Petition for Writ of Certiorari — Valentine v. United States (No. 07-1426)

Supreme Court, U.S.

P FILED

071426 MAY 15 2008

v OFFICE OF THE CLERK

No. O7-_____

IN THE .

Supreme Court of the Anited States

JiMMY RAY VALENTINE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

LAWRENCE D. ROSENBERG

JENNIFER L. SWIZE

Counsel of Record

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Counsel for Petitioner

May 15, 2008

i

QUESTIONS PRESENTED

Based on its own factual findings by a

preponderance of the evidence under the then-

mandatory Federal Sentencing Guidelines, the

district court sentenced Petitioner to prison for 23

years more than what would have been allowed based

on the facts found by the jury. Petitioner’s sentence

became final after Apprendi v. New Jersey but before

United States v. Booker.

The questions presented are:

1. Did Booker announce a new rule or was it

dictated by Apprendi?

. If Booker announced a new rule, is it a

watershed rule of criminal procedure entitling

it to retroactive application?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

A. Petitioner’s Conviction, Sentence, And

Direct Appeal

B. Petitioner’s Motion For Relief Under

28 U.S.C. § 2255

C. The Court Of Appeals’ Decision

REASONS FOR GRANTING THE PETITION

I. BOOKER’S APPLICABILITY ON

COLLATERAL REVIEW IS A QUESTION

OF GREAT NATIONAL IMPORTANCE,

IMPLICATING FUNDAMENTAL |

CONSTITUTIONAL RIGHTS

A. Whether Booker Applies On Collateral

Review Is A Question Of National

Importance Implicating The

Fundamental Constitutional Rights To

Due Process And Trial By Jury

This Court Recognized The Importance

Of Booker’s Applicability On Collateral

Review When It Granted Certiorari In

lll

TABLE OF CONTENTS

(Continued)

Page

C. The Question Of Booker's Applicability

On Collateral Review Is Ripe For This

Court’s Consideration

Il. THE SIXTH CIRCUIT'S REFUSAL TO

APPLY BOOKER ON COLLATERAL

REVIEW CONFLICTS WITH THIS

COURT’S PRECEDENT

A. The Court Of Appeals’ Holding That

Booker Is A New Rule Conflicts With

This Court’s Precedent

The Court Of Appeals’ Decision Also

Conflicts With This Court’s Precedent

That, Even If BookerIs A New Rule, It

Is A Watershed Rule Of Criminal

Procedure Warranting Retroactive

Application

CONCLUSION

APPENDIX

Valentine v. United States,

488 F.3d 325 (6th Cir. 2007)

Verdict Form and Special Interrogatories

(W.D. Mich. Feb. 11, 2000)

Judgment in a Criminal Case

(W.D. Mich. May 24, 2000)

United States v. Valentine,

70 F. App’x 314 (6th Cir. 2003)

lv

TABLE OF CONTENTS

(Continued)

Order on Motion for Leave to Amend ?

(W.D. Mich. July 21, 2004)

Opinion on 28 U.S.C. § 2255 Motion

(W.D. Mich. Aug. 12, 2004)

Order on 28 U.S.C. § 2255 Motion

(W.D. Mich. Aug. 12, 2004)

Order on Certificate of Appealability

(W.D. Mich. Sept. 30, 2004)........................... 110a

Order on Certificate of Appealability

(6th Cir. Apr. 18, 2005)

Order on Petition for Rehearing

CECE Ga Ss FF tT fivvn chen cncecsbavccensovencedeseces 116a

Letter on Extension of Time to File Petition for

Writ of Certiorari, from Supreme Court

Clerk (Feb. 21, 2008)

Second Superseding Indictment

(W.D. Mich. July 22, 1999)

Transcript Excerpt

(W.D. Mich. Feb. 9, 2000)

Transcript Excerpt

(W.D. Mich. May 19, 2000)

Motion for Leave to Amend

(W.D. Mich. July 15, 2004)

Notice of Appeal

(W.D. Mich. Aug. 29, 2004)

Vv

TABLE OF AUTHORITIES

FEDERAL CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000)

Blakely v. Washington,

542 U.S. 296 (2004)

Burton v. Stewart,

127 S. Ct. 793 (2007)

Burton v. Waddington,

547 U.S. 1178 (2006)

Cirtlo-Munoz v. United States,

404 F.3d 527 (ist Cir. 2005)

Cunningham v. California,

BO Wh es CT os ovis iccoscncccecdsesesesccscspesentes 23

In re Fashina,

486 F.3d 1300 (D.C. Cir. 2007)

Goeke v. Branch,

514 U.S. 115 (1995)

Guzman v. United States,

404 F.3d 139 (2d Cir. 2005)

Hankerson v. North Carolina,

432 U.S. 233 (1977)

Hicks v. United States,

146 F. App’x 396 (11th Cir. 2005)

Humphress v. United States,

398 F.3d 855 (6th Cir. 2005)

vi

TABLE OF AUTHORITIES

(Continued)

Ivan V. v. City of New York,

407 U.S. 203 (1972)

Jones v. United States,

526 U.S. 227 (1999)

Lloyd v. United States,

407 F.3d 608 (8d Cir. 2005)

McReynolds v. United States,

397 F.3d 479 (7th Cir. 2005)

Mullaney v. Wilbur,

421 U.S. 684 (1975)

Never Misses A Shot v. United States,

413 F.3d 781 (8th Cir. 2005)

Ring v. Arizona,

536 U.S. 584 (2002)

Rita v. United States,

127 S. Ct. 2456 (2007)

Saffle v. Parks,

494 U.S. 484 (1990)

Scharadt v. Payne,

414 F.3d 1025 (9th Cir. 2005)

Schriro v. Summerlin,

542 U.S. 348 (2004)

Teague v. Lane,

EN BF I Tc hi vcuickeiincads sdansdceddcaccnavnchehs 19

vii

TABLE OF AUTHORITIES

(Continued)

Page

-

United States v. Bellamy,

411 F.3d 1182 (10th Cir. 20085)....................... 17

United States v. Booker,

543 U.S. 220 (2005) passim

United States v. Cruz,

423 F.3d 1119 (9th Cir. 2005)

United States v. Davis,

397 F.3d 340 (6th Cir. 2005)

United States v. Gentry.

