Monday, August 23, 2004

Seeking Some Blakely Help

Kate Alfieri, a federal appellate attorney in San Francisco, wrote me seeking some advice from the readers of this blog. Below, I've pasted the text of the email she sent me which presents some interesting procedural and substantive (Harris v. US) questions. If anyone reading this post has any advice for Kate, please use the comments or you can contact her at this email address.

The question:

Appellate client receives memorandum decision from the 9th Circuit on June 22, 2004 denying his appeal, including a claim that: The district court sentenced appellant for two convictions of 18 U.S.C. §924(c) on separate dates by imposing a seven-year consecutive sentence on the first count and a twenty-five year consecutive sentence on the second count. The court imposed the initial seven-year term based on a conclusion that the defendant “brandished” the firearm at the time of the offense even though special verdict forms were submitted to the jury on the issue of whether appellant possessed, brandished or discharged a firearm on the occasion of each bank robbery. The jury returned special verdicts declaring that appellant only possessed the firearm on each occasion. (9th Cir found dist ct had a right to determine these facts under preponderance standard).

Blakely comes down on June 24th. Appellate counsel does not file a petition for
rehearing based on Blakely.

Ninth Circuit issues the mandate on July 15, 2004.

It seems that Blakely applies to all cases pending on direct review when it was issued. Thus, is appellant’s case still pending on direct review up until the date of the issuance of the mandate? (The end of the petition for rehearing period + 7); Or on the date of the issuance of the memorandum decision?

If appellant’s case is still pending when Blakely is issued, then he may raise it on a 2255, otherwise, no. Therefore, the ultimate question, is whether I should file a motion to recall the mandate. But to do so, I must show a miscarriage of justice, which would only be the case if client is foreclosed from raising Blakely on a 2255 because his appeal was not pending at the time of its issuance.

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