 122, 130, fn. 11.)

 

                      2.        State habeas corpus: The California courts will normally accept state habeas corpus jurisdiction if federal habeas corpus relief would be available. (In re Spencer (1965) 63 Cal.2d 400, 405-406; In re Shipp (1965) 62 Cal.2d 547, 553, fn. 2.) These points may be helpful in considering state habeas relief:

 

                                 a.        Availability: A recent change in fundamental applicable law can allow an exception to the usual rule that habeas corpus may not be used to raise an issue that theoretically could have been raised on appeal or that was raised and rejected. (In re Harris (1993) 5 Cal.4th 813, 841.)

 

                                 b.        Choice of forum: Both the superior court and the Court of Appeal would have jurisdiction. The trial court is normally the preferred forum for a petition filed for the first time on a particular ground, but because of the substantial legal questions Blakely raises, the trial courts may be looking to the appellate courts for guidance. Strategic considerations may be important here; consult with trial counsel. Some cases, such as those involving guilty pleas, may involve factual issues that would better be presented to the trial court. Appellate counsel should be aware that compensation for proceedings in the superior court normally comes from that court, not the Court of Appeal.

 

                                 c.        Relief to be sought: A habeas corpus petition filed in any court can ask for direct relief on Blakely grounds. (**FDAP Web site sample of Court of Appeal habeas petition seeking direct relief is available.) If filed in the Court of Appeal, it may also seek recall of the remittitur. (See In re Smith (1970) 3 Cal.3d 192, 203-204.) This process would reopen the appeal and permit briefing on Blakely.

 

                      3.        Choice of remedy: Although both habeas corpus and recall of the remittitur would appear to be appropriate, we think that a simple motion to recall the remittitur under rule 26(c)(2), to grant rehearing, and to permit briefing on Blakely, accompanied by a supplemental opening brief on Blakely, has a good deal to recommend it:

 

                                 •         It is more efficient and much less cumbersome procedurally than habeas corpus.

 

                                 •         It avoids successive petitions problems that might require investigating and adding other issues to the habeas petition. (In re Clark (1993) 5 Cal.4th 750, 797; Pen. Code, § 1475.) Footnote

 

                                 •         It reinstates direct review and so would allow the federal habeas statute of limitations to restart from day one, rather than simply tolling it from the original starting date. (28 U.S.C. § 2244(d)(1)(A), (d)(2).)

 

                                 •         It reflects the normal policy preference for legal/appellate remedies over equitable/writ remedies. (In re Harris, supra, 5 Cal.4th 813, 825-829.)

 

The Court of Appeal may express a preference for one procedure over another, and ADI will inform counsel if that is so. Meanwhile, we suggest a motion to recall the remittitur be filed, unless there are strategic or other advantages to habeas corpus (e.g., the need to rely on facts outside the record). If the motion to recall is denied as an improper remedy, there would be no obstacle to filing a later habeas petition.

 

           E.       Cases involving a guilty plea: As mentioned at the beginning, these can be more complicated than cases that were tried. ADI is preparing a memo on this subject. Consultation with ADI and trial counsel is very important.

 

IV.     RESOURCES

 

           A.       Blakely “hotline” committee: ADI has a “hotline” committee of staff attorneys to act as consultants on Blakely issues. They are:

 

                      Howard Cohen        ext. 24           hcc@adi-sandiego.com

                      Patrick DuNah         ext. 31           ped@adi-sandiego.com

                      Diane Nichols          ext. 57           dln@adi-sandiego.com

                      Cindi Mishkin          ext. 55           cbm@adi-sandiego.com

                      Art Martin                ext. 61           abm@adi-sandiego.com


                      The assigned staff attorney of course is available, too.

 

           B.       Web sites:

 

                      1.        ADI: ADI’s Web site has a Blakely resource page under “Legal Resources”

 

It includes links to articles, news, and online resources, as well as a number of sample pleadings and opinions. We ask panel attorneys to help provide samples as they are produced.

 

Attorney Cindi Mishkin is acting as the “clearinghouse” for model briefs, motions, petitions, opinions, etc., to put on our website. Please route to her materials you think might be useful. (Again, you can reach her at ext. 55, e-mail cbm@adi-sandiego.com .) This includes Blakely-specific arguments, as well as sample pleadings such as motions to file a supplemental brief, request for relief from filing late petition for rehearing or review, or request to recall the remittitur. Cindi can also provide sample arguments and pleadings not yet on the Web site.

 

                      2.        FDAP: The First District Appellate Project has a collection of memos, links, and a number of sample pleadings and opinions: http://www.fdap.org/blakely.html

 

                      3.        Appellate projects: All of the appellate projects will be screening Blakely filings and forwarding sample materials to ADI . We will organize the samples chosen, and when they are reasonably complete the projects will post them in unified form on their Web sites, so that attorneys do not have to visit multiple sites to find what they need.