Okay I am not really sure what it means, but my boyfriend explained to me that when he was sentenced many years ago they violated his Six Amendment. by giving him time based on facts found by judges rather than a jury. He explained to me that, it is the same thing that is going on with the Booker case, U.S. v Booker, 76 crl 251 (U.S. 2005) Which was the rule on January 12, 2005 , ruling that it was unconstitutional. Okay, now he also told me that The appeals courts are saying that it is not retroactive for people that already pass they appeal. That he has to wait until the U.S. Supreme court announce retro-activity of it. What does that mean, and how long does it take for it to happen.

If someone has an idea what it means please explain.

Thanks PTO Family for your support, once again.

The Supreme Court made the Sentencing Guidelines advisory giving the Judges flexibility in sentencing. Anyone who is sentenced after the finding will get the benefit of the new law. Also, anyone who was sentenced in the past year can ask for a rehearing. Anyone sentenced more than a year will have to live with their sentence.

Will the Supreme Court go back and allow all those who came before to be reheard? I cannot predict definitely but my best guess is no. If they did so allowing your b/f and many others to appeal, it would throw the system into chaos, not enough lawyers, judges, resources to deal with all those cases. The conservative high court doesn't take steps like that.

The only option at this point is to get a good appellate attorney to review the case and see if there is any opening for any type of appeal. This would be a costly venture, but the only way I have seen of any possible answer. If his case on the merits has something that could be relitigated, then a good appellate attorney would know. To assume that the Supreme Court is going to do anything is making a false assumption. I am not sure if there is a case before the Supreme Court right now dealing with the retroactivity issue. If so, all findings come out by June. If not, and this issue gets on the docket, then there would be a decision by June, 2006.

I am not a lawyer, so these thoughts are from observation rather than experience. There are literally thousands of people in your b/f shoes and they were burned by anti-defendant sentencing law, in my opinion. Does this help at all?

Well, you are right in some aspects, but I do believe that the findings in Bookers case will be an open door to previous cases that were not fair, my b/f has been trying to fight the same issue for some time, and it has taken this long for The U.S. Supreme Court to make such a ruling. Yes, it might not be retroactive, but that has not been ruled yet, and for a reason. Changes are occuring even if it has take almost 20 years. And I am sure that if there are not any changes soon, On August 13, 2005 the March that will be held in Washington DC, it will be heard, there are so many organizations and even judges that are against the sentencing guidelines. I don't think that if one person proves his point that the other won't be able. I leave it in gods hands. Where there is a will there is a way.


WHAT ABOUT CLIENTS ALREADY SENTENCED?

For those clients already sentenced, you should review your caseload and identify how your clients might be affected by Booker. Cases in certain procedural postures may require more immediate action than others. These include 1) cases that were sentenced recently, but in which no appeal has been filed, which could benefit from Booker's holding in a Rule 35; 2) cases that are on direct appeal and in which supplemental briefing or a motion for remand for resentencing may be filed (recommended for any case that raises only a Blakely sentencing issue, particularly those in which the court imposed an alternative sentence or indicated that a lower sentence might be possible); 3) cases in which the time to file a 2255 petition is running out (one year from date of sentencing if not appealed, one year from date of cert. denial, if appealed); 4) cases outside the one year period of limitation; and 5) cases where the client has filed one 2255 motion already.

Whether a client can obtain relief under 28 U.S.C. § 2255 is unresolved. It appears that the only clients who stand some chance are those who are still within the statute of limitations and have not filed a previous 2255 motion. Also consider the consequence to your client of unraveling a plea deal and exposing him to previously uncharged conduct, etc. or losing the benefit of the bargain. A client wanting to bring a 2255 will face at least two procedural barriers, and sometimes more:

Clients within 1 yr of a final judgment (measured from date of entry if no appeal filed, or date cert denied, or date cert could've been filed if appeal filed) must argue that Booker applies in 2255 either because it is not a new rule, because Teague (the case barring application of new rules in post-conviction) does not apply to 2255s, or because it is retroactive and the claim is not procedurally barred (see discussion below).

Clients outside of 1 yr statute of limitations must show that the right is "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review" and that it is not procedurally barred. Because the Supreme Court expressly addressed Booker's applicability on direct appeal, but did not make it retroactive, this hurdle is insurmountable.

Clients who need to file a second or successive 2255 motion must ask the 4th Circuit for certification that their claim contains "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" and that it is not procedurally barred. Again, because the Supreme Court did not make Booker retroactive, these clients will not meet the statutory standard for relief.

Retroactivity is a difficult hurdle to overcome in all of these cases, but there is an argument that the Supreme Court's decision in Schiro v. Summerlin, 124 S.Ct. 2519 (2004),which held that Ring is not retroactive,does not preclude relief because Booker, unlike Ring, implicates the beyond the reasonable doubt standard.

Another hurdle to overcome in these cases is procedural default. Under the rules, if a defendant did not raise a claim on direct appeal, then he is barred from 2255 relief unless he can show "cause and prejudice" or "actual innocence." Cause is generally going to be ineffective assistance of counsel , i.e., failure to preserve the Booker claim. The strength of any ineffectiveness argument is going to depend on when the sentencing occurred. If it occurred after the Court decided Blakely, or granted cert in Blakely, then counsel's failure to preserve the claim is more likely to be held unreasonable. It should be noted that counsel's failure to raise and preserve the claim because it would have been futile will not establish cause for a default. Bousley v. United States, 523 U.S. 614 (1998). Prejudice is shown if there is a reasonable probability the result would have been different.

Actual innocence can get a client past procedural bar if there are serious questions about the government's ability to prove a sentencing enhancement beyond a reasonable doubt. Under this test, if it is more likely than not that no reasonable juror would have found the enhancing factor beyond a reasonable doubt, then relief is possible.





The Supreme Court made the Sentencing Guidelines advisory giving the Judges flexibility in sentencing. Anyone who is sentenced after the finding will get the benefit of the new law. Also, anyone who was sentenced in the past year can ask for a rehearing. Anyone sentenced more than a year will have to live with their sentence.

Will the Supreme Court go back and allow all those who came before to be reheard? I cannot predict definitely but my best guess is no. If they did so allowing your b/f and many others to appeal, it would throw the system into chaos, not enough lawyers, judges, resources to deal with all those cases. The conservative high court doesn't take steps like that.

The only option at this point is to get a good appellate attorney to review the case and see if there is any opening for any type of appeal. This would be a costly venture, but the only way I have seen of any possible answer. If his case on the merits has something that could be relitigated, then a good appellate attorney would know. To assume that the Supreme Court is going to do anything is making a false assumption. I am not sure if there is a case before the Supreme Court right now dealing with the retroactivity issue. If so, all findings come out by June. If not, and this issue gets on the docket, then there would be a decision by June, 2006.

I am not a lawyer, so these thoughts are from observation rather than experience. There are literally thousands of people in your b/f shoes and they were burned by anti-defendant sentencing law, in my opinion. Does this help at all?