Petition for Writ of Certiorari — Gaines v. United States (No. 05-1317)

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A 1-year period of limitation shall apply to a

motion under this section. The limitation period

shall run from the latest of—

(1) the date on which the judgment of

conviction becomes final;

(2) the date on which the impediment

to making a motion created by

governmental action in violation of the

Constitution or laws of the United States

is removed, if the movant was prevented

from making a motion by such

governmental action;

(3) the date on which the right asserted

was initially recognized by the Supreme

Court, if that right has been newly

recognized by the Supreme Court and .

made retroactively applicable to cases

on collateral review; or

(4) the date on which the facts

supporting the claim or claims presented

could have been discovered through the

exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this section,

and any subsequent proceedings on review, the court may 7

appoint counsel, except as provided by a rule promulgated

by the Supreme Court pursuant to statutory authority.

Appointment of counsel under this section shall be governed

by section 3006A of title 18.

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A second or successive motion must be certified as

provided in section 2244 by a panel of the appropriate court ,

of appeals to contain—

(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would

be sufficient to establish by clear and convincing

evidence that no reasonable fact finder would have

found the movant guilty of the offense; or

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

STATEMENT OF THE CASE

This case originated in a criminal complaint against

Corwin Gaines, Allen Franklin and Francis Turner, issued

on July 10, 1996. Gaines and Franklin were arrested on

July 12, 1996; and, on July 18, 1996, an indictment was

returned charging Gaines in Count One with conspiracy with

Franklin and Turner to possess cocaine base with intent to

distribute from May 3, 1996 through July 12, 1996; and, in

Counts Six through Eight, with the substantive possession

of cocaine base with intent to distribute on June 13, 1996,

June 20, 1996 and July 12, 1996, respectively.

The first trial of this case commenced on March 31, 1997,

before the Hon. George A. O'Toole, Jr. and a jury, and was

submitted to the jury for its deliberation on April 16, 1997.

The jury failed to reach a verdict after five days’ deliberations;

a mistrial was declared on April 23, 1997. Retrial commenced

on June 10, 1997, and on June 24, 1997, after deliberating

for a day and a half, the jury returned a verdict of guilty on

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Counts One, Seven, and Eight, and of Not Guilty on Count

Six. On October 8, 1997, Gaines was sentenced to a term of

292 months imprisonment.

The Petitioner appealed the conviction, and the Appeals

Court affirmed the-judgment-The Petitioner filed a petition

for panel rehearing, and the Appeals Court denied it. The

Petitioner did not apply for a Writ of Certiorari.

The Petitioner subsequently filed a Motion To Vacate

under 28 U.S.C. § 2255 (the “2255 Motion”) on March 7,

2000. In response to the Motion, the Hon. George A. O’ Toole,

Jr. issued an Order that an answer/responsive pleading should

be filed by the respondent, the United States. The government

filed a response in opposition to the 2255 Motion on

May 19, 2000.

In the midst of this, the Supreme Court issued its decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000).

As a result, the Petitioner filed a Motion to Amend the

2255 Motion, to add-three new Apprendi claims, on June

25, 2001. The indictment charged him in Count One with

conspiracy to possess cocaine base with intent to distribute

from May 3, 1996 through July 12, 1996; and, in Counts Six

through Eight, with the substantive possession of cocaine

base with intent to distribute on June 13, 1996, June 20, 1996

and July 12, 1996, respectively. The indictments themselves

do not, however, make mention of any specific drug weight.'

1. The indictment merely includes-a Notice of Applicability,

alerting Gaines that the offenses charged in Counts One and Eight

involved 50 grams or more of cocaine base such that the enhanced

penalties contained in 21 U.S.C. § 841(b)(1)(A)(iil), imposing a

(Cont'd)

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Yet, his sentence was enhanced by the weight of the drugs

which, he argues, is an Apprendi and Blakely violation.

According to the Presentence Report (the “PSR”), he was

held accountable for a total of 2.8 KG of cocaine base for

three transactions as follows: 47.5 grams sold on 5/21/96;

21.3 grams sold on 6/20/96; and 2,748 grams found in his

apartment on 7/12/96. Per the Drug Quantity Table under

U.S.S.G 2D1.1(c)(3), 1.5 KG or more of cocaine base yielded

a base offense level of 38. The District Court Judge allowed

the motion to amend the 2255 Motion on July 26, 2001.

