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Burton Briefing

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The "bottom side" briefs have been filed in Burton v. Waddington, the Blakely retroactivity case. The briefs so far (all except the reply) are collected here.

As the State's brief and CJLF's amicus brief point out, the Court made a stunningly poor choice of vehicle for deciding Blakely retroactivity. There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide. In addition, Burton's sentence is legally justified entirely on his criminal record without any other facts. The state appellate court so held, and this holding of state law is binding on the federal habeas court. Unless the Court wants to overrule Almendarez-Torres v. United States, there is no Blakely error here.

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I guess we'll find out what the Supreme Court was thinking at oral argument--the Ninth's decision in this case was somewhat curious.

Almendarez-Torres should not be overruled. A criminal judgment in the vast majority of cases requires a jury or a waiver of the jury trial right, thus, the defendant's interests have already been vindicated. Of course, that reasoning would fall apart in deportation cases. The government still has to prove the fact of a prior conviction.

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