In Varela v. U.S., No. 04-11725 (Feb. 17, 2005), the Court (Birch, Barkett, Hull) held that Blakely v. Washington, and, by extension, Booker, is not retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