The government filed a motion to reconsider the allowance

of the motion to amend on August 3, 2001, and the Judge

denied the motion to reconsider on August 14, 2001.

The district court held a hearing on the 2255 Motion on

September 25, 2001. On June 28, 2001, the Judge issued an

order denying the 2255 Motion.

The Petitioner filed a timely appeal of the Order denying

the motion to vacate on December 5, 2001. On February 4,

2002, the Petitioner filed an Application for Certificate

of Appealability (“COA”) with the District Court.

On September 30, the District Court issued an Order granting

COA on some, but not all, of the issues raised in the

Petitioner’s 2255 Motion. The Order is reproduced in the

Appendix. Most importantly, for purposes of this Petition,

the District Court granted COA on an Apprendi issue.

(Cont'd)

maximum life imprisonment term, applied to those counts.

Gaines was further notified that Counts Six and Seven involve

5 grams or more of cocaine base such that the enhanced penalties

contained in 21 U.S.C. § 841(b)(1)(B)(iii), imposing a maximum

40 year imprisonment term, applied to those counts.”

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The Petitioner filed an Application for Expanded COA

with the Appeals Court on November 26, 2002. On February —

27, 2003, the Appeals Court denied the application for an

expanded COA.

The Petitioner filed a brief on appeal. In the brief, the

Petitioner incorporated Blakely into his Apprendi argument

in that Blakely was decided while the appeal was pending.

Blakely v. Washington, 542 U.S. 296 (2004). The United

States, in lieu of filing a brief, filed a Motion for Summary

Disposition arguing, inter alia, that Apprendi and Blakely

are not retroactive to cases such as this one.

On January 12, 2006, the Appeals Court entered a

judgment affirming the judgement of the district court due,

in large part, to the fact that, in its opinion, neither

Apprendi nor Blakely are retroactively applicable to cases

on collateral review.

The Petitioner remains incarcerated.

A. Basis For Federal Jurisdiction In The Court Below

The Petitioner’s appeal arose from an Order on

Petitioner’s Motion under 28 U.S.C. § 2255 which entered

on September 28, 2001 in the federal district court for the

District of Massachusetts denying the Petitioner’s motion

for habeas corpus relief. Jurisdiction of said motion is

conferred upon the federal district Court by 28 U.S.C. § 2255.

Petitioner's timely claim of appeal was entered on

December 5, 2001. The federal district court issued an Order

granting the Application for Certificate of Appealability

(“COA”) on September 30, 2002. Jurisdiction of the appeal

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was, therefore, conferred upon the United States Court of

Appeals for the First Circuit by 28 U.S.C. § 2255 and by

28 U.S.C. § 1291, which vests in the United States Courts of

Appeals jurisdiction of appeals from all final decisions of

the District Court.

ARGUMENT

1. Introduction

In this case, the Petitioner filed a 2255 Motion which he

amended to contain Apprendi claims after the Supreme Court

issued the Apprendi decision. Apprendi v. New Jersey, 530

U.S. 466 (2000). While the case was on appeal, the Supreme

Court issued the Blakely decision which prompted the

Petitioner to include Blakely claims on appeal. Blakely v.

Washington, 542 U.S. 296 (2004). The First Circuit - citing

United States v. Sepulveda, 330 F.3d 55 (1st Cir. 2003)

(holding that Apprendi is not retroactive) and citing United

States v. Cirilo-Munoz, 404 F.3d 527 (2005) (holding that

Blakely is not retroactive) - subsequently entered a judgment

affirming the District Court’s denial of the Petitioner’s 2255

Motion on grounds that neither Apprendi nor Blakely apply

retroactively. In this Writ, the Petitioner argues that they

should apply retroactively, and that his unconstitutional

sentence should be vacated.

The crux of the Petitioner’s Apprendi claim is that,

pursuant to Apprendi and Blakely, he was wrongly sentenced

in that he was indicted, tried and sentenced on facts

(the weight of the drugs) which were not admitted by him or

found by the jury. The applicable constitutional rule,

announced in Apprendi, is that, “[other] than the fact of a

prior conviction, any fact that increases the penalty for a crime

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beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 476. The applicable constitutional rule,

announced in Blakley, is that, “the ‘statutory maximum’ for

Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant (emphasis in original).”