432 F.3d 600 (5th Cir. 2005)

United States v. Hall,

411 F.3d 651 (6th Cir. 2005)

United States v. Hamm,

400 F.3d 336 (6th Cir. 2005)

United States v. Hernandez,

436 F.3d 851 (8th Cir. 2006)

United States v. Huerta-Rodriguez,

355 F. Supp. 2d 1019 (D. Neb. 2005)

United States v. Morris,

429 F.3d 65 (4th Cir. 2005)

United States v. Price,

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

Varela v. United States,

400 F.3d 864 (11th Cir. 2005)

viii

TABLE OF AUTHORITIES

(Continued)

Page

Whorton v. Bockting,

127 S. Ct. 1173 (2007) 19, 24, 25

In re Winship,

397 U.S. 358 (1970)

STATE CASES

Isaac v. State,

911 So. 2d 813 (Fla. Dist. Ct. App. 20U5)

Smart v. State,

146 P.3d 15 (Alaska Ct. App. 2006)

CONSTITUTIONS AND STATUTES

U.S. Const. amend. V

U.S. Const. amend. VI

21 U.S.C. § 841

21 U.S.C. § 846

a ee ie ae 1

28 U.S.C. § 1291

28 U.S.C. § 1331

28 U.S.C. § 2255

ix

TABLE OF AUTHORITIES

(Continued)

Page

OTHER

Admin. Office of the U.S. Courts, Report on the

Impact of the Booker Case on the Workload

of the Federal Judiciary (2006), available at

http://www.uscourts.gov/library/

BookerReport.pdf

Robert L. Boone, Comment, Booker Defined:

Examining the Application of United States

v. Booker in the Nation’s Most Divergent

Circuit Courts, 95 Cal. L. Rev. 1079 (2007)...17

Nicholas J. Eichenseer, Comment, Reasonable

Doubt in the Rear-View Mirror: The

Case for Blakely-Booker Retroactivity in

the Federal System, 2005 Wis. L. Rev.

Toby J. Heytens, Managing Transitional

Moments in Criminal Cases, 115 Yale

Rich MUIED whic ciad ouetevenwdbabeveviscsadcsededesveieoonss 12

U.S. Sertencing Guidelines Manual (1998)

Jon Wool, .3evond Blakely: Jmplications of the

Booker Decision for State Sentencing

Systems, 17 Fed. Sent’g Rep. 285, 2005

WL 2922207 (2005)

PETITION FOR WRIT OF CERTIORARI

Jimmy Ray Valentine respectfully petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit

in this case.

OPINIONS BELO'W

The orders of the district court denying

Mr. Valentine’s motions for relief under 28 U.S.C.

§ 2255 (Pet. App. 102a-109a), for leave to amend his

§ 2255 motion (Pet. App. 100a-10la), and for a

certificate of appealability (Pet. App. 110a-113a) are

unreported. The order of the Sixth Circuit granting a

certificate of appealability (Pet. App. 114a-115a) is

unreported. The opinion of the Sixth Circuit is

reported at 488 F.3d 325 (Pet. App. la-55a). The

order of the Sixth Circuit denying the petition for

rehearing en banc (Pet. App. 116a) is unreported. —

JURISDICTION

The Sixth Circuit issued its opinion on May 14,

2007. On December 17, 2007, the Sixth Circuit

denied Mr. Valentine’s petition for rehearing en banc.

On February 21, 2008, Justice Stevens extended the

time to file a petition for a writ of certiorari until May

15, 2008. Pet. App. 117a. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in relevant part: “No person

shall be . . . deprived of life, liberty, or property,

without due process of law... .”

2

The Sixth Amendment to the United States

Constitution provides, in relevant part: “In all

criminal prosecutions, the accused shall enjoy the

right to a ‘speedy and public trial, by an impartial

a

STATEMENT OF THE CASE

This case presents the important and recurring

issue of whether a defendant whose sentence became

final after Apprendi v. New Jersey, 530 U.S. 466

(2000), but before United States v. Booker, 543 U.S.

220 (2005), may invoke Booker on collateral review.

In this case, a divided panel of the United States

Court of Appeals for the Sixth Circuit held that

(1) Booker was a “new rule” not dictated by Apprendi,

and (2) Booker's new rule did not apply retroactively

as a watershed rule of criminal procedure. If Booker

were to apply to this case, as it does to cases on direct

review, Mr. Valentine’s sentence would likely be

significantly reduced because, contrary to Booker, his

maximum sentence was increased based on judicial

findings by a preponderance of the evidence.

A. Petitioner's Conviction, Sentence, And Direct

Appeal

In 1999, a grand jury charged Mr. Valentine and

several others with conspiring to distribute and to

possess with intent to distribute an unspecified

quantity of cocaine, crack cocaine (also known as

cocaine base), and marijuana.! Pet. App. 118a-120a.

1 The text following the conspiracy charge identifies 21 U.S.C.

§§ 846(a), 841(a), and 841(b)(1)(A). The former two provisions

govern the elements of the offense, and the latter—

3

At trial, the district court instructed the jury that the

government was not required to prove drug quantity

as an element of the offense,? and the jury found

Mr. Valentine guilty of the conspiracy charge with

respect to cocaine and crack cocaine. Pet. App. 56a-

57a. Consistent with the court’s instruction, the

verdict did not attribute any particular amount of

drugs to Mr. Valentine. Accordingly, Mr. Valentine

faced a statutory maximum sentence of twenty years’

imprisonment. See 21 U.S.C. § 841(b)(1)(C)

(providing for imprisonment of “not more than 20

years’ if the crime involves an unspecified quantity of

drugs). The Federal Sentencing Guidelines, in turn,

assigned a base offense level of 12 for an unspecified

quantity of drugs, and that level prescribed a

sentencing range of 10 to 16 months’ imprisonment.

See USS. Sentencing Guidelines Manual

§ 841(b)(1)(A)—specifies the penalty for an offense involving at

least 50 grams of crack cocaine (or 5 kilograms or more of

cocaine). The indictment, however, did not specify any quantity.

The penalty provision governing an unspecified quantity of

drugs is § 841(b)(1)(C). A final penalty provision—

§841(b)(1)(B)—governs offenses involving 5 or more grams of

crack cocaine (or 500 grams or more of cocaine).

2 The court stated:

You heard a lot of testimony about quantities,

but the Government is not required to prove

that defendants conspired to distribute or

possess with intent to distribute any particular

amount of cocaine or cocaine base; in other

words, crack cocaine, or marijuana. Quantity is

simply not an element in this offense.

