Burton v. Waddington Reply Brief

Today, the Stanford Supreme Court Litigation Clinic filed this reply brief in the case of Burton v. Waddington (05-9222). Professor Jeff Fisher will argue the case before the Court and, working in conjunction with Brian Tsuchida and Laura Mate of the Federal Public Defender’s Office in Seattle, he is responsible for the brief; the team of students who worked on it with him includes David Thompson, Rae Woods, and Erik Zimmerman. The case is set to be argued on Tuesday, November 7.

The petitioner’s brief in this case is available here, and the respondent’s brief is available here; several amicus briefs are also available here.

The question presented is:

“Petitioner was given an exceptional sentence of 258 months above the 304 month ceiling of the statutory sentencing range, and this Washington State sentence became final after Apprendi v. New Jersey, but before Blakely v. Washington:

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?
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?”