FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE E. SCHARDT, No. 02-36164
Petitioner-Appellant,
v. D.C. No.
CV-02-00301-TSZ
ALICE PAYNE,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted November 2, 2004
Submission Deferred November 3, 2004
Resubmitted May 9, 2005
Seattle, Washington
Filed July 8, 2005
Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcón
7963
7966 SCHARDT v. PAYNE
COUNSEL
Sheryl Gordon McCloud, Law Offices of Sheryl Gordon
McCloud, Seattle, Washington, for the petitioner-appellant.
Diana M. Sheythe and John J. Samson, Assistant Attorney
General, Office of the Washington Attorney General, Crimi-
nal Justice Division, Olympia, Washington, for the
respondent-appellee.
David Zuckerman and Jeffery L. Fisher, NACDL Amicus
Committee, Seattle, Washington, for amicus NACDL.
SCHARDT v. PAYNE 7967
OPINION
ALARCÓN, Senior Circuit Judge:
We must decide in this matter the novel question whether
a Washington state prisoner may challenge the validity of his
sentence retroactively on the ground that the trial court based
its sentencing decision on facts that were not found to be true
by a jury in violation of the constitutional principle subse-
quently announced by the United States Supreme Court in
Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude
that Blakely does not apply retroactively to convictions that
became final prior to its publication. We also hold that the
petitioner has failed to demonstrate that he was ineffectively
represented by his trial counsel.
I
Mr. Schardt was charged with one count of rape of a child
in the first degree,1 a class A felony under Washington law.
The accusatory pleading alleges that Mr. Schardt had sexual
intercourse with a child who was less than twelve years old
from April 1, 1996 to April 22, 1997, a period of more than
a year.
At trial, B.E. (“the victim”) testified that Mr. Schardt com-
mitted numerous acts upon her person that come within
Washington’s definition of the term “sexual intercourse.”2 She
1
Wash. Rev. Code § 9A.44.073 provides:
(1) A person is guilty of rape of a child in the first degree when
the person has sexual intercourse with another who is less than
twelve years old and not married to the perpetrator and the perpe-
trator is at least twenty-four months older than the victim.
(2) Rape of a child in the first degree is a class A felony.
2
Wash. Rev. Code § 9A.44.010 defines sexual intercourse as follows:
(1) “Sexual intercourse”
7968 SCHARDT v. PAYNE
stated that this conduct began sometime after she and her
mother moved in with Mr. Schardt in early 1996. The victim
testified that Mr. Schardt engaged in sexual intercourse with
her several times a month. She described the various places
in the residence where these acts occurred and the ways in
which Mr. Schardt would position their bodies in order to
engage in sexual intercourse. She testified that Mr. Schardt
committed the last act of sexual intercourse on the morning of
April 22, 1997.
The victim testified that on April 22, 1997, she was in bed
when Mr. Schardt entered her room. He told her that she
“owed” him. He took off her clothes, and placed Vaseline on
his penis and attempted to insert it in her vagina. Mr. Schardt
also touched her vagina with his mouth and fingers.
The victim’s mother, testified that she lived with Mr.
Schardt from March 1996 until the end of April 1997. The
victim’s mother stated that she took the victim to a hospital
for a medical examination a day or so after the April 22, 1997
incident.
(a) has its ordinary meaning and occurs upon any penetration,
however slight, and
(b) Also means any penetration of the vagina or anus however
slight, by an object, when committed on one person by another,
whether such persons are of the same or opposite sex, except
when such penetration is accomplished for medically recognized
treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons
involving the sex organs of one person and the mouth or anus of
another whether such persons are of the same or opposite sex.
Under Washington law, therefore, a person can have sexual intercourse
with a child, and thereby commit rape of a child, without penetration; for
example oral sex comes within the statutory definition of sexual inter-
course. State v. Sardinia, 713 P.2d 122, 126 (Wash. Ct. App. 1986).
SCHARDT v. PAYNE 7969
A nurse practitioner testified that she examined the victim
on April 25, 1997 and found “a notch” on her hymen which
was “indicative of penetrating trauma, or attempted penetrat-
ing trauma” and consistent with sexual abuse.
In his defense, Mr. Schardt testified that as a result of an
on-the-job injury to his back, he began taking muscle relax-
ants that impaired his ability to have an erection. He stated
that this problem began to occur around January 1997. Mr.
Schardt’s counsel did not introduce any medical records into
evidence regarding Mr. Schardt’s complaint of erectile dysfunc-
tion.3
The judge’s admonition to the jury contained the following
instruction:
There are allegations that the defendant committed
acts of rape of a child in the first degree on multiple
occasions. To convict the defendant, one or more
particular acts must be proved beyond a reasonable
doubt and you must unanimously agree as to which
act or acts have been proved beyond a reasonable
doubt. You need not unanimously agree that all the
acts have been proved beyond a reasonable doubt.
