In addition to whether Blakely v. Washington is retroactive on habeas, the other question left unanswered in Burton v. Stewart is why the Court chose this case as the vehicle for that question. As I noted last October, it was a stunningly poor choice.

   Did the Court's certiorari screening process fail big time? Were the Justices unaware this case had a glaring jurisdictional issue that stood in the way of the question they took it to answer? If so, why?

   Sometimes you can blame bad briefing on the part of the respondent. Supreme Court newbies sometimes just brief the case on the merits and give short shrift to cert-repellants like jurisdictional problems and messy, unique facts. Not in this case. The state was represented by AAG John Samson, an experienced and well-regarded advocate. His Brief in Opposition states the jurisdictional problem plainly as point A under reasons not to grant cert.

   Out of all the salmon swimming up Blakely River, why pick the one that's lying on its side gasping? It's still a mystery outside the Court. Inside, I expect it's been the subject of some "frank" discussions.