Pet. App. 126a.

J

4

§ 2D1.1(c)(14) & ch. 5, pt. A (Sentencing Table)

(1998).

In sentencing Mr. Valentine, the district court

made two findings under the Sentencing Guidelines,

each by a preponderance of the evidence, that

increased Mr. Valentine’s maximum sentence. Pet.

App. 127a-136a. First, the court found that

Mr. Valentine was responsible for 1.5 kilograms of

crack cocaine, which resulted in a base offense level

of 38—as opposed to the base offense level of 12 for

an unspecified quantity. Pet. App. 128a-131a.

Second, while “unconvinced” that Mr. Valentine was

“an organizer/leader” of the conspiracy, the district

court nonetheless found that Mr. Valentine played an

aggravating role in the offense, for which the court |

increased his offense level by 2 points to level 40. See

U.S. Sentencing Guidelines Manual § 3B1.1(c); Pet.

App. 133a-134a. Because Mr. Valentine was a first-

time offender, the district court placed Mr. Valentine

in Crirainal History Category I. Pet. App. 135a. For

that category, along with offense level 40, the

Guidelines prescribed a sentencing range of 292 to

365 months’ imprisonment. Pet. App. 135a.

The district court observed that the range

essentially amounted to “life in prison.” Pet. App.

128a. The court denounced the long sentence as not

“fair.” Pet. App. 128a; see also Pet. App. 68a (stating

that the Guidelines “call[ed] for much too severe a

punishment”). Because, however, application of the

Guidelines was mandatory, the court concluded that

the long sentence was nothing it could “have

anything to say about,” Pet. App. 128a, and the court

sentenced Mr. Valentine to 292 months in prison, the

lowest end of the prescribed range, Pet. App. 135a.

5

This sentence was 52 months longer than the 240-

month (20-year) statutory maximum governing drug

convictions based on an unspecified quantity, and at

least 276 months (23 years) longer than the 10-to-16-

month Guidelines sentence consistent with the facts

found by the jury.

On appeal, Mr. Valentine argued, among other

things, that his sentence should be vacated and

remanded in light of Apprendi, which this Court

decided while his appeal was pending. Pet. App. 96a.

(Thus, Apprendi was available to Mr. Valentine on

direct appeal.) Apprendi held that any fact, other

than a prior conviction, that increases the maximum

penalty for a crime must be proven to a jury beyond a

reasonable doubt. Apprendi, 530 U.S. at 490. The

Sixth Circuit rejected Mr. Valentine’s Apprendi

argument.

The Sixth Circuit acknowledged that the district

court plainly erred by instructing the jury that drug

quantity was not an element that the government

had to prove and by sentencing Mr. Valentine beyond

the 20-year statutory maximum governing drug

convictions involving an _ unspecified quantity.

Nevertheless, the Sixth Circuit determined that the

error “did not seriously affect the fairness, integrity,

or public reputation of judicial proceedings’ because it

is clear beyond a reasonable doubt that any jury

would have found that the conspiracy involved more

than 5 grams of crack,” thereby extending the

statutory maximum for the offense to 40 years. Pet.

App. 99a (quoting United States v. Cotton, 535 U.S.

625, 632-33 (2002)); see 21: U.S.C. § 841(b)(1)(B)

(setting penalty of 5 to 40 years for offense involving

5 or more grams of cocaine base). The Sixth Circuit

6

therefore affirmed Mr. Valentine’s conviction and

sentence. Pet. App. 99a.

B. Petitioner's Motion For Relief Under 28 U.S.C.

§ 2255

After exhausting his direct appeals, Mr. Valentine,

acting pro se, timely moved for relief under 28 U.S.C.

§ 2255, alleging ineffective assistance of counsel. Pet.

App. 102a. Shortly thereafter, this Court decided

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

unconstitutional the application of Washington’s

determinate sentencing law, which permitted a court

to make findings to impose a sentence beyond the

“standard range.” Accordingly, within the time

period for seeking § 2255 relief, Mr. Valentine sought

leave to amend his § 2255 petition to raise a

sentencing claim under Blakely. Pet. App. 137a-

138a. Namely, Mr. Valentine relied on Blakely to

assert that his sentence violated the Sixth

Amendment because it was increased based on the

district court’s findings of drug quantity and role in

the offense. Pet. App. 137a-138a. The district court

denied Mr. Valentine’s motion for leave to amend,

determining that Blakely did not apply on collateral

review and, therefore, that an amendment to raise

his sentencing claim would be futile. Pet. App. 100a-

101la. The court also rejected Mr. Valentine’s claim of

ineffective assistance of counsel. Pet. App. 104a-

108a. The district court had jurisdiction pursuant to

28 U.S.C. §§ 1331 and 2255.

Mr. Valentine filed an application for a certificate

of appealability, which the district court denied. Pet.

App. 110a-113a. Mr. Valentine thereafter filed a pro

se appeal with the Sixth Circuit. Pet. App. 114a-

1

115a. While that appeal was pending, this Court

decided Booker, which held unconstitutional the

mandatory application of the Federal Sentencing

Guidelines. The Sixth Circuit construed

Mr. Valentine’s pro se appeal as an application for a

certificate of appealability and granted a certificate

on both Mr. Valentine’s ineffective assistance of

counsel claim and his request to amend his § 2255

motion to raise his sentencing claim. Pet. App. 114a-

115a. The Sixth Circuit had jurisdiction pursuant to

28 U.S.C. § 1291.

C. The Court Of Appeals’ Decision

On appeal, a divided panel of the Sixth Circuit

concluded that Booker announced a “new rule” that

did not apply on collateral review to petitioners, like

Mr. Valentine, whose convictions became final aiter

Apprendi but before Booker—therefore, the panel

majority rejected Mr. Valentine’s sentencing claim.

Pet. App. 1la-55a. The majority nonethei:ss

acknowledged that, if Booker did_ apply,

Mr. Valentine stated a “cognizable Booker claim ]”

entitling him to be resentenced because his sentence

had been increased based on facts found by a judge

by a preponderance rather than by a jury beyond a

reasonable doubt. Pet. App. 5a.

In reaching its conclusion on whether Booker

applied, and noting that “new rules” generally do not

apply on collateral review, the majority first

considered whether the rule of Booker was in fact

“new.” Pet. App. 5a-9a. The majority held that

Booker is a new rule, even in light of Apprendi. Pet.