Blakely, 542 U.S. 296 at 303 (citations omitted).

2. Apprendi (and now Blakley) pose a bar to the

imposition of consecutive sentences where the total

punishment exceeds the highest statutory maximum

on any particular count

When the defendant amended his 2255 Motion, he added

three claims based on Apprendi v. New Jersey, 530 U.S. 466

(2000), arguing that his sentence was unconstitutional

because it had been enhanced by the weight of drugs even

though their weight was not stated in the indictment or

mentioned in the jury instructions. The Trial Judge granted

COA on the Apprendi issues as follows:

In an unpublished opinion, Saccoccia v. United

States, 42 Fed.Appx. 476, 482, 2002 WL 1734169

at **4 (Ist Cir. 2002), a panel of the Court of

Appeals resolved the Apprendi issue presented

against petitioner’s position. If this had been a

precedential decision, there would be no need for

further appellate consideration of the question.

Since precedential status was not given the

Saccoccia ruling, however, the matter must still

be considered to be an open question in this

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circuit. Accordingly, the certificate of

appealability is GRANTED as to this issue as

well.

09/30/02 Order Granting Application for COA,

Appendix.

Accordingly, the narrow Apprendi issue that was on

appeal, pursuant to the parameters of the COA, was whether

Apprendi poses a bar to the imposition of consecutive

sentences where the total punishment exceeds the highest

statutory maximum on any particular count.

In Saccoccia, the defendant sought to supplement his

COA application to include a claim under Apprendi. United

States v. Saccoccia, 42 Fed. Appx. 476 (1st Cir. 2002). The

district court concluded that the sentences on the several

counts of his convictions should run consecutively.

Saccoccia, 42 Fed. Appx. at 482 ( “The [district] court

imposed the longest possible sentence on each count and ran

the sentences consecutive to one another.”).

But, as the Appeals Court noted in Saccoccia, “‘the vice

in Apprendi was the imposition of a sentence on a single

count. . .in excess of the statutory maximum for that count.””

Saccoccia, 42 Fed. Appx. at 482 citing United States v. Feola,

275 F.3d 216, 220 n. 1 (2nd Cir. 2001) (per curiam).

Accordingly, in Saccoccia’s case, “the sentencing court

‘imposed the longest possible sentence on each count and

ran the sentences consecutive to one another.’” Saccoccia,

42 Fed. Appx. at 482 citing United States v. Saccoccia, 58

F.3d 754, 786 (Ist Cir. 1995). This was done, the Appeals

Court noted, “pursuant to U.S.S.G. 5G1.2(d), which requires

imposition of consecutive sentences to the extent necessary

1]

to produce a combined sentence equal to the total

punishment.” Saccoccia, 42 Fed. Appx. at 482. Apprendi,

the Court concluded, “poses no bar under these circumstances

to the imposition of consecutive sentences under 5G1.2(d),

even when ‘the total punishment exceeds the highest statutory

maximum on any particular count.*” Saccoccia, 42 Fed.

Appx. at 482 (citations omitted).

The circumstance in Saccoccia are not, however, the

same as in the Petitioner’s case. In Saccoccia, the defendant

was actually sentenced to several consecutive sentences; the

Petitioner here was not. Therefore, on this key point,

Saccocia is completely distinguishable from the Petitioner’s

Situation.

Nonetheless, panels of at least the Fourth, Sixth, Eighth

and Eleventh Circuits have all reasoned that in situations

where the trial judge did not but could have imposed

consecutive rather than concurrent sentences, there was no

plain error. United States v. Sturgis, 238 F.3d 956 (8th Cir.

2001); United States v. White, 238 F.3d 537 (4th Cir. 2001);

United States v. Page, 232 F.3d 536 (6th Cir. 2000);

United States v. Smith, 240 F.3d 927 (1 1th Cir. 2001).

Yet, according to the 10th Circuit, “in Apprendi, the

Supreme Court rejects a similar argument, stating that the

relevant inquiry is the constitutionality of the sentence

imposed on each individual count charged in the indictment,

irrespective of the potential total sentence achievable through

the imposition of valid consecutive sentences.” United States

v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000) citing

Apprendi v. New Jersey, 530 U.S. 466 (2000); cf. United

States v. Price, 75 F.3d 1440, 1446 (10th Cir. 1996).

