Blakely v. Washington
(2004) 542 U.S. ___ [124 S.Ct. 2531; 159 L.Ed.2d 403]
The United States Supreme Court's decision in Blakely v. Washington, called into question the constitutionality of the federal sentencing guidelines and nearly a dozen state sentencing guidelines schemes, including California's.
Appellate Defenders, Inc. offers this Blakely Resource Page to assist panel attorneys in staying up to date on the latest opinions, briefs, articles, and editorials.
Grant of Certiorari in Cunningham v. California
As undoubtedly all panel attorneys are aware, the United States Supreme Court has granted certiorari to review the question whether choice of the upper term under the California sentencing scheme falls within the scope of Blakely v. Washington (2004) 542 U.S. 296. ADI continues to adhere to its previous advice in Blakely After Black, which can be found here. Please study the guidance closely; it is very important to protecting clients’ rights.
Blakely held a state may impose a sentence on the basis of specified facts, other than prior convictions, only if they have been admitted by the defendant, or if a jury (or another trier, if the defendant has waived jury) has found them true beyond a reasonable doubt. In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held Blakely does not invalidate the California sentencing scheme as to the choice of an upper term or consecutive sentencing.
The case in which the United States Supreme Court has granted certiorari is People v. Cunningham (2005, unpublished, No. A103501) 2005 Cal.App.Unpub. Lexis 3383, cert. granted sub nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [2006 U.S. Lexis 1136].) Cunningham involves only imposition of the upper term.
The grant of certiorari in Cunningham does not affect Black’s validity as binding authority on California courts unless and until the United States Supreme Court disagrees with it on the merits. At this time Black remains the law in California.
We summarize the main points made in our Blakely After Black memo:
(1) Until the United States Supreme Court definitely rules on the California sentencing scheme, counsel should preserve Blakely issues (explicitly acknowledging, however, that Black is binding law in California). To do so, they must raise them properly in Court of Appeal opening brief and must petition for review to the California Supreme Court.
(2) If the United States Supreme Court holds Blakely invalidates the sentencing scheme as to choice of the upper term, all cases not yet final on direct appeal when Blakely was decided (June 24, 2004) will be covered by Cunningham. A case is “final on direct appeal” when the time for petitioning for certiorari has expired – normally, 90 days after denial of review by the California Supreme Court.
(3) It is not necessary to petition for certiorari in the United States Supreme Court in order to preserve the issue for later relief in either federal or state courts. Cunningham does not change that. If in a particular case counsel believes such a petition is important to protecting the client – or if counsel has any doubt about the matter – he or she should contact the assigned ADI staff attorney. This is especially important if the case is getting close to the certiorari deadline (as stated above, normally 90 days after denial of review by the California Supreme Court).
(4) For post-remittitur cases to which Blakely applies (i.e., those not yet final on direct appeal when Blakely was decided), no immediate action is necessary in most cases. Until Cunningham is decided, seeking state habeas corpus or recall of the remittitur would be futile – and potentially risky to the client because of the successive petitions rule. Counsel should, however, keep a close eye on the one-year statute of limitations for federal habeas corpus. In most situations the one-year clock starts running 90 days after denial of review by the California Supreme Court. Counsel should contact ADI for cases close to that deadline. We have considerable materials on the subject and can provide forms for federal habeas corpus petitions, which the client would normally file in pro per.
(5) Keep in mind the pointers we gave about “Blakely in Real Life” in our Blakely After Black memo. Counsel should weigh the practical effects on their clients of the various courses this sojourn might take, so that they can make decisions that are not only legally correct, but also wise, and give clients a realistic view of what might happen to them.
We are aware that attorneys have received somewhat differing advice from various appellate projects on certain procedural aspects. Please do not hesitate to contact the assigned ADI staff attorney if you think any of your clients will need procedures other than those outlined here and in Blakely After Black.
I surely understand attorneys’ confusion and uncertainty when they try to keep their footing on the ever-shifting landscape of sentencing jurisprudence. I hope the guidance here and the much more extensive discussion in Blakely After Black will provide the background for counsel to think through the issues in a clear, correct, and commonsense way.