App. 9a. The majority further held that the “new

rule” of Booker did not apply on collateral review

8

because it was neither a substantive rule nor a

watershed rule of criminal procedure, the two types

of new rules that may apply retroactively on

collateral review. Pet. App. 10a-11a.

In a lengthy dissent, Judge Martin disagreed with

both of the majority’s holdings. As to the majority’s

new-rule analysis, he stated that “neither Blakely

nor Booker created a new rule, but merely applied

the rule already laid down in Apprendi.” Pet. App.

30a (Martin, J., concurring in part & dissenting in

part). Elaborating, he stated that Booker “simply

applied the same legal principles . . . articulated in

Apprendi and Blakely to a new sentencing scheme.”

Pet. App. 4la. “Revolutionary as the holding in

Booker may have seemed,” Judge Martin continued,

“the true upheaval actually occurred in Apprendi

through its resuscitation of the Sixth Amendment

jury trial right.” Pet. App. 41a. Therefore, Judge

Martin asserted, Booker should apply to habeas

petitioners, like Mr. Valentine, “whose convictions

became final after the Court issued its decision in

Apprendi.” Pet. App. 30a.

As to the majority’s holding that Booker does not

apply on collateral review even as a watershed rule

of criminal procedure, Judge Martin noted that “a

strong argument can. . . be made that” Booker

should be applied on collateral review as a watershed

rule because it is a rule “clear'y . . . implicating

fundamental fairness and accuracy.” Pet. App. 46a-

47a n.10.

The Sixth Circuit denied Mr. Valentine’s petition

for rehearing en_ banc. Pet. App. 116a.

Mr. Valentine now petitions this Court for a writ ui

certiorari.

9

REASONS FOR GRANTING THE PETITION

This Court should grant the petition for two

reasons.

First, as this Court recognized in granting

certiorari on the similar Blakely question presented

in Burton v. Waddington, 547 U.S. 1178 (2006),

decided sub nom. Burton v. Stewart, 127 S. Ct. 793

(2007), the question of whether Booker applies on

collateral review is of great national importance. It

implicates the fundamental constitutional rights of

due process and trial by jury and affects numerous

prisoners nationwide. Moreover, the Booker and

Blakely questions have generated a conflict among

the courts. This Court’s resolution is warranted.

Second, the language of this Court’s precedent

shows that the Sixth Circuit and other courts of

appeals have erred in not applying Booker on

collateral review. This Court’s decisions show that

Booker is not a new rule but merely was dictated by

Apprendi. Even if Booker had announced a new rule,

this Court’s decisions further show that Booker's

effect on criminal proceedings entitles it to

retroactive application as a watershed rule of

criminal procedure.

I. BOOKER’S APPLICABILITY ON COLLATERAL

REVIEW IS A QUESTION OF GREAT

NATIONAL IMPORTANCE, IMPLICATING

FUNDAMENTAL CONSTITUTIONAL RIGHTS

This case presents the Court with an opportunity

to resolve the important and recurring issue of

whether Booker applies on cc'lateral review. A

decision on that issue will also likely provide

10

definitive guidance on whether Blakely applies on

collateral review.

This Court recognized the importance of this

Booker issue when it granted certiorari in Burton to

address the similar Blakely question, but the Court

was unable to address the question because that

petitioner’s claim was procedurally barred. Since

Burton, the issue of Bookers and Blakelys

applicability on collateral review has continued to

recur in and divide the courts. Therefore, this Court

should grant the petition to decide the issue squarely

presented by this case of whether Booker applies on

collateral review.

A. Whether Booker Applies On Collateral Review

Is A Question Of National Importance

Implicating The Fundamental Constitutional

Rights To Due Process And Trial By Jury

As this Court has noted, the rights involved in the

Apprendi line of cases “are constitutional protections

of surpassing importance: the proscription of any

deprivation of liberty without ‘due process of law,’

and the guarantee that ‘[i]n all criminal prosecutions,

the accused shali enjoy the right to a speedy and

public trial, by an impartial jury.” Apprendi, 530

U.S. at 476-77 (citations omitted; alteration in

original). These protections are “basic precepts,

firmly rooted in the common law” that “have their

genesis in the ideals [of] our constitutional tradition,”

Booker, 543 U.S. at 230, 238, and “have been

acknowledged by courts and treatises since the

earliest days of graduated sentencing,” Blakely, 542

U.S. at 302. Accordingly, at common law, a judge

could not “impose a more severe sentence than the

11

maximum authorized by the facts found by the jury.”

Apprendi, 530 U.S. at 482 n.9. :

This traditional restriction on judicial power,

resuscitated by Apprendi, is not a “mere procedural

formality.” Blakely; 542 U.S. at 306. It reflects a

fundamental judgment by the Framers of the

Constitution about how to allocate authorit; in our

constitutional system. See Jones v. United States,

526 U.S. 227, 244 (1999) (noting that “tension

between jury powers and powers exclusively judicial

would likely have been very much to the fore in the

Framers’ conception of the jury right”). As the Court

explained in Blakely, the right to have a jury find,

beyond a reasonable doubt, all facts essential to the

punishment imposed “reflects .. . the need to give

intelligible content to the right of jury trial. That

right is... a fundamental reservation of power in our

constitutional structure. Just as suffrage ensures the

people’s ultimate control in the legislative and

executive branches, jury trial is meant to ensure

their control in the judiciary.” 542 U.S. at 305-06.

Booker held that mandatory application of the

Federal Sentencing Guidelines was inconsistent with

these constitutional rights. Under Booker, federal

defendants are now being sentenced in a manner

consistent with the Constitution. Booker also

explicitly permitted defendants whose sentences were

still on direct appeal, like ti:e defendants in Booker,

to seek resentencing in that constitutional manner.

543 U.S. at 268 (citing Griffith v. Kentucky, 479 U.S.

314, 328 (1987)).

Yet Booker is of importance to more than those

defendants sentenced now and in the future. Booker

“mean[s] that virtually every federal sentence handed

12

~down during the Jast twenty years [when the

mandatory Federal Sentencing Guidelines were in

effect] had been imposed in an illegal fashion.” Toby

J. Heytens, Managing Transitional Moments in

Criminal Cases, 115 Yale L.J. 922, 940 (2006)

(emphasis added). Thus, the question of whether

Booker applies to prisoners already on collateral

review is “something more than a purely academic

exercise.” Pet. App. 50a (Martin, J., concurring in

part & dissenting in part). It concerns how long a

defendant “will spend in prison based on facts that

were not found by a jury beyond a reasonable doubt.”

and for numerous defendants still in prison the issue

“carries profound implications regarding both the

length of sentences and the methods by which they

are imposed.” Pet. App. 49a (Martin, J., concurring

in part & dissenting in part).