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In Jones, the Tenth Circuit was “concerned with the

legality of the sentences actually imposed, regardless of

whether in the aggregate they are less severe than the

sentences that could have been imposed.” Jones, 235 F.3d at

1238. In looking at Jones’ situation, the Tenth Circuit wrote

that, “[w]Je will not permit our result to be guided by idle

speculation as to the sentence that might be imposed by the

district court on remand.” Jones, 235 F.3d at 1238.

In fact, the Tenth Circuit stated that it “regularly has

found reversible error when the sentence imposed by the

district court exceeded the statutory maximum penalty

applicable to the offense of conviction.” Jones, 235 F.3d at

1238.

More specifically, in Jones, the Appeals Court found that,

“the district court imposed terms of imprisonment appropriate

for offenses involving at least fifty grams of cocaine base,

even though Jones had been indicted and convicted for

committing distinct offenses involving an unspecified

quantity of drugs.” Jones, 235 F.3d at 1238. “Because

§ 841(b)(1)(C) does not permit sentences greater than twenty

years for the offenses of conviction, the sentence imposed

by the district court was not authorized by the jury’s guilty

verdict.” Jones, 235 F.3d at 1238. “Under our precedent, such

unauthorized sentences warrant reversal.” Jones, 235 F.3d

at 1238. “We therefore conclude that the error here was not

harmless, and we remand with instructions that the district

court vacate the sentences for distribution and for posséssion

with intent to distribute, and that the district court resentence

the defendant for those two convictions pursuant to

§ 841(b)(1)(C).” Jones, 235 F.3d at 1238 citing Price, 75

F.3d at 1446. ;

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The Petitioner in this case, whose situation is like the

one in Jones, should receive the same result. When it comes

to consecutive sentences, the judicial concern should be with

the legality of the sentences actually imposed, regardless of

the sentences that could have been imposed.

This position - that when it comes to consecutive

sentences, it is the legality of the sentences actually imposed

that matters - is that much more the right position to adopt

in light of United States v. Blakely, 542 U.S. 296 (2004).

The Supreme Court in Blakely explained that “the statutory

maximum for [Apprendi] purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant (emphasis in

original).” Blakely, 542 U.S. 290 at 303. The Court’s

definition of the statutory maximum sentence in Blakely is

not limited to the maximum sentence identified by the

legislature in a criminal statute. Instead, the sentencing court

is limited to the highest sentence authorized by facts found

by the jury or admitted by the defendant at a plea hearing,

whether those facts may be sentencing factors or the elements

of the crime listed by the legislature, and whether the

maximum sentence may be stated in sentencing guidelines

or a statute. What matters, therefore, in terms of Blakely, is

whether the defendant’s actual sentence is constitutional.

Blakely suggests that the Constitution requires that every fact

which increases a defendant’s maximum sentence must be

found by a jury beyond a reasonable doubt or admitted by a

defendant. In other words, Blakely suggests that the

Constitution does not permit judges to find facts which

increase applicable seniencing ranges.

The First Circuit did not, however, reach this issue in its

judgement as to the Petitioner's case because it found, as a

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threshold matter, that his Apprendi and Blakely claims were

moot because neither case applied retroactively to the

Petitioner’s 2255 Motion. As is argued below, Apprendi and

Blakely should be allowed to apply. And, consequently, the

Petitioner’s sentence should be vacated because it is

unconstitutional.

3. Apprendi and Blakely Establish A New, Watershed

Rule Of Constitutional Procedure That Should Be

Applied Retroactively Under The Teague Rule On

Retroactivity

a. Apprendi Establishes A New, Watershed Rule Of

Constitutional Procedure That Should Be

Applied Retroactively Under The Teague Rule On

Retroactivity

“To date [as of 2003], at least seven United States Courts

of Appeals have held that Apprendi announced a new rule,

but that Apprendi’s new rule does not apply retroactively to

initial 2255 motions for habeas relief.” Coleman v. United

States, 329 F. 3d 77, 82 (2nd Cir. 2003) (citations omitted).

