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Commentary: Burton and the looming AEDPA issue

With a single question during the argument Tuesday in Burton v. Stewart (05-9222), Chief Justice John G. Roberts, Jr., dropped a fascinating hint that the breadth of Congress’ revision of federal habeas rules in 1996 might play a major role in determining the fate of one of the Court’s most important precedents in the field: Teague v. Lane. If it was more than a hint, Teague might be on the way to being scuttled, and with it a significant amount of jurisprudence on making criminal law decisions retroactive to earlier cases.

Since the Court had already discussed that very issue in private Conference last Friday as it debated Whorton v. Bochting, argued last Wednesday, it might be that it simply was fresh in the Chief Justice’s mind. If it does turn out to mean more than that, the forthcoming Bochting decision — and maybe a ruling in Burton, too — could be a major habeas precedent on the retroactivity question. (Bochting is about the retroactivity in habeas of Crawford v. Washington, 2004, limiting admission of out-of-court statemens by absent witnesses; Burton is about retroactivity of Blakely v. Washington, also 2004, limiting judges’ authority to impose enhanced sentences based on facts found by the judge rather than the jury.)

It may be, however, that the Burton case may not proceed to a decision on the merits, since much of the argument on Tuesday focused on whether Lonnie Lee Burton had any right to bring the challenge that is now before the Court. The Justices seemed almost preoccupied with that jurisdictional issue, and the debating lawyers thus had to make it a sizeable part of their argument. These diversions helped enhance the seeming importance of the Chief Justice’s question.

It came just before Stanford law professor Jeffrey L. Fisher, representing Burton, was ready to yield the podium to his opponents. The Chief Justice said that Fisher had been assuming that, if the Court ruled against his argument that Blakely was not a new rule (and thus would be retroactive), it would have to get to the question of whether, as a new rule, it was a “watershed” rule deserving retroactivity. But, the Chief went on, “don’t you have to address AEDPA before we get to that?” He cited the language of AEDPA that some are claiming does overrule Teague v. Lane (1989). AEDPA, of course, is the 1996 law, the Antiterrorism and Effective Death Penalty Act, that made a wholesale change in habeas law. Its impact on Teague was a focus of the briefs in Bochting

Here is the way the Chief Justice put it: “In other words, it doesn’t matter if it’s a watershed, guess it is a point of argument, but it is not clear that it matters whether it is a watershed rule if you read AEDPA 2254(3)(1) by its terms.”.

Fisher responded that, if the Court were to conclude in the Bochting case that the watershed rule of Teague “did not survive AEDPA,” then there would be no way he could rely upon it in Burton’s case.

The issue did not arise again during the one-hour argument. AEDPA came up again only when the deputy solicitor general for Washington State, William B. Collins, argued that its restrictions on multiple habeas challenges barred Burton’s challenge to his sentence because it was a second petition for which he had not obtained permission in the courts. Collins chose to begin his argument on that point. The dispute centered on which of two court judgments Burton was challenging in his habeas petition.

An assistant to the U.S. solicitor general, Matthew D. Roberts, representing the federal government as amicus to oppose Blakely retroactivity, did not take a position on whether Burton’s challenge was procedurally flawed, but did suggest that, had he been convicted in federal rather than state court, he perhaps would not have been allowed to make the challenge to the sentence he got.

While Fisher was at the podium, he and the Justices spent much of their time exploring whether the sentence enhancement Burton received was like the kind that the Court ruled out in Blakely under the Washington State sentencing guidelines. The discussion focused on whether, in fact, state law required a judge to make findings of added facts beyond those found by a jury, in order to make sentences for several crimes consecutive, instead of concurrent.

Fisher argued that the judge in Burton’s case had tacked on more time — by making the sentences consecutive — by relying on the fact that Burton had committed other crimes. That, by itself, was an enhancement based upon a judicial finding, the professor argued. Under Washington law, he said, multiple sentences are to run concurrently unless a judge makes a special finding justifying consecutive sentences. The Chief Justice noted that the Court had not expressly held that consecutive sentencing amounted to an enhancement, but Fisher countered that, in Burton’s case, the longer sentence did not result from a jury finding.

Justice Ruth Bader Ginsburg was the first to bring up the question of whether Burton’s habeas challenge was a second challenge, without a court’s agreement that he could pursue it. “How do you get past that?” Fisher then argued that Burton was in fact challenging only a 1998 amended judgment, and this was not the same as an earlier challenge to a 1994 judgment. About halfway through his argument, the professor was able to return to his core argument that Blakely should be retroactive, because it was simply an application of the Court’s sentencing rulinig in Apprendi v. New Jersey in 2000.

He suggested that the Court in Apprendi had laid down a clear rule on jury fact-finding and sentencing, and that it did so with “robust reasoning,” and it was not up to state courts to second-guess whether the Court really meant what it said. It should have been evident to state courts that, when Blakely emerged, it was simply an application of Apprendi’s core holding, he contended.

Fisher attempted to say something about Blakely being a “watershed” decision deserving to be applied retroactively, but he was nearly out of time, and it was at that point that the Chief Justice moved in with the AEDPA query.

For the State, Collins was able, after dealing with the jurisdictional challenge to Burton’s petition, to make his argument against Blakely retroactivity. It did produce an interesting exchange with Justice Stephen G. Breyer, a dissenter in Blakely who confessed that he had tried at the time to think of a way to distinguish Blakely from Apprendi, but could not do so. Collins, and then the Justice Department’s Roberts, offered somewhat convoluted arguments on how the two could be distinguished, so that Blakely would appear to have established a new rule. The federal lawyer also put some emphasis on his argument that, as a new rule, Blakely was not of the stature to justify its retroactivity.

Somewhat curiously, the argument never touched on a lurking issue in the case, suggested by the briefing: how important is the “reasonable doubt” standard in the sentencing context; Apprendi and later cases applying it require jury fact-finding beyond a reasonable doubt in order to support enhanced sentences. That is part of the Teague watershed doctrine that got so little emphasis Tuesday.