Carmichael v. State

• Decision Date: 12 July 2007
• Docket Number: Docket: Som-05-307.,Docket: Cum-06-102
• Citation: 927 A.2d 1172,2007 ME 86
• Parties: Stephen CARMICHAEL v. STATE of Maine and Everett M. Ashby v. State of Maine.
• Court: Maine Supreme Court

927 A.2d 1172

2007 ME 86

Stephen CARMICHAEL v. STATE of Maine and Everett M. Ashby v. State of Maine.

Docket: Som-05-307.

Docket: Cum-06-102

Supreme Judicial Court of Maine.

Argued: May 22, 2007.

Decided: July 12, 2007.

Sarah L. Glynn, Esq. (orally), Daniel J. Eichorn, Esq., Oxford Hills Law, South Paris, for petitioners.

G. Steven Rowe, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Augusta, for State.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, SILVER, and MEAD, JJ.

SILVER, J.

[¶ 1] In this consolidated appeal, Stephen Carmichael and Everett M. Ashby contend that the Superior Court (Somerset and Cumberland Counties, Mills, J. and Wheeler, J.) erred in dismissing their petitions for post-conviction review. Based upon the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and our decision in State v. Schofield, 2005 ME 82, 895 A.2d 927, the petitioners claim that their sentences violate the Sixth Amendment. The petitioners contend that Blakely and Schofield newly recognized constitutional rights that retroactively apply to cases on collateral review. Thus, the petitioners contend that their petitions are not time-barred. We determine that neither Blakely nor Schofield applies retroactively and affirm the Superior Court's dismissal of Carmichael's and Ashby's petitions for post-conviction review.

I. BACKGROUND

A. Carmichael v. State

[¶ 2] On July 21, 1999, Stephen Carmichael was convicted of one count of gross sexual assault (Class A), 17-A M.R.S.A. § 253 (Supp. 1998), for conduct that occurred on May 31, 1998. The court determined that Carmichael met the requirements for a sentence exceeding twenty years, and sentenced him to thirty-five years in prison, none of which was suspended.¹ Carmichael appealed the decision to us and we affirmed the conviction in a memorandum of decision in June 2000.

[¶ 3] Days after our decision, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although Carmichael could have, he did not file a writ of certiorari to the United States Supreme Court seeking review of our decision in light of Apprendi.

[¶ 4] In September 2000, Carmichael filed his first post-conviction petition. In July 2003, the Superior Court denied the petition. In May 2004, we denied his motion for a certificate of probable cause to review the denial of his petition. A month after the United States Supreme Court decided Blakely, Carmichael filed a petition for a writ of habeas corpus in the federal District Court. In August 2004, Carmichael filed his second post-conviction petition in the Superior Court. Consequently the United States District Court for the District of Maine (Woodcock, J.) stayed the habeas corpus proceedings until the resolution of the state petition.

[¶ 5] In May 2005, the Superior Court (Somerset County, Mills, J.) dismissed Carmichael's second post-conviction petition. The court reasoned that the rule in Blakely does not apply retroactively to cases on collateral appeal, and therefore the appeal was untimely. Carmichael then filed a motion to reconsider, which the court denied.

[¶ 6] This request for a certificate of probable cause followed. On April 3, 2006, we issued a consolidated order granting certificates of probable cause in Carmichael v. State and Ashby v. State. In June 2006, the State moved to stay Carmichael's and Ashby's cases after the United States Supreme Court granted certiorari in Burton v. Waddington, 142 Fed.Appx. 297 (9th Cir.2005), cert. granted, ___ U.S. ___, 126 S.Ct. 2352, 165 L.Ed.2d 278 (U.S. June 5, 2006) (No. 05-9222), which could have resolved the issues before us. We granted that motion. However, in Burton v. Stewart, ___ U.S. ___, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007), vacating sub nom. Burton v. Waddington, 142 Fed.Appx. 297, the Court did not reach the retroactivity issues surrounding Blakely. On January 22, 2007, we issued a consolidated order lifting the stay order on Carmichael's and Ashby's petitions.

