Burton, Lonnie Lee v. Stewart, Belinda (Superintendent, Stafford Creek Corrections Center) (01/09/2007)

Questions presented: (1) Is the holding in Blakely v. Washington a new rule or was it dictated by Apprendi v. New Jersey? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?

BY JENNY HUNSPERGER, MEDILL NEWS SERVICE

Lonnie Lee Burton had already been convicted of child rape, sexual exploitation of a minor, child molestation, theft and forgery before he was convicted of raping a 15-year-old Washington state boy in 1991.

Burton followed the boy home from school and then, posing as a hockey-team salesman, forced his way into the house. He raped the boy at gunpoint and stole $160 before he left.

Burton flew to Indiana a few days later, using an alias and a stolen credit card.

In Indiana, he was arrested and awaiting extradition back to Washington on a different set of sexual-assault charges when he told a cellmate about the rape. The cellmate testified during Burton's trial, and Burton was sentenced to nearly 47 years in prison for rape, robbery and burglary.

Burton's sentence was about 21 years longer than the guidelines suggested, but the trial judge thought that Burton deserved a harsher penalty and ordered the standard sentences to run consecutively rather than concurrently.

Burton claimed the judge should not have been allowed the discretion to increase his sentence.

A decade after Burton was convicted, the U.S. Supreme Court reviewed the case of a man who was sentenced to an extra three years for kidnapping his estranged wife with "deliberate cruelty." In Blakely v. Washington, the Court in 2004 overturned Blakely's sentence, stating that "the framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to 'the unanimous suffrage of twelve of his equals and neighbours,' rather than a lone employee of the State [the judge]."

The Blakely decision means that any factors increasing a sentence beyond a determined sentencing guideline must be proved to a jury beyond a reasonable doubt, effectively limiting judicial discretion on sentencing.

Burton petitioned for a writ of habeas corpus, claiming that the Blakely decision should apply to his case. If the decision applies retroactively (because it was handed down after Burton's sentence was finalized), then Burton would be retried and the sentence-enhancement provision would have to be submitted to a jury.

Burton's attorneys also claimed that his sentence violated Apprendi v. New Jersey, a case decided in 2000. Apprendi held that factors increasing the sentence beyond the statutory maximum must be proved beyond a reasonable doubt to a jury.

In its unanimous, unpublished opinion, the 9th Circuit Court of Appeals wrote that Blakely is a new rule that cannot be applied retroactively. It also held that Burton's sentence did not violate Apprendi because the statutory maximum sentence for each of Burton's three charges is life imprisonment. The sentence imposed, 562 months, does not exceed the statutory maximum.

"Although Apprendi was decided before Burton's conviction became final and may therefore be applied to this case, the state argues that Blakely – decided after Burton's conviction became final – established a new rule that does not apply retroactively on collateral review. We agree," the court held.

The court went on to state that "because [Burton's] sentence on any individual count, and the total sentence imposed does not exceed the statutory maximum of life imprisonment, it does not violate Apprendi."

On June 5, 2006, the U.S. Supreme Court accepted review in the case and allowed Burton to have his case heard without costs.

"One of the fears of the states is that depending on what the Supreme Court were to say in this case, if rules were to be applied retroactively, it could mean that more people would be challenging their sentences a decade or more after their convictions," said Assistant Attorney General of Washington John Samson, who is handling the case for the state.

"It's already an overburdened court and when you're talking about retrying a case many years later, assuming all the witnesses can be found, their memories have faded or evidence has disappeared," he said.

Another consequence of the Court's ruling in Burton's case is that it could set precedent for when opinions should be applied post-conviction.

"As a practical matter, when the courts see this potential tidal wave of post-conviction litigation, they usually render a decision that the application of a new rule can only be used in subsequent cases," said Steve Baker, a public defender in Chicago.

"Generally, they don't apply them [post-conviction] unless they decide that the rule is so fundamental to due process that we should apply it retroactively," he said. "It's rare, but it happens."

On Jan. 9, 2007, the Court unanimously sidestepped the Blakely issue by dismissing the case because Burton had failed to comply with the gatekeeping requirements of the federal habeas statute.

In issuing a 10-page unsigned per curiam opinion, the Court sent the case back to the trial court with instructions to dismiss Burton's habeas application for want of jurisdiction.