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Burton, Teague, and AEDPA


For anyone tired of election and abortion news, here are some more thoughts on yesterday's argument in Burton.

No error. Although the case is about the retroactivity of Blakely v. Washington, there is considerable doubt whether this case involves a Blakely error at all. The first question for defense counsel Jeffrey Fisher out of the gate involves whether the sentence imposed was legally available to the judge (within the "statutory maximum") based on the offenses of conviction in the present case and Burton's criminal record. The state appellate court held it was in the present case.  See pp. 11-13 of our brief. On page 6 of the transcript, Fisher cites another Washington case for the contrary proposition, but even if he is correct that question of state law is not a ground for federal habeas relief. In the present case, the sentence was affirmed as within the legal range based on convictions alone. While there is little doubt that the judge considered other facts in deciding whether to actually impose that available sentence, that is not Blakely error.

New rule. Surprisingly, Fisher does not lead off with his best argument, that Blakely was a "watershed" rule, but instead with the weak argument that it was not "new" within the meaning of Teague v. Lane. Given how narrowly the Court has defined "old" rules and given how Blakely was uniformly regarded as a bombshell on the day it was announced, this argument borders on frivolous. Justice Kennedy notes the "dictated by precedent" requirement on page 22. Not until page 24 does Fisher get to the "watershed" argument.

Nonbarking dog. Sometimes an unexpected nonevent can be as significant as an event. On pages 48-49, ASG Roberts goes on for two pages as to why Blakely does not qualify for the retroactivity exception. No questions.  Maybe they consider it obvious.  Justice Souter's questions at the end of the state DSG's argument seems to indicate an awareness that if a court could plausibly find Apprendi distinguishable, then the decision that it is not distinguishable is a new rule. This has been the law since at least Butler v. McKellar, 494 U.S. 407 (1990). Another possibility is that they have already decided they are going to decide this case on jurisdiction.

Teague and AEDPA. On page 25, Chief Justice Roberts notes, "it is not clear that it matters whether [Blakely] is a watershed rule if you read AEDPA 2254(d)(1) by its terms." Lyle Denniston at SCOTUSblog posits that this comment may be tipping the result of the Court's conference on Whorton v. Bockting, where the relationship of AEDPA to the second Teague exception is also at issue. However, Lyle is incorrect that the issue is whether AEDPA overrules Teague. Horn v. Banks, 536 U.S. 266, 272 (2002) settled that the Teague and AEDPA inquiries are distinct. Both of them are prerequisites to habeas relief where they both apply. The Chief Justice's suggestion that the "watershed rule" issue may not matter in this case simply suggests that these two distinct inquiries need not be made in any particular order. If a court determines that the petitioner cannot clear one hurdle, it need not decide whether he can clear another. AEDPA, if read according to its terms, has no exception similar to the second Teague exception, but it does not overrule Teague.


Kent -

How could a "new" watershed rule (established after a state court decision is final) EVER have been "clearly established" at the time of the state court decision? Doesn't the former conclusion preclude the later in EVERY case? Or, am I missing something?


The Teague rule and AEPDA relate to different times. The Banks case is an example. Mills v. Maryland was decided after Banks's case was decided on direct appeal. Even so, the Pennsylvania Supreme Court addressed his Mills claim on the merits on state postconviction review. Under AEDPA, the question would have been whether Penn. S. C. reasonably applied the then clearly established Mills rule. SCOTUS didn't get to it, though, because it decided the claim was Teague-barred on federal habeas.

For most cases, though, "clearly established" is indeed the inverse of "new," and the Court pretty much said that in Williams v. Taylor.

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