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Supreme Court Decision Update - Burton v. Stewart

The second of yesterday’s Supreme decisions was Burton v. Stewart (PDF of the opinion). This looked like it was going to settle an outstanding bit of business from the Court’s 2004 decision limiting judicial discretion in federal sentencing. But I’ll cheat and give you the answer here - it did not.

QuizLaw Analysis: The Supremes pulled a fast one on us. They didn’t go into the substantive issue here, whether 2004’s Blakely v. Washington applied retroactively, on collateral review, to criminal sentences issued before the 2004 opinion. Instead, they said the habeas petition in this case was improperly filed and should be thrown out. But they’ll get to the issue one day. They promise.

In the meantime, unless you care about the procedural issues related to second habeas petitions, you may just want to skip the rest of this.

What’s the deal with Blakely? In 2004, the Supremes looked at “exceptional” sentences issued on aggravating factors and ruled that the factors have to be proven to a jury before they can be considered in sentencing. The judge isn’t allowed to rely on the factors on his/her own if this isn’t done. Simple, you see.

Only, there’s a big issue as to whether this applies to sentences that had been handed down before the Supremes issued the Blakely decision. Nineteen states, including Washington, have said it does not, and have upheld earlier convictions. Folks thought that this case might give the Supremes a chance to put the matter to rest.

So why didn’t they put it to rest? Well, that’s a long story that relies on the details of how this case got before the Supremes.

You’re going to make me ask, aren’t you? Yes.

Ok. You suck. …how did this case get before the Supremes? Back in 1994, Lonnie Burton was convicted in a Washington jury trial of rape, robbery and burglary (not a good guy, you see). The judge then smacked him with a 562 month sentence. The court based this sentence on two different reasons. First, the individual sentences for each crime were within state guidelines, and they could be tacked on concurrently here (which is considered an “exceptional” sentence) because the court found that concurrent sentences would be too lenient, as he’d only get 304 months in the clink (for the rape charge). Second, the court decided that the sentences could be tacked together consecutively, but then the rape sentence should be a 562 month sentence, again because a shorter conviction would be too lenient.

Burton applied for a resentencing, and over a year later the court issued an amended judgment and sentence. Burton still got hit with 562 months in the clink, but the court relied just on the second reason (that is, Burton was sentenced to 562 months for the rape charge, to run concurrently with the other sentences). The state Court of Appeals upheld the conviction, and the state Supremes declined a review. However, the state Court of Appeals remanded for another resentencing, finding problems with the exceptional rape sentence with regard to an appearance of being vindictive and hurting his chances for early release. So the trial court then entered a second amended judgment and sentence. Burton still got 562 months in the clink but this time the court relied only on the first original reason (that is, that this was a total from the three sentences, which would run consecutively). This sentence was again appealed, but all the state courts rejected Burton’s appeal.

Now while the state review of this third sentencing order was pending, Burton filed a petition for a writ of habeas corpus in federal court. He used the standard application form, which has a nice plum warning on it - applicants are warned that they should not file until they’ve exhausted every possible state court remedy for whatever grounds they’re filing on and that they may be barred from raising any new grounds later. But Burton filed on anyway, challenging his convictions as being unconstitutional. He did not challenge the sentences (which were, remember, still pending appellate review).

So the District Court took the petition and denied any relief, and the Ninth Circuit upheld this decision.

Three years after originally filing that habeas petition, Burton went and filed a second petition, this time challenging the constitutionality of his sentencing (because, at this point, his state appeals had all been rejected). The District Court denied this petition as well, and the Ninth Circuit again affirmed. Now, while in District Court, the State of Washington actually argued that the federal courts didn’t even have jurisdiction over the petition because Burton didn’t get permission to file a second habeas petition, something required by federal law. But the District Court, and the Ninth Circuit, ignored this argument and ruled on the substance of Burton’s petition.

Ok, so now we’re at the Supremes? Yup. In a per curium opinion (which is, remember, unanimous and unsigned), the Supremes say that the lower federal courts got it wrong. Which is no surprise, since this is coming from the Ninth Circuit. Smack!

The relevant law here says that an application is “second or successive” when a prisoner is challenging his prison custody after already having challenged that same custody. Burton was originally convicted in 1994, and then reconvicted in 1998, and was being held under that judgment when he filed his first petition. And he was still in jail for that judgment when he filed his second petition, so he was challenging the same custody. Which means this was a “second or successive” application and Burton didn’t have authorization - he should have first gone to the appropriate court of appeals (the Washington Court of Appeals, in this case) to get an order granting the District Court authority to consider the application. But he didn’t do that. So no review for him.

The Ninth didn’t agree with this since, under their reasoning, he had a legit reason for failing to raise the sentencing challenges in his first petition, since they were still under review. The Supremes accept that this may be a legitimate excuse, but say it doesn’t matter because prior rulings have explained that a petition can include some claims which are still pending appeal (a so-called mixed petition) and when the claims pending appeal are dismissed, they can later be re-filed without being considered “second or successive.” But if someone files on just the exhausted claims, as Burton did with his first petition, they risk waiving later claims - that’s what the warning on the petition is all about (I told you about this warning above).

Now Burton also argues that there were actually two different judgments being challenged. See, he was first convicted in 1994, and that’s the judgment which was at issue in the first petition, he says. But there was a rejudgment in 1998, and that’s what was challenged by the second petition. The Supremes don’t buy this since the 1998 judgment actually came down nine months before the first petition was filed. So he was being held under that 1998 judgment when he filed both petitions. Which sort of deflates his argument.