B. Ashby v. State

[¶ 7] On June 26, 2001, Everett Ashby pleaded guilty to one count of manslaughter (Class A), 17-A M.R.S.A. § 203(1)(A) (Supp.1998), for conduct that occurred on August 20, 1998.² On the date of the conviction, pursuant to the plea agreement, Ashby was sentenced to thirty-five years, with all but twenty years suspended and probation for six years. Ashby did not appeal either the conviction or the sentence.

[¶ 8] In November 2005, Ashby filed a petition for post-conviction review in the Superior Court contending that the court did not have jurisdiction to impose a sentence of twenty years. In January 2006, the Superior Court (Cumberland County, Wheeler, J.) summarily dismissed the petition reasoning that the appeal was time-barred. Ashby then filed a request for a certificate of probable cause with us. Following the request, the procedural history of Ashby's case merged with Carmichael's case.

II. DISCUSSION

A. Retroactivity of Blakely

[¶ 9] The petitioners contend that the United States Supreme Court articulated a new constitutional right in Blakely by specifically defining the standard to be used in Apprendi. The State, however, suggests that Blakely is not a new rule. The State asserts that Apprendi established a new rule of criminal procedure that Blakely "clarified."

[¶ 10] Pursuant to 15 M.R.S. § 2128(5) (2006), a one-year limitations period applies to petitions for post-conviction review. That period begins to run the latest of:

A. The date of the final disposition of the direct appeal from the underlying criminal judgment or the expiration of the time for seeking the appeal B. The date on which the constitutional right, state or federal, asserted was initially recognized by the Law Court or the Supreme Court of the United States, if the right has been newly recognized by that highest court and made retroactively applicable to cases on collateral review; or

. . . .

Id.

[¶ 11] Carmichael filed his second petition for post-conviction review years after the final disposition of his underlying criminal conviction. However, he filed his second petition two months after the United States Supreme Court decided Blakely. Thus, for Carmichael's petition to be timely, we must determine that Blakely newly recognized a constitutional right that is retroactively applicable to Carmichael's collateral appeal. See id.

[¶ 12] Blakely emerged in the wake of Apprendi. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, 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." 530 U.S. at 490, 120 S.Ct. 2348. Four years later, the United States Supreme Court determined that:

the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (citations omitted) (emphasis in original). The Court decided Blakely on a direct appeal. See id. at 301, 124 S.Ct. 2531. Thus, the question remains whether Blakely applies retroactively to cases on collateral appeal.

[¶ 13] In Teague v. Lane, the United States Supreme Court fashioned a three-part test to determine whether a constitutional rule of criminal procedure may apply to a case on collateral appeal. 489 U.S. 288, 300-16, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court later summarized the three-steps:

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) (citations omitted). Each of these steps is examined in turn.

1. When Carmichael's Conviction Became Final

[¶ 14] For the purpose of determining retroactivity, state convictions are final when the defendant has exhausted the right to directly appeal in state court and the time for filing a writ of certiorari has expired or the United States Supreme Court has denied the petition for certiorari. Id. Carmichael did not file a writ of certiorari after we affirmed his underlying conviction on June 20, 2000. Pursuant to United States Supreme Court Rule 13, Carmichael had ninety days after our decision to file a writ of certiorari, after which the conviction became final. See SUP. CT. R. 13(1).

2. Whether Blakely is a New Rule

[¶ 15] The second step in the Teague analysis requires a determination of whether Blakely was dictated by then-existing precedent-Apprendi. See Beard, 542 U.S. at 413, 124 S.Ct. 2504. This determination includes assessing "whether the unlawfulness of [Carmichael's] conviction was apparent to all reasonable jurists." See id. (quotation marks omitted). The content and reasoning of a dissent in the case determining the "new" rule may provide support that the rule is new. See id. at 415-16, 124 S.Ct. 2504. However, the mere existence of a dissent does not suffice to show that a rule is new. Id. n. 5 at 416, 124 S.Ct. 2504.

[¶ 16] To support the proposition that Blakely created a new rule for the purposes of determining retroactivity, courts have commonly cited the fact that following Apprendi every circuit court that confronted the issue addressed in Blakely reached a conclusion opposite to the Court....