Mr. Valentine’s case illustrates the profound

implications that Booker's application would have for

defendants seeking to invoke Booker on collateral

review, and why guidance from this Court is

warranted. Based on the jury verdict alone, which

contained no finding of an amount of drugs,

Mr. Valentine’s sentencing range under the

Guidelines would have been 10 to 16 months.

Because, however, the Guidelines required the

district court to increase Mr. Valentine’s maximum

sentence based on the court’s findings of drug

quantity and role in the offense, Mr. Valentine’s

sentencing range became 292 to 365 months, and he

was sentenced to 292 months.

If Mr. Valentine were resentenced consistent with

Booker, he would likely receive a sentence shorter

than the 24-year sentence he is serving—indeed,

. 13

closer, if not significantly closer, to the 10 to 16

‘months authorized. by the jury’s verdict. While the

district court would have broad discretion in

imposing a sentence within the statutory range (here,

up to 20 years), it would not be obligated to adhere to

the range prescribed by the Guidelines even with its

judicial findings of drug quantity and role in the

offense. Notably, at Mr. Valentine’s sentencing, the

judge expressed strong disagreement with that

range, asserted that such a lengthy sentence was

unfair, and imposed the minimum allowed. Pet. App.

128a-135a. It is therefore likely that, under Booker,

the district court would sentence Mr. Valentine to

some amount less, if not substantially less, than the

20-year statutory maximum. Cf United States v.

Davis, 397 F.3d 340, 349 (6th Cir. 2005) (vacating for

resentencing under Booker when “the district court’s

comments at sentencing make it seem likely . . . that

Defendant would have gotten [a shorter sentence]

had the court used its discretion”); accord United

States v. Hall, 411 F.3d 651, 653 (6th Cir. 2005);

United States v. Hamm, 400 F.3d 336, 340 (6th Cir.

2005).

Accordingly, the applicability of Booker on

collateral review is significant for Mr. Valentine and

other habeas petitioners. Of course, it is unlikely

that every petitioner seeking relief based on Booker

would benefit from this Court holding that Booker

applies on collateral review. As an initial matter, if

the Court determines that Apprendi dictated Booker,

that ruling would not reach petitioners whose

sentences became final before Apprendi was decided.

Even for those petitioners with sentences governed

by Apprendi, this Court’s decision would not affect

14

those without sentence enhancements implicating

Blakely or Booker. See Booker, 543 U.S. at 275-76

(Stevens, J., dissenting). Nonetheless, the number of

potentially affected petitioners makes the issue

important well beyond this single case.*

In addition to the significance of the Booker issue

to numerous prisoners nationwide, this issue and the

constitutional rights that are involved broadly

implicate important societal values. As Judge Martin

observed in dissent below, “lojf . . . greater

importance than any numerical disparities in the

lengths of sentences .. . is the less concrete but more

profound value of imposing criminal sentences only

after ensuring that vital, centuries-old Constitutional

guarantees have been met.” Pet. App. 53a. “[T]he

Apprendi line of cases,” Judge Martin continued,

“means much more than how long the government

can send a defendant to jail—it speaks volumes about

how we, as a democratic society, are able to follow the

strictures that represent the very backbone of our

legal and Constitutional system.” Pet. App. 53a-54a.

To give effect to these important societal values

embodied in the Constitution, this Court should

3 Notably, while the number of prisoners standing to benefit

from the application of Booker on collateral review is significant,

it is not so great as to overwhelm the courts. Even with the

increased number of § 2255 motions since Booker was decided,

the judiciary has been able to “handle{} the increased workload

flowing from Booker without any additional funding.” See

Admin. Office of the U.S. Courts, Report on the Impact of the

Booker Case on the Workload of the Federal Judiciary 3 (2006),

available at http://www.uscourts.gov/library/BookerReport.pdf.

15

grant the petition and determine whether Booker

applies on collateral review.

B. This Court Recognized The Importance Of

Booker’s Applicability On Collateral Review

When It Granted Certiorari In Burton

This Court came close to resolving the issue of

Booker's applicability when it granted certiorari in

Burton, “to determine whether [the] decision in

Blakely v. Washington announced a new rule [in

light of Apprendi| and, if so, whether it applie[{d]

retroactively on collateral review.” Burton v.

Stewart, 127 S. Ct. 798, 794 (2007) (per curiam)

(citation omitted). Burton was likely to provide

guidance on the similar Booker issue because Blakely

and Booker are similarly reasoned and based on the

same constitutional premise—that judicial

factfinding by a preponderance of the evidence at

sentencing can violate the Sixth Amendment. See

Booker, 543 U.S. at 226 (considering “[w]hether the

Sixth Amendment is violated by the imposition of an

enhanced sentence under the United States

Sentencing Guidelines based on the sentencing

judge’s determination of a fact (other than a prior

conviction) that was not found by the jury or

admitted by the defendant”); Blakely, 542 U.S. at 298

(“We consider whether [judicial factfinding] violated

petitioner’s Sixth Amendment right to trial by jury.”);

see also Booker, 543 U.S. at 233 (holding that “there

is no distinction of constitutional significance

between the Federal Sentencing Guidelines and the

Washington procedures at issue in [ Blakely”).

The Court, however, never addressed the merits of

the questions presented in Burton. In that case, the

16

sentencing challenge was raised in an unauthorized

“second or successive” habeas petition, which

deprived the district court of jurisdiction. Surton,

127 S. Ct. at 796. That, in turn, precluded the Court

from considering the Blakely issue, and accordingly

no light was shed on whether Booker might apply on

collateral review. Jd.

This case presents the Court with an opportunity

to answer the Booker question. In addition to

providing definitive guidance on Booker's

applicability, the Court’s answer could also provide

definitive guidance on Blakelys applicability. The

same reasons that warranted review in Burton

warrant review here.

