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Cunningham Retroactivity

In Cunningham v. California, 549 U.S. 270 (2007), the U.S. Supreme Court decided that the California Legislature violated the Sixth Amendment by requiring that an aggravating fact be found before a felon could be sentenced to the upper of three possible terms for a felony, without also requiring that the fact be found by the jury. (The Legislature responded by eliminating the fact requirement altogether.) The Cunningham decision was based on the precedent of Blakely v. Washington, 542 U.S. 296 (2004).

Under the rules of Griffith v. Kentucky, 479 U.S. 314 (1987) and Teague v. Lane, 489 U.S. 288 (1989), new rules created by the Supreme Court apply to cases then pending on direct appeal, but they do not apply in subsequent habeas corpus petitions when the direct appeal was already final on the date the rule was created.

So what is the status of cases that become final on direct appeal between Blakely and Cunningham? Was Cunningham a new rule or just an application of Blakely? Monday at 10:00 PST, the California Supreme Court will announce its decision in In re Sotero Gomez, S155425.

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