From Casetext: Smarter Legal Research

In re Dean

United States Court of Appeals, Eleventh Circuit
Jul 9, 2004
375 F.3d 1287 (11th Cir. 2004)

Summary

holding Blakely not retroactively applicable to cases on collateral review

Summary of this case from Henderson v. McNeil

Opinion

No. 04-13244.

July 9, 2004.

Will Crawford Dean, Jesup, GA, pro se.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. §§ 2255, 2244(b)(3)(A).

Before ANDERSON, CARNES and BARKETT, Circuit Judges.


BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255 and 2244(b)(3)(A), as amended by §§ 105 and 106 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Will C. Dean, Jr. has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(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.

28 U.S.C. § 2255. "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. § 2244(b)(3)(C).

In his application, Dean indicates that he wishes to raise one claim in a second or successive § 2255 motion, namely, that the district court violated his Sixth Amendment right to a jury trial by enhancing his sentence under the federal Sentencing Guidelines based on his leadership role in the offense and his relevant conduct, when the facts supporting those guideline enhancements were neither mentioned during his Fed.R.Crim.P. 11 plea colloquy nor proved to a jury beyond a reasonable doubt. Dean contends that his claim relies on a new rule of constitutional law, citing the United States Supreme Court's recent opinion in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

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 2535 (citing Wash. Rev. Code Ann. § 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 Wash. Rev. Code Ann. § 9.94A.390(2)(h)(iii)). Blakely objected to the trial court's sentencing procedure, and, in response, the court held a three-day bench hearing featuring testimony from numerous witnesses. Id. at 2536. After the hearing, the court issued 32 findings of fact, ultimately reaffirming its original decision to impose the 90-month enhanced sentence. Id.

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 28 U.S.C. § 2254 petition, the Supreme Court itself must make the rule retroactive. Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 2482, 150 L.Ed.2d 632 (2001). It is not enough that a new rule of constitutional law is applied retroactively by this Court or that it satisfies the criteria for retroactive application set forth by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000). Additionally, the Supreme Court does not make a rule retroactive through dictum. Tyler, 533 U.S. at 663 n. 4, 121 S.Ct. at 2482 n. 4. Multiple cases can, together, make a rule retroactive, but only if the holdings in those cases necessarily dictate retroactivity of the new rule. Id. at 666, 121 S.Ct. at 2484.

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 Apprendi 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. 28 U.S.C. § 2255.

Dean has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255. Accordingly, his application for leave to file a second or successive motion is DENIED.


Summaries of

In re Dean

United States Court of Appeals, Eleventh Circuit
Jul 9, 2004
375 F.3d 1287 (11th Cir. 2004)

holding Blakely not retroactively applicable to cases on collateral review

Summary of this case from Henderson v. McNeil

holding thatBlakely is not retroactive to cases on collateral review

Summary of this case from U.S. v. Manders

holding Blakely does not apply retroactively

Summary of this case from CANO v. U.S.

holding that Blakely is not applicable to cases already final

Summary of this case from Arvizo-Pena v. Medellin

holding that Blakely is not applicable to cases already final

Summary of this case from U.S. v. Hendricks

holding that Blakely does not apply retroactively to cases already final on direct review

Summary of this case from Herrera-Flores v. U.S.

holding that Blakely does not apply retroactively to cases already final on direct review

Summary of this case from Brown v. U.S.

holding that Blakely is not applicable to cases already final

Summary of this case from U.S. v. Larry

Holding that Blakely is not retroactively available to successive § 2255 petitions

Summary of this case from Tisdale v. U.S.

holding that Blakely is not applicable to cases already final

Summary of this case from State v. Febles

finding that Blakely was not retroactive to cases already final on direct review

Summary of this case from U.S. v. Riley

denying application for leave to file second or successive motion to vacate sentence, and stating that Supreme Court had not expressly declared Blakely retroactive

Summary of this case from State v. Smart

discussing how Blakely was based on Apprendi and concluding Blakely is not retroactive to cases on collateral review

Summary of this case from U.S. v. Levy

addressing Blakely

Summary of this case from Robinson v. U.S.

addressing Blakely

Summary of this case from Sasser v. U.S.

addressing Blakely

Summary of this case from Smith v. U.S.

addressing Blakely

Summary of this case from Richardson v. U.S.

addressing Blakely

Summary of this case from Richardson v. U.S.

noting that the Supreme Court has implied that Blakely was not retroactive

Summary of this case from Mayle v. U.S.

observing that "the Supreme Court has strongly implied that Blakely is not to be applied retroactively"

Summary of this case from Ortiz v. U.S.

observing that "the Supreme Court has strongly implied that Blakely is not to be applied retroactively"

Summary of this case from Vega v. U.S.

noting that the Supreme Court strongly implied in Schriro v. Summerlin, 124 S. Ct. 2519, that Blakely is not to be applied retroactively

Summary of this case from Richards v. U.S.

noting that the Supreme Court strongly implied in Schriro v. Summerlin, 124 S. Ct. 2519, that Blakely is not to be applied retroactively

Summary of this case from Garcia v. U.S.

noting that the Supreme Court strongly implied in Schriro that Blakely is not to be applied retroactively

Summary of this case from Gibson v. U.S.

noting that the Supreme Court strongly implied in Schriro that Blakely is not to be applied retroactively

Summary of this case from Askanazi v. U.S.
Case details for

In re Dean

Case Details

Full title:In Re: Will C. DEAN, Jr., Petitioner

Court:United States Court of Appeals, Eleventh Circuit

Date published: Jul 9, 2004

Citations

375 F.3d 1287 (11th Cir. 2004)

Citing Cases

U.S. v. Stancell

The Supreme Court's decision inSchriro, "has strongly implied that Blakely is not to be applied…

U.S. v. Levy

Blakely is basically an extension of the Apprendi rule. See In re Dean, 375 F.3d 1287, 1289-90 (11th Cir.…