C. The Question Of Booker's Applicability On

Collateral Review Is Ripe For This Court’s

Consideration

Whether Booker applies on collateral review is a

question that will now benefit only from this Court’s

consideration; further percolation in the courts of

appeals is unlikely to be of assistance. Nine federal

courts of appeals have published opinions on whether

Apprendi dictated Booker and, if not, whether Booker

applies retroactively. See Pet App. la-55a; Guzman

v. United States, 404 F.3d 139, 144 (2d Cir. 2005);

Lloyd v. United States, 407 F.3d 608, 615-16 (3d Cir.

2005); United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005); United States v. Gentry, 432 F.3d 600,

605-06 (5th Cir. 2005); McReynolds v. United States,

397 F.3d 479, 481 (7th Cir. 2005); Never Misses A

Shot v. United States, 413 F.3d 781, 783 (8th Cir.

2005) (per curiam); United States v. Cruz, 423 F.3d

1119, 1120 (9th Cir. 2005) (per curiam); United

17

States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir.

2005); see also Hicks v. United States, 146 F. App’x

396, 398 (11th Cir. 2005) (per curiam) (unpublished

opinion). Courts of appeals have also addressed the

question of Booker's applicability on collateral review

for petitioners sentenced before Apprendi. See In re

Fashina, 486 F.3d 1300, 1306-07 (D.C. Cir. 2007);

Cirilo-Mujioz v. United States, 404 F.3d 527, 533 (1st

Cir. 2005); Varela v. United States, 400 F.3d 864, 868

(11th Cir. 2005) (per curiam); see also Humphress v.

United States, 398 F.3d 855, 860 (6th Cir. 2005).

Additionally, courts of appeals have considered

whether Blakely applies on collateral review to

defendants sentenced after Apprendi. See, e.g.,

United States v. Hernandez, 436 F.3d 851, 855 (8th

Cir. 2006); Schardt v. Payne, 414 F.3d 1025, 1038

(9th Cir. 2005); United States v. Price, 400 F.3d 844,

849 (10th Cir. 2005).

Moreover, some state courts have held contrary to

the federal courts of appeals—creating a divergence

of views that would benefit from this Court’s review.

4 Commentators have noted the need for this Court’s review.

See Robert L. Boone, Comment, Booker Defined: Examining the

Application of United States v. Booker in the Nation’s Most

Divergent Circuit Courts, 95 Cal. L. Rev. 1079, 1112 (2007)

(noting courts’ reluctance to apply Booker on collateral review

and concluding that courts will continue to apply Booker

narrowly “[plending clarification by the Supreme Court”);

Nicholas J. Eichenseer, Comment, Reasonable Doubt in the

Rear- View Mirror: The Case for Blakely -Booker Retroactivity in

the Federal System, 2005 Wis. L. Rev. 1137, 1137-38 (noting

“the pressing question of whether the thousands of federal

prisoners sentenced before Blakely and Booker are entitled

to... relief’); Jon Wool, Beyond Blakely: /mplications of the

18

See Smart v. State, 146 P.3d 15, 35 (Alaska Ct. App.

2006) (holding that Blakelys requirement of proof

beyond a reasonable doubt applies retroactively

under state retroactivity standards); Jsaac v. State,

911 So. 2d 813, 814-15 (Fla. Dist. Ct. App. 2005) (per

curiam) (applying Blakely to a petitioner sentenced

after Apprendi and before Blakely).

As the volume and division of the case law suggest,

the Court’s decision on the questions presented in

this case would clarify the state of the law for

numerous prisoners like Mr. Valentine who were

sentenced under the mandatory application of the

Guidelines. Moreover, with the issue already

addressed by most courts of appeals, further

percolation is unlikely to occur or be significant.

Final guidance from this Court is warranted.

Il. THE SIXTH CIRCUITS REFUSAL TO APPLY

BOOXER ON COLLATERAL REVIEW

CONFLICTS WITH THIS COURTS

PRECEDENT

This Court’s review is also warranted because the

Sixth Circuit’s decision conflicts with unequivocal

language in this Court’s opinions showing that

Booker did not announce a “new rule,” but instead

merely applied the principle announced in Apprendi.

Therefore, Booker applies on collateral review to

Booker Decision for State Sentencing Systems, 17 Fed. Sent’g

Rep. 285, 2005 WL 2922207, at *6-7 (2005) (explaining that

neither Blakely nor Booker hold that their rulings apply on

collateral review, which has created unresolved questions for

courts).

19

sentences that became final after Apprendi.

Furthermore, even if Booker had announced a new

rule, Booker's effect on criminal proceedings makes it

a watershed rule of criminal procedure warranting

retroactive application.

A. The Court Of Appeals’ Holding That Booker Is

A New Rule Conflicts With This Court’s

Precedent

Language and reasoning in the Apprendi line of

cases make clear that Apprendi dictated the decision

in Booker. Accordingly, Booker should apply on

collateral review to sentences governed by Apprendi.

“Under the Teague [v. Lane, 489 U.S. 288 (1989),]

framework, an old rule applies both on direct and

collateral review, but a new rule is_ generally

applicable only to cases that are still on direct

review.” Whorton v. Bockting, 127 S. Ct. 1173, 1180

(2007). A decision announces a “new rule” if it

“breaks new ground,” “imposes a new obligation on

the States or the Federal Government,” or was not

“dictated by precedent existing at the time the

defendant’s conviction became final.” Saffle v. Parks,

494 U.S. 484, 488 (1990) (quoting Teague, 489 U.S. at

301) (internal quotation marks omitted). A decision

does not announce a new rule if it merely applies or

was dictated by existing precedent. Gveke v. Branch,

514 U.S. 115, 121 (1995) (per curiam); Teague, 489

U.S. at 307.

Applying these: principles here, it is clear that

Apprendi, not Booker, is the “new rule” that required

the result in Booker. In Apprendi, this Court held

that judicial factfinding that increases the maximum

prison sentence for an offense violates a defendant’s

20

“constitutional right to have a jury find” all facts

essential to the imposition of a particular sentence

“on the basis of proof beyond a reasonable doubt.”

530 U.S. at 475-76.

Because the sentencing enhancement held

unconstitutional in Apprendi was created by statute,

the Court unsurprisingly phrased its holding in

terms of a “statutory” maximum, writing that “[o]ther

than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Jd. at

490; see Booker, 543 U.S. at 238 (explaining that the

Court in Apprendi phrased its holding in terms of a

“statutory maximum” because “we were only

considering a statute in that case”). But the

particular scheme at issue in Apprendi dia not limit

the principle that decision announced—that any fact

that increases a defendant’s maximum sentence must

be found by a jury beyond a reasonable doubt. See

Apprendi, 530 U.S. at 490; see also id. at 494 (“[T]he

relevant inquiry is one not of form, but of effect—does

the required finding expose the defendant to a

greater punishment than that authorized by the

jury’s guilty verdict?”).

