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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1470%3A1. Public record. Not legal advice.