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Tuesday, January 09, 2007

Burton v. Stewart: Retroactivity of Blakely

Burton v. Stewart, 127 S. Ct. ___ (2007). Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range. The sentence became final after Apprendi v. New Jersey but before Blakely v. Washington. Questions presented: (1) Is the holding in Blakely a new rule or is it dictated by Apprendi? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively? Rather than answer these questions, the Court issued a per curiam decision holding that the district court lacked jurisdiction to hear the habeas corpus petition because it had not been filed as required by the AEDPA gateway; this was a second or successive petition for which permission had not been granted under 28 U.S.C. § 2244(b). The per curiam decision reversed all proceedings and held that the habeas proceeding must be dismissed, leaving the questions raised to be answered in the future.