Barriers to Challenging Existing Sentences Under Booker

I’m getting a quite a few inquiries from friends and relatives of federal inmates wanting to challenge their federal sentences in light of Booker.  Here are some significant potholes in that road.

1.         If the inmate was convicted pursuant to a plea of guilty, the plea agreement may have contained a waiver of both the right to direct appeal and to file a 28 U.S.C. 2255 action to attach the conviction.  The standard plea agreement used in the Austin Division of the Western District of Texas contains such a waiver allowing post conviction challenges only to claims of ineffective assistance of counsel and prosecutorial misconduct.  The may prevent a challenge on Booker grounds.  Note: there may be an argument that the waiver could not have applied to a right not yet established by the case law.

2.         The factual basis agreed to by the accused may contain admissions that support the guideline components of the sentence.  Blakely reiterated the Apprendi mantra that facts used to increase the maximum sentence other than prior convictions and those facts admitted to by the defendant must be proven to a jury beyond a reasonable doubt.  (There is also a question of whether those factors must be pleaded in the indictment as a matter of due process).  If the “facts admitted to by the defendant” are interpreted by the courts to include those facts stipulated to in the factual basis or if the error is deemed harmless because of the judicial admissions then the defendant will be not be granted relief.

3.         The Booker decision may not be retroactive.  Consequently, any convicted person who no longer has a right to direct appeal may not be able to challenge his or her conviction on Booker grounds.  In Ring v. Arizona, 122 S.Ct. 2428 (2002) the court held that the Arizona death penalty statute was unconstitutional under the principles of Apprendi because the trial judge was empowered to make factual findings that triggered the death penalty.  However, in Schriro v. Summerlin, 124 S.Ct. 2519 (2004) the court refused to apply Ring retroactively to an Arizona death penalty case where direct appeal had been exhausted.  The court characterized the change in the law brought about by Ring as “procedural” rather than “substantive” and decided that the new rule announced wasn’t a “watershed” one.  It further concluded that “This Court cannot confidently say that judicial factfinding seriously diminishes accuracy.”  Therefore, there was no reason to question the integrity of the decisions under the old rule.  I don’t see any distinction between the Arizona situation addressed in Ring and the rule announced in Booker.