However, as 1s argued below, Supreme Court should decide

that Apprendi is retroactive.

First, in order for a new case to be one that may have a

retroactive effect under Teague v. Lane, 489 U.S. 288 (1989),

the case must announce a new rule. “In light of the dramatic

changes wrought by Apprendi, it unquestionably announced

a new rule of law.” Coleman, 329 F.3d at 83 (citations

omitted).

Second, given that Apprendi announced a new rule of

law, it must be determined whether the rule is substantive or

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procedural. Co/eman, 329 F.3d at 83. New substantive rules

apply retroactively on habeas review. Bousley v. United

States, 532 U.S. 614, 619-621 (1998). But, “[in] Apprendi,

the Court clearly indicated that it was announcing a

procedural rule.” Coleman, 329 F.3d at 84. The Petitioner

would not disagree.

As such, given that Apprendi is a new procedural rule,

the question becomes whether either of Teague’s narrow

exceptions applies. “There are ‘two narrow exceptions’ to

Teague’s general bar against retroactive habeas relief for

procedural errors.” Coleman, 329 F.3d at 88 (citations

omitted).

Of the two exceptions, the one that is applicable to the

case at bar is whether the new rule is a watershed rule of

criminal procedure that is necessary to the fundamental

fairness of the criminal proceeding. Coleman, 329 F.3d at

88. Apprendi, as seen by Justice O’Connor, is a ‘watershed’

rule of criminal procedure. See Apprendi, 530 U.S. at 524

(O’Connor, J., dissenting) (“Today, in what will surely be

remembered as a watershed change in constitutional law, the

Court imposes as a constitutional rule the principle it first

identified in Jones.) (emphasis added).

This, the second Teague exception, states that the rule

should be applied retroactively if it requires the observance

of those procedures that are implicit in the concept of ordered

liberty. Teague. 489 U.S. at 307. Such a rule vindicates two

discrete concerns: the fundamental fairness of the underlying

proceeding; and, the accuracy of that underlying criminal

proceeding. Saffle v. Parks, 494 U.S. 484, 495 (1990).

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The Teague Court explained that it was adapting a rule

previously proposed by Justice Harlan, combining the

accuracy element of Desist v. United States, 394 U.S. 244,

256-69 (1969) (Harlan, J., dissenting), and the fundamental

fairness concerns of Mackey v. United States, 401 U.S. 667,

675-702 (1971) (Harlan, J., concurring). Teague, 489 U.S.

at 312. '

The reasonable doubt element of Apprendi is precisely

the type of rule covered by Teague’s second exception.

See generally Rethinking Retroactivity, 118 HARV.L.REV.

1642 (2005) (tracing the roots of cases requiring retroactivity

and opining that Apprendi/Blakely should apply

retroactively).

This Court’s decision in Schriro v. Summerlin, 542 U.S.

348 (2004) demonstrates that the reasonable doubt standard

is both fundamental and necessary to accuracy in criminal

cases. In Schriro, the Court concluded that the decision in

Ring v. Arizona, 536 U.S. 584 (2002), which applied

Apprendi to Arizona’s capital sentencing scheme, does not

apply retroactively under Teague. The Court began by

reiterating Jeague’s second exception for rules “implicating

the fundamental fairness and accuracy of the criminal

proceeding.” Schriro, 542 U.S. at 352.

The Court proceeded to parse these requirements:

“That a new procedural rule is ‘fundamental’ in some abstract

sense is not enough; the rule must be-one ‘without which he

likelihood of an accurate conviction is seriously

diminished.” Schriro, 542 U.S. at 352 (citation omitted).

The Court went on to examine and reject the Ninth Circuit’s

conclusion that Ring fell within the second Teague exception,

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concluding that judicial fact-finding under a reasonable doubt

standard was not shown to “seriously diminish” the accuracy

of the sentencing. Schriro, 542 U.S. at 355-356.

The key to Schriro’s effect on the present case is its

recognition of the fundamental role that the reasonable doubt

standard plays in assuring accuracy in criminal proceedings.

The Court had no question that Apprendi rights were

“fundamental.” Schriro, 542 U.S. at 355-357. The question

became whether the difference between judicial and jury fact

finders jeopardized the accuracy of convictions sufficiently

to require retroactive application of the new rule. The analysis

of the competing strengths and weaknesses of fact finders

was premised upon the finding beyond a reasonable doubt.

