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Ninth Circuit: Retroactive Blakely Relief Unavailable on Habeas Corpus, Only on Timely Certiorari
by John E. Dannenberg
The Ninth Circuit U.S. Court of Appeals held that a state prisoner virtually identically situated as in Blakely v. Washington, 124 S.Ct. 2532 (2004) (sentence may not be enhanced by facts not found true by a jury) was procedurally barred from federal habeas corpus relief because Blakely could not be applied retroactively to a conviction that had become final before Blakely’s publication. In so holding, the Ninth Circuit joined the Tenth Circuit in U.S. v. Price, 400 F.3d 844, 849 (2005) (Blakely does not apply retroactively to 28 U.S.C. § 2255 petitions) and Young v. Neet, 130 Fed.Appx. 211 (10th Cir. 2005) (Blakely does not apply retroactively to 28 U.S.C. § 2254 petitions).
Dale Schardt, a Washington state prisoner, was convicted of first-degree child rape for repeated sexual intercourse (April 1996 to April 1997) with a girl younger than twelve. In accord with Washington’s Sentencing Reform Act, Schardt was sentenced to 78-102 months, subject to an upward departure if the judge found specified aggravating factors. Factually finding that Schardt had violated his special trust as a stepfather in caring for the 10 to 11-year-old girl, and that the crimes were committed over a prolonged period of time, the court increased Schardt’s punishment to 204 months.
In his state personal restraint petitions, Schardt unsuccessfully claimed violation of his Sixth Amendment right to a jury trial on facts used to sentence him, citing Apprendi v. New Jersey, 530 U.S. 466 (2000). The United States District Court (W.D. Wash.) denied his 28 U.S.C. § 2254 habeas corpus petition.
When Schardt timely appealed to the Ninth Circuit, Blakely had not yet been decided. After that ruling came down, Schardt moved to expand his Certificate of Appealability (COA) to include Blakely, but did not do so within the 35 days specified by Circuit Rule 22-1(d) (2003 version). However, on January 1, 2004, the Ninth Circuit added Circuit Rule 22-1(e), which provided for out-of-time expansions containing “certified issues” and “uncertified issues.” Liberally construing the new rule, the court accepted Schardt’s expansion of the COA to include the new Blakely issue.
At the outset, the court agreed that Schardt’s claim was virtually indistinguishable from the issue decided favorably by the U.S. Supreme Court in Blakely. But the Ninth Circuit discerned a fatal procedural distinction. Blakely had been decided on a writ of certiorari from that defendant’s direct appeal of his conviction, whereas Schardt’s case was brought in a collateral attack on federal habeas corpus. The difference was in the restrictive rules attaching to § 2254 habeas petitions versus the virtually unlimited purview of the Supreme Court’s discretion to hear a case brought directly on certiorari from a state court.
In Cook v. United States, 386 F.3d 949 (9th Cir. 2004), the Ninth Circuit held that the U.S. Supreme Court had not made Blakely retroactive to cases on collateral review, citing Teague v. Lane, 489 U.S. 288 (1989) (second or successive habeas petitions shall normally be dismissed). But Cook did not control here because this was Schardt’s initial petition. The appellate court therefore conducted another Teague analysis, concluding that although Blakely announced a new rule not dictated by precedent, it did not rise to the requisite “watershed” new rule of criminal procedure needed to overcome Teague’s retroactivity proscription. And because the rule in Blakely had not resulted in a decision that was contrary to – or involved an unreasonable application of – clearly established federal law as determined by the U.S. Supreme Court, Schardt could not benefit from the exception to habeas exclusion codified at 28 U.S.C. § 2254(d)(1).
Schardt also argued a basic due process right to prevent a conviction based upon aggravating sentencing factors amounting to preexisting elements for which he had received no notice. But the Court of Appeals found that the trial judge’s sentencing decision did not violate any constitutional principle announced by the U.S. Supreme Court before his sentence became final. Simply stated, Blakely’s announcement came too late for Schardt.
Accordingly, the Ninth Circuit held that the new rule announced in Blakely did not apply retroactively to a state conviction that had become final before Blakely was announced, and that therefore § 2254 habeas corpus relief was unavailable to Schardt to attack his now final sentencing decision. See: Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005).