In her dissenting opinion in Apprendi, Justice

O’Connor predicted the effect of applying Apprendi to

determinate sentencing schemes like those at issue in

Blakely and Booker. She correctly observed that the

principle underlying Apprendi was that “any fact

(other than prior conviction) that has the effect, in

real terms, of increasing the maximum punishment

beyond an otherwise applicable range must be

submitted to a jury and proved beyond a reasonable

21

doubt.” Jd. at 543-44. Foreseeing how the Court

would apply Apprendi in Blakely and Booker, Justice

O’Connor concluded:

The principle thus would apply not only

to schemes like New Jersey's, under

which a factual determination exposes

the defendant to a sentence beyond the

prescribed statutory maximum, but also

to all determinate-sentencing schemes

in which the length of a defendant’s

sentence within the statutory range

turns on specific factual determinations

(e.g., the . federal Sentencing

Guidelines).

Td. at 544.5

Subsequent decisions applied Apprendi to hold

unconstitutional state sentencing regimes. In Hing v.

Arizona, 536 U.S. 584 (2002), which involved an

Arizona law permitting the trial judge alone to find

the “aggravating factors” required to increase a

defendant’s sentence from life in prison to the death

penalty, the Court reiterated that, “[i]f a State makes

5 Similarly, the dissenting opinion of Justice Breyer, which

defended determinate sentencing laws as “necessary for the fair

functioning of the criminal justice system,” zd. at 555 (Breyer, J.,

dissenting), was premised on the notion that Apprendi sounded

the death knell for such laws. See also Rita v. United States,

127 S. Ct. 2456, 2486 (2007) (Souter, J., dissenting), noting that

Apprendi held that it was impermissible for “a judge alone...

{to] find a fact necessary to raise the upper limit of a sentencing

range,” and that “[flrom the moment Apprendi drew that

line . . . its holding carried apparent implications for the regime

of Guidelines sentencing adopted in 1984.”

22

an increase in a defendant's authorized punishment

contingent on the finding of a fact, that fact—no

matter how the State labels it—must be found by a

jury beyond a reasonable doubt.” Jd. at 602 (citing

Apprendi, 530 U.S. at 482-83). Apprendi was thus all

the authority the Court needed to find the Arizona

law unconstitutional. Jd. at 609 (“Because Arizona’s

enumerated aggravating facters operate as ‘the

functional equivalent of an element of a greater

offense,’ Apprendi, 530 U.S. at 494 n.19, the Sixth

Amendment requires that they be found by a iury.”).

Then, in Blakely, the Court applied Apprend? to

Washington’s sentencing scheme; which permitted a

judge to impose a sentence above the “standard

range” if the judge found “substantial and compelling

reasons justifying an exceptional sentence.” Blakely,

542 U.S. at 299 (citation omitted). In the very first

sentence of the opinion, the Court made clear that its

analysis broke no new ground: “This case requires us

to apply the rule we expressed in Apprendi....” Id.

at 301 (emphasis added). In concluding that the

judicial factfinding allowed by the Washington

scheme was unconstitutional, the Court emphasized,

as it did in Aing, that under “the rule we expressed in

Apprendi,” the “statutory maximum’ .. . 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.” Id. at 301, 303 (citing

Ring, 536 U.S. at 602) (emphasis in original).

Booker was the next decision in this Court’s

Apprendi line of cases. Dealing this time with the

federal sentencing scheme, S#ooker reached the

inevitable conclusion that mandatory application of

the Federal Sentencing Guidelines violated the

23

principle of Apprendi because judicial findings based

on a prepondevance of the evidence, rather than jury

findings by proof beyond a reasonable doubt, could

increase a defendant's maximum sentence. Booker

repeatedly makes clear that it, like Blakely, was

simply another application of Apprendi. For

instance, the Court described the constitutional

defect of the Federal Sentencing Guidelines as an

“Apprendi problem.” Jd. at 234; see also id. at 326

(Breyer, J., dissenting) (“The Court today applies its

decisions in Apprendi v. New Jersey and Blakely v.

Washington to the Federal Sentencing Guidelines.”

(citations omitted; emphasis added)).6 Further, in

holding that its “Apprendi line of cases” applied to

the Guidelines, the Court stated that it was simply

“reaffirm[ing] [its] holding in Apprendi.” Id. at 229,

244; see also id. at 259 (discussing the

constitutionality of the Guidelines in terms of

“Apprend?s requirement’).

Since Booker, the Court has continued to confirm

that Booker merely applied Apprendi to reach its

result. See, e.g., Cunningham v. California, 127

S. Ct. 856, 864 (2007) (acknowledging that Booker

“reaffirmed the rule of Apprendi,” merely “applying”

that, decision to different facts).

As the Court’s decisions show, Booker did not

create a new rule, but merely applied the rule in

6 See also Aita, 127 S. Ct. at 2487 (Souter, J., dissenting)

(emphasis added), noting that, before Booker, “courts with the

foresight to apply Apprendi to the Guidelines” had “require[d]

any additional facts necessary for a possible high subrange

sentence to be charged and submitted to the jury.”

24

Apprendi. Booker should therefore apply to

petitioners, like Mr. Valentine, whose sentences are

governed by Apprendi.

B. The Court Of Appeals’ Decision Also Conflicts

With This Court’s Precedent That, Even If

Booker Is A New Rule, It Is A Watershed Rule

Of Criminal Procedure Warranting Retroactive

Application

Even if the Sixth Circuit had correctly concluded

that Booker announced a new rule notwithstanding

Apprendi, this Court’s review is warranted because

the Sixth Circuit’s holding that Booker was not a

watershed rule misapplied this Court’s precedent.

This Court has made clear that—in rejecting judicial

findings by a preponderance of the evidence for facts

increasing a defendants maximum Guidelines

sentence, in favor of jury findings beyond a

reasonable doubt—Booker announced a watershed

rule. That watershed rule is entitled to retroactive

application.

