Burton v. Fabian

• Decision Date: 16 July 2010
• Docket Number: No. 09-2137.,09-2137.
• Citation: 612 F.3d 1003
• Parties: Antonio Darrail BURTON, Petitioner-Appellant,v.Joan FABIAN, Commissioner of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

612 F.3d 1003

Antonio Darrail BURTON, Petitioner-Appellant,v.Joan FABIAN, Commissioner of Corrections, Respondent-Appellee.

No. 09-2137.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 12, 2010.

Filed: July 16, 2010.

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Douglas Micko, argued, Minneapolis, MN, for appellant.

Thomas A. Weist, argued, Minneapolis, MN, for appellee.

Before RILEY, Chief Judge,¹ BRIGHT, and WOLLMAN, Circuit Judges.

BRIGHT, Circuit Judge.

Antonio Darrail Burton appeals from a district court determination denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Burton argues his sentence was imposed in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). The district court ² issued a certificate of appealability on the issue of whether Cunningham may be applied retroactively to Burton's case. Because we conclude that Burton may not collaterally attack his sentence based on Cunningham, we affirm.

I

In 1998, a jury convicted Burton of criminal sexual conduct, aggravated robbery, burglary, and related crimes. At sentencing, the Minnesota district court determined that Burton's crimes included the presence of several aggravating factors and departed upward from the Minnesota Sentencing Guidelines. The court sentenced him to 464 months' (38 years, 8 months) imprisonment.

Burton appealed his conviction and sentence. On August 3, 1999, the Minnesota Court of Appeals affirmed in part and reversed in part, remanding one of Burton's burglary convictions for resentencing. The Minnesota Supreme Court denied Burton's petition for further review on September 14, 1999. On remand, the district court vacated one of the burglary counts and reduced Burton's sentence to 416 months' imprisonment in an order dated May 9, 2000.

Burton petitioned for state post-conviction relief, claiming his conviction should be set aside because of newly discovered evidence and ineffective assistance of counsel. The district court denied his petition, and the Minnesota Court of Appeals affirmed on October 15, 2002.

Burton filed a second state post-conviction petition on August 25, 2005, claiming his sentence was unconstitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because he was sentenced above the presumptive guideline range based on aggravating factors not found by a jury. On January 6, 2006, the district court denied Burton's second petition, and the Minnesota Court of Appeals affirmed on January 5, 2007. The Minnesota Supreme Court denied further review on March 28, 2007, and the United States Supreme Court denied his petition for a writ of certiorari on January 14, 2008.

Burton filed this habeas corpus petition on March 17, 2008. He argued that his sentence was unconstitutional because the judge made factual determinations by a preponderance of the evidence. On April 11, 2008, the magistrate judge ³ issued a report and recommendation, concluding Burton's petition was time barred and should be dismissed. On May 22, 2008, the district court adopted the report and recommendation, determining that Apprendi and Blakely could not be applied retroactively to Burton's case and that Burton's petition was outside the one-year statute of limitations period. The court also held that Cunningham did not apply retroactively, but issued a certificate of appealability on that issue.

II

On appeal, we consider whether Cunningham should be applied retroactively to Burton's case. Cunningham follows a litany of Supreme Court cases considering whether various sentencing laws violate the Sixth Amendment. The first of these cases is Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In Apprendi, the Court considered whether a sentencing judge could impose an extended term of imprisonment beyond the statutory maximum based on judge-found facts. Apprendi was convicted of an offense punishable by five to ten years' imprisonment. Id. at 468, 120 S.Ct. 2348. However, he was sentenced to twelve years' imprisonment based on the sentencing judge's finding that he committed the crime with the purpose of intimidating protected groups. Id. at 471, 120 S.Ct. 2348. The Supreme Court reversed the sentence, holding that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348.

Four years later, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court decided what constitutes the “statutory maximum” under Apprendi. Blakely pled guilty and faced a statutory maximum of ten years' imprisonment. Id. at 299, 124 S.Ct. 2531. But Blakely could not be sentenced above a “standard range” of 49 to 53 months unless the sentencing judge found “substantial and compelling reasons justifying an exceptional sentence.” Id. (citation omitted). After finding that Blakely acted with “deliberate cruelty,” the sentencing judge imposed a sentence above the standard range. Id. at 303, 124 S.Ct. 2531. The Supreme Court held that the statutory maximum for purposes of Sixth Amendment analysis is not the maximum sentence stated by the statute but is “the maximum [a judge] may impose without any additional findings” found by a jury. Id. at 303-04, 124 S.Ct. 2531 (emphasis omitted). Thus, Blakely's sentence above the statutory maximum violated his Sixth Amendment rights. Id. at 305, 124 S.Ct. 2531.

The Court next decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which considered what constitutes the “statutory maximum” under the federal sentencing guidelines. The Court held that the upper end of the sentencing guidelines was the statutory maximum and a sentencing judge could not sentence above the guideline range based on his or her own fact finding. Id. at 233-35, 125 S.Ct. 738.

Two years later, the Court decided Cunningham where it considered the constitutionality of California's determinate sentencing law. Under California's determinate sentencing law, offenses were assigned upper, middle, and lower range maximum sentences. 549 U.S. at 277, 127 S.Ct. 856. Sentencing judges were to impose a sentence in the middle range unless aggravating or mitigating circumstances were present. Id. If the judge found aggravating facts present, he or she could sentence in the upper sentencing range. Id. The Court held that California's law violated the Sixth Amendment and decided that the middle range was the relevant statutory maximum under California law. Id. at 288, 127 S.Ct. 856. The Court held that a sentencing judge cannot impose an upper-term sentence unless a jury finds facts supporting aggravating circumstances beyond a reasonable doubt. Id. at 288-89, 127 S.Ct. 856.

Burton asserts that his sentence violates Cunningham because the sentencing judge increased his sentence based on facts not found by a jury. Before considering the merits of Burton's claim, we must determine whether we can apply Cunningham to Burton's sentence. See Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). “When a Supreme Court decision results in a ‘new rule’ of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are already final, the rule applies only in limited circumstances.” Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005) (per curiam). Our retroactivity determination is governed by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989):

Under Teague, the determination whether a constitutional rule of criminal procedure applies to a case on collateral review involves a three-step process. First, the court must determine when the defendant's conviction became final. Second, it must ascertain the “legal landscape as it then existed,” and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually “new.” Finally, if the rule is new, the court must consider whether it falls within either of the two exceptions to nonretroactivity.

Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (internal citations omitted).

A. Final Conviction

A conviction becomes final “for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” Id. (citation omitted). Burton argues his conviction became final on August 7, 2000, after the Court decided Apprendi. The government argues Burton's conviction became final on December 14, 1999, before the Court decided Apprendi. But we need not decide this issue because it does not affect the result in this case. For the purpose of this appeal, we accept Burton's argument that his conviction became final on August 7, 2000.

B. New Rule

Turning to the second step in Teague, we consider whether Cunningham announced a “new rule.” A “new rule” is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. A result is dictated by precedent if the unlawfulness of the defendant's conviction was “apparent to all reasonable jurists” when the conviction became final. Beard, 542 U.S. at 413, 124 S.Ct. 2504.

Both parties agree that the Constitution did not compel the rule announced in Cunningham on August 7, 2000, and is a “new rule.” We agree with the parties that Burton's sentence was not clearly unlawful when his conviction became final. We acknowledge that Appr...