The Ninth Circuit U.S. Court of Appeals held that a state prisoner virtually identically situated as in Blakely v. Washington, 124 S.Ct. 2532 (2004) (sentence may not be enhanced by facts not found true by a jury) was procedurally barred from federal habeas corpus relief because Blakely could not be applied retroactively to a conviction that had become final before Blakely’s publication. In so holding, the Ninth Circuit joined the Tenth Circuit in U.S. v. Price, 400 F.3d 844, 849 (2005) (Blakely does not apply retroactively to 28 U.S.C. § 2255 petitions) and Young v. Neet, 130 Fed.Appx. 211 (10th Cir. 2005) (Blakely does not apply retroactively to 28 U.S.C. § 2254 petitions).
Dale Schardt, a Washington state prisoner, was convicted of first-degree child rape for repeated sexual intercourse (April 1996 to April 1997) with a girl younger than twelve. In accord with Washington’s Sentencing Reform Act, Schardt was sentenced to 78-102 months, subject to an upward departure if the judge found specified aggravating factors. Factually finding that Schardt had violated his special trust as a stepfather in caring for the 10 to 11-year-old girl, and that the crimes were committed over a prolonged period of time, the court increased Schardt’s punishment to 204 months.
In his state personal restraint petitions, Schardt unsuccessfully claimed violation of his Sixth Amendment right to a jury trial on facts used to sentence him, citing Apprendi v. New Jersey, 530 U.S. 466 (2000). The United States District Court (W.D. Wash.) denied his 28 U.S.C. § 2254 habeas corpus petition.
When Schardt timely appealed to the Ninth Circuit, Blakely had not yet been decided. After that ruling came down, Schardt moved to expand his Certificate of Appealability (COA) to include Blakely, but did not do so within the 35 days specified by Circuit Rule 22-1(d) (2003 version). However, on January 1, 2004, the Ninth Circuit added Circuit Rule 22-1(e), which provided for out-of-time expansions containing “certified issues” and “uncertified issues.” Liberally construing the new rule, the court accepted Schardt’s expansion of the COA to include the new Blakely issue.
At the outset, the court agreed that Schardt’s claim was virtually indistinguishable from the issue decided favorably by the U.S. Supreme Court in Blakely. But the Ninth Circuit discerned a fatal procedural distinction. Blakely had been decided on a writ of certiorari from that defendant’s direct appeal of his conviction, whereas Schardt’s case was brought in a collateral attack on federal habeas corpus. The difference was in the restrictive rules attaching to § 2254 habeas petitions versus the virtually unlimited purview of the Supreme Court’s discretion to hear a case brought directly on certiorari from a state court.
In Cook v. United States, 386 F.3d 949 (9th Cir. 2004), the Ninth Circuit held that the U.S. Supreme Court had not made Blakely retroactive to cases on collateral review, citing Teague v. Lane, 489 U.S. 288 (1989) (second or successive habeas petitions shall normally be dismissed). But Cook did not control here because this was Schardt’s initial petition. The appellate court therefore conducted another Teague analysis, concluding that although Blakely announced a new rule not dictated by precedent, it did not rise to the requisite “watershed” new rule of criminal procedure needed to overcome Teague’s retroactivity proscription. And because the rule in Blakely had not resulted in a decision that was contrary to – or involved an unreasonable application of – clearly established federal law as determined by the U.S. Supreme Court, Schardt could not benefit from the exception to habeas exclusion codified at 28 U.S.C. § 2254(d)(1).
Schardt also argued a basic due process right to prevent a conviction based upon aggravating sentencing factors amounting to preexisting elements for which he had received no notice. But the Court of Appeals found that the trial judge’s sentencing decision did not violate any constitutional principle announced by the U.S. Supreme Court before his sentence became final. Simply stated, Blakely’s announcement came too late for Schardt.
Accordingly, the Ninth Circuit held that the new rule announced in Blakely did not apply retroactively to a state conviction that had become final before Blakely was announced, and that therefore § 2254 habeas corpus relief was unavailable to Schardt to attack his now final sentencing decision. See: Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005).
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