The jury trial right only applied prospectively because judicial

fact finding beyond a reasonable doubt adequately protected

accuracy. With only a preponderance standard, the protection

of accuracy is as lacking as the right to a jury.

In many other contexts before Schriro, the Supreme

Court has emphasized the central role of the reasonable doubt

standard in protecting the rights of the accused and the

accuracy of criminal convictions. In finding that reasonable

doubt instructional error could not be harmless, the Court

articulated the vital role of the reasonable doubt standard in

avoiding convictions based on factual error. Cage v.

Louisiana, 498 U.S. 39 (1990). In Winship, the Court stated

that the reasonable doubt standard “plays a vital role in the

American scheme of criminal procedure.” Winship, 397 U.S.

358, 363 (1970). “[I]t is a prime instrument for reducing the

risk of convictions resting on factual error.” Cage, 498 U.S.

at 39-40 (1990). The reasonable doubt standard is an interest

of “transcending value.” Winship, 397 U.S. at 364; accord

Speiser v. Randall, 357 U.S. 513, 525-26 (1958).

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As such, Apprendi establishes a new, watershed rule of

constitutional procedure that should be applied retroactively

under the Jeague rule on retroactivity because the reasonable

doubt element of Apprendi is precisely the type of rule

covered by Teague’s second exception.

c. Blakely Establishes A New, Watershed Rule Of

Constitutional Procedure That Should Be

Applied Retroactively Under The Teague Rule On

Retroactivity

Similarly, Blakely represents a new constitutional rule

_of criminal procedure under Teague v. Lane, 489 U.S. 288,

299- 301 (1989) which this Court should apply retroactively.

_ See generally \s Blakely v. Washington Retroactive?, 27

CARDOZO L. REV. 424 (2005); Justice for All: Analyzing

Blakely Retroactivity and Ensuring Just Sentences in

Pre-Blakely Convictions, 66 OHIO ST. L. J. 875 (2005);

Reasonable Doubt in the Rear-View Mirror: The Case for

Blakely-Booker Retroactivity in the Federal System, 2005

WIS. L. REV. 1139 (2005).

First, Blakely is a new rule. See United States v. Price,

400 F.3d 844 (10th Cir. 2005).

Second, like Apprendi, it is a watershed rule. In Teague,

the Court recognized the general principle that new

procedural rules are not appiied retroactively to cases on

collateral review, but identified an exception for “watershed”

decisions critical to the fundamental fairness and accuracy

of the criminal process. Teague, 489 U.S. at 311.

Many courts, however, are relying on one decision,

Schriro v. Summerlin, 542 U.S. 348 (2004), in deciding that

7

a change in the law requiring that juries, rather than judges,

make the factual findings on which a sentence is based does

not announce a watershed rule of criminal procedure.

See, e.g., Price, 400 F. 3d at 848-849. But, the holding in

Schriro should not prevent such a determination in this case.

In Schriro, decided the same day as Blakely, the Supreme

Court ruled that Ring v. Arizona, 536 U.S. 584 (2002) is not

retroactively applicable to cases on collateral review.

The Supreme Court in Ring applied Apprendi to require jury

findings of aggravated facts supporting a death sentence, but

the only issue in that case involved the identity of the fact

finder, since the statute at issue there already required the

judge to make findings of aggravated facts supporting death

beyond a reasonable doubt. Ring, 536 U.S. at 609. In turn,

Schriro involved the finder of fact but not the standard of

proof. Writing for the majority, Justice Scalia states in Schriro

that “[t]he right to jury trial is fundamental to our system of

criminal procedure,” Schriro, 542 U.S. at 358, and as the

dissenting justices note, “[t]he majority does not deny that

Ring meets the first criterion of Teague, that its holding is

‘implicit in the concept of ordered liberty.” Schriro. 542

U.S. at 359. The Court declined to find retroactivity instead

on a secondary inquiry involving accuracy, explaining that

the question was not whether juries or judges were more

accurate finders of fact, but “whether judicial fact finding so

‘seriously diminishe[s]’ accuracy that there is an

‘impermissibly large risk’” of punishing conduct the law does

not reach.” Schriro, 542 U.S. at 355 - 356 (citations omitted).