Unlike the new-rule analysis discussed above,

which focuses on whether a certain result in one case

follows from precedent established in a previous case,

the watershed-rule analysis focuses on the effect that

the rule has on the criminal proceeding. Thuis, as —

this Court has explained, even a new rule can apply

retroactively on collateral review if it is a “watershed

rulfe] of criminal procedure implicating the

fundamental fairness and accuracy of the criminal

proceeding.” Whorton, 127 S. Ct. at 1180 (alteration

in original; internal quotation marks omitted)).

As relevant here, this Court has recognized that

proof beyond a reasonable doubt—the proof that

25

Booker requires, along with jury factfinding, to

increase a_ defendant’s maximum Guidelines

sentence—is fundamental to the fairness and

accuracy of criminal proceedings. To be sufficiently

“fundamental” to warrant retroactive application, the

rule “must alter our understanding of the bedrock

procedural elements essential to the fairness of a

proceeding.” /d. at 1182 (internal quotation marks

omitted). The reasonable-doubt standard that

Booker applies to sentencing proceedings meets this

test because, as the Court has observed, that

standard is a “bedrock ‘axiomatic and elementary’

principle whose ‘enforcement lies at the foundation of

the administration of our criminal law.” Jn re

Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v.

United States, 156 U.S. 432, 453 (1895)). In Winship,

which held that the Constitution required the

beyond-a-reasonable-doubt standard in criminal

proceedings, the Court reasoned that “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.” Jd.

(alteration in original; emphasis added; and internal

quotation marks omitted).

The reasonable-doubt standard is also critical to

the accuracy of criminal proceedings—the other

requirement for retroactive application of a

watershed rule of criminal procedure. This Court has

instructed that the standard “is a prime instrument

for reducing the risk of convictions resting on factual

error.” Jd.; see also Mullaney v. Wilbur, 421°US.

684, 699 (1975) (discussing how the reasonable-doubt

standard promotes “the societal interests in the

reliability of jury verdicts”). Importantly, the Court

has noted that the standard “overcome[s] an aspect of

a criminal trial,” ze., the risk of conviction based on

factual error, “that substantially impairs the truth-

finding function.” Jvan V. v. City of New York, 407

U.S. 203, 205 (1972) (per curiam); see also Winship,

397 U.S. at 362 (noting that the reasonable-doubt

standard “developed to safeguard men from dubious

and unjust convictions, with resulting forfeitures of

life, liberty and property” (internal quotation marks

omitted)).

Indeed, the Court has not hesitated to apply

retroactively its decisions in Winship and Mullaney.

See Hankerson v. North Carolina, 432 U.S. 233, 240

(1977) (applying Mullaney retroactively); Jvan V., 407

U.S. at 205 (applying Winship retroactively).? Of

course, Winship and Mullaney dealt with the

reasonable-doubt standard for the determination of

guilt, not for the imposition of a_ sentence.

Nonetheless, in Apprendi, the Court wrote that

fairness and accuracy concerns—the crucial factors in

retroactivity analysis under 7eague—required that

the reasonable-doubt standard apply in sentencing

proceedings.’ The Court observed that the standard

7 Although these cases were decided prior to Teague, they are

consistent with Teague’s reasoning. See Schriro v. Summerlin,

542 U.S. 348, 357 (2004) (deeming pre-7eague retroactivity

authority “germane” to the Teague analysis).

8 Dismissing any disti=ction between how Winsdip’s protections

apply to determinations of guilt and to sentencing

determinations, the Court wrote:

27

serves fundamental fairness concerns by “provid[ing]

concrete substance for the presumption of

innocence.” Apprendi, 530 U.S. at 484 (quoting

Winship, 397 U.S. at 363). As to accuracy, the Court

emphasized that the reasonable-doubt standard

“reduce[s] the risk of imposing . . . deprivations [of

liberty] erroneously.” Jd.

The fairness and accuracy concerns that supported

the Court’s holding in Apprendi also underlie

Bookers application of the reasonable-doubt

requirement to sentencing proceedings under the

Federal Sentencing Guidelines. See Booker, 543 U.S.

at 243-44. Like Winship and Mullaney, Booker, too,

should be applied retroactively.

In holding otherwise, the Sixth Circuit and other

courts refusing to apply Booker retroactively (see,

e.g., Guzman, 404 F.3d at 143-44; McReynolds, 397

F.3d at 480) have relied on this Court’s holding in

Schriro v. Summerlin, 542 U.S. 348 (2004)—the only

decision in the Apprendi line of cases in which this

Court evaluated retroactivity. Schriro held that Ring

If a defendant faces punishment beyond that

provided by statute when an offense is

committed under certain circumstances but not

others, it is obvious that both the loss of liberty

and the stigma attaching to the offense are

heightened; it necessarily follows that the

defendant should not—at the moment the State

is put to proof of those circumstances—be

deprived of protections that have, until that

point, unquestionably attached.

Apprendi, 530 U.S. at 484.

28

was not a watershed rule. That holding, however,

does not prevent Booker from applying retroactively.

The issue in Ring was solely whether the factfinder

(of aggravating factors authorizing the death penalty)

should be the judge or the jury. Ring did not address

the appropriate standard of proof because the

sentencing scheme at issue already required proof

beyond a reasonable doubt. See Ring, 536 U.S. at 597

& n.4. Booker, on the other hand, held

unconstitutional not only judicial factfinding

requiring an increased sentence under the Federal

Sentencing Guidelines, but also such factfinding by a

preponderance of the evidence. Accordingly, the

conclusion in Schriro—that Ring's requirement of

jury, rather than judicial, fact-finding does not

amount to a watershed rule—does not apply to

Booker. See United States v. Huerta-Rodriguez, 355

F. Supp. 2d 1019, 1028 n.9 (D. Neb. 2005) (“Although

a misallocation of factfinding responsibility (judge

versus jury) does not warrant retroactive application,

the same cannot be said for the retroactivity of

application of a preponderance of evidence standard

as opposed to a reasonable doubt standard.”), affd,

158 F. App’x 754 (8th Cir. 2005).

In rejecting the combination of judicial factfinding

by a preponderance of the evidence in favor of the

combination of jury factfinding beyond a reasonable

doubt, Booker announced a watershed rule. This

Court should grant review and, if it determines that

Booker is a new rule, the Court should further

determine that Booker is a watershed rule that

applies on collateral review.

29

CONCLUSION

The petition should be granted.

Respectfully submitted,

LAWRENCE D. ROSENBERG

JENNIFER L. SWIZE

Counsel of Record

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Counsel for Petitioner

May 15, 2008