The Schriro Court found the evidence to be “simply too

equivocal to support that conclusion.” Schriro, 542 U.S. at

356.

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In contrast to Ring, Blakely’s application to the federal

Sentencing Guidelines requires jury findings beyond a

reasonable doubt. The Supreme Court explained the crucial

nature of this right in Winship:

The reasonable-doubt standard plays a vital rule

in the American scheme of criminal procedure. It

‘iS a prime instrument for reducing the risk of

convictions resting on factual error ... “[A]

person accused of a crime. . . would be at a severe

‘ disadvantage, a disadvantage amounting to a lack

of fundamental fairness, if he could be adjudged

guilty and imprisoned for years on the strength of

the same evidence as would suffice in a civil case.

There is always in litigation a margin of error,

representing error in fact finding, which both

parties must take into account. Where one party

has at stake an interest of transcending value—

—as a criminal defendant his liberty—this margin

of error is reduced as to him by the process of

placing on the other party the burden of ...

persuading the fact finder at the conclusion of the

trial of his guilt beyond a reasonable doubt. Due

process commands that no man shall lose his

liberty unless the Government has borne the

burden of ... convincing the fact finder of his

guilt.” To this end, the reasonable-doubt standard

is indispensable, for it “impresses on the trier of

fact the necessity of reaching a subjective state of

certitude of the facts in issue.

In re Winship, 397 U.S. at 363-64 (1970) (citations omitted).

A defendant who exercises the right to jury trial is also

protected by the right to confront witnesses, to remain silent,

to compel the presence of witnesses and to present a defense,

as well as evidentiary rights such as hearsay rules.

If a defendant pleads guilty, proceedings under Fed. R. Crim.

P. || require the court to obtain a waiver from the defendant

of those rights explicitly and in person. As recognized by

the Court in Blakely, the right not to have one’s maximum

sentence substantially increased absent these protections is

equally as crucial to liberty and due process as the right not

to be convicted without such protections. The reasonable

doubt standard, so described, “is a prime instrument for

ensuring the accuracy of any conviction.” Is Blakely v.

Washington Retroactive?, 27 CARDOZO L. REV. 424, 451

(2005). “It also implicates fundamental fairness because the

accused would face a severe disadvantage if he could be

convicted and imprisoned based only on a preponderance of

the evidence.” /d. “Like“the right to counsel, which is a

bedrock rule essential to fundamental fairness, the reasonable

doubt standard is a bedrock rule vital to accurate resolution

of all criminal cases.” /d.

Accordingly, this Court should find that Blakely, in

contrast to Ring, recognizes a;new watershed rule of

constitutional procedure applicable to cases pending on

collateral review.

d. Summary

For the above-cited reasons, the Supreme Court should

take this opportunity to decide that Apprendi and Blakely both

apply retroactively to cases on collateral review. Unless and

until the Supreme Court exercises its supervisory power as

such, the lower courts will undoubtably continue to hold that

22

these important cases are not retroactive which, as in argued

herein, is unfair. As of now, a Petitioner such as Corwin

Gaines, who in this regard is the victim of nothing more than

bad timing in that his case became final before the

Apprendi and Blakely decisions issued, is left unable to

advance viable constitutional challenges to his conviction

simply because the current laws regarding habeas petitions

and retroactivity are so limiting. As was so well predicted in

Justice Brennan’s dissent in Teague, good habeas issues, such

as the Petitioner’s, are being quashed ab initio by the modern

draconian landscape of retroactivity as applied to habeas

corpus petitions. See Teague, 489 U.S. at 325-346 (Brennan,

J., dissenting). In recognition of this inherent unfairness, the

Supreme Court should decide that these cases do apply

retroactively; and, in so doing, should decide that the

Petitioner’s sentence is unconstitutional.

CONCLUSION

For the reasons stated above, the petition for a writ

certiorari should be granted and the case set down for

argument.

Respectfully submitted,

Ropert D. DIMLER Patricia A. DOWNEY

11 Russell Street Counsel of Record

Plymouth, MA 02360 THE LAw OFFICE OF

(508) 747-4348 Patricia A. DOWNEY

11 Russell Street

Plymouth, MA 02360

(508) 830-1616

Counsel for Petitioner