Thus, the jury was not required to make a finding regarding
whether Mr. Schardt had repeatedly committed rape of a child
during the one-year period. Based on this instruction, the
3
In support of his personal restraint petition, Mr. Schardt alleged that he
told his trial lawyer “about [the] records maintained in the offices of Dr.
Schiff which would support my assertion that I was having trouble main-
taining a penile erection during the time period encompassed by the charg-
ing information.” Ms. Sheryl McCloud, his appellate counsel, also filed a
declaration in which she alleged that Mr. Schardt told her “that there were
easily available reports of two physicians who were treating him . . . dur-
ing the time period described in the charging information, who could ver-
ify his claim of inability to maintain a penile erection at the time of his
charged crime.”
7970 SCHARDT v. PAYNE
members of the jury could have convicted Mr. Schardt if they
agreed that only one act of rape had been proven beyond a
reasonable doubt. The jury found Mr. Schardt guilty as
charged.
The court determined that Mr. Schardt had a standard sen-
tence range of 78 to 102 months under Washington’s Sentenc-
ing Reform Act.4 Under that statute, a court can increase the
standard sentence if it finds that there are aggravating factors.5
The judge must determine the existence of any aggravating
factors “by a preponderance of the evidence.” Wash. Rev.
Code § 9.94A.530(2). These factors include:
The defendant knew or should have known that the
victim of the current offense was particularly vulner-
able or incapable of resistance due to extreme youth,
advanced age, disability, or ill health. . . .
...
The current offense involved multiple victims or
multiple incidents per victim.
4
Wash. Rev. Code § 9.94A.510 (Table 1).
5
Wash. Rev. Code § 9.94A.535 (2004) provides in part:
The court may impose a sentence outside the standard sentence
range for an offense if it finds, considering the purpose of this
chapter, that there are substantial and compelling reasons justify-
ing an exceptional sentence. Whenever a sentence outside the
standard sentence range is imposed, the court shall set forth the
reasons for its decision in written findings of fact and conclusions
of law. A sentence outside the standard sentence range shall be
a determinate sentence unless it is imposed on an offender sen-
tenced under RCW 9.94A.712. An exceptional sentence imposed
on an offender sentenced under RCW 9.94A.712 shall be to a
minimum term set by the court and a maximum term equal to the
statutory maximum sentence for the offense of conviction under
chapter 9A.20 RCW.
SCHARDT v. PAYNE 7971
Wash. Rev. Code § 9.94A.535 (2004). The state trial court
sentenced Mr. Schardt to serve 204 months in prison based on
its findings of fact that:
1. The defendant was victim B.E.’s surrogate stepfa-
ther and/or father-figure and was one of two primary
custodial parents during the entire span of time the
offenses were committed.
2. The offenses were committed against B.E. over
an approximately one year period when B.E. was
between the ages of 10 years and 11 years old.
In its conclusions of law, the trial court stated:
1. In committing these offenses the defendant
abused his position of trust and confidence as a sur-
rogate stepfather and custodial parent.
2. The victim was, at the time of the offenses, par-
ticularly vulnerable and incapable of resistance due
to her extreme youth.
3. The offenses committed were part of an ongoing
pattern of sexual abuse of the same victim and
involved multiple incidents over a prolonged period
of time.
The Washington Court of Appeals affirmed Mr. Schardt’s
conviction in an unpublished opinion. Mr. Schardt did not
petition the Washington Supreme Court for direct review. Mr.
Schardt’s personal restraint petition was dismissed by the
Washington Court of Appeals. The Washington Supreme
Court denied Mr. Schardt’s motion for discretionary review of
the personal restraint petition.
In his state prisoner petition for habeas corpus filed pursu-
ant to 28 U.S.C. § 2254, Mr. Schardt raised three arguments:
7972 SCHARDT v. PAYNE
(1) his sentence violated the Sixth Amendment right to a jury
trial as construed by Apprendi v. New Jersey, 530 U.S. 466
(2000); (2) more than a preponderance of the evidence was
required to enhance his sentence, and (3) his trial counsel was
ineffective because he failed to discover and submit reports
made by Mr. Schardt’s treating physicians showing that he
had complained of erectile dysfunction at the time of the
alleged rapes. The district court denied the petition. The dis-
trict court had jurisdiction over this petition for a writ of
habeas corpus pursuant to 28 U.S.C. §§ 2241, 2254. We have
jurisdiction to review Mr. Schardt’s timely appeal under 28
U.S.C. § 1291.
II
Mr. Schardt contends that he received ineffective assistance
of counsel at the guilt phase of his trial. We review de novo
a district court’s denial of habeas corpus relief. Clark v. Mur-
phy, 331 F.3d 1062, 1067 (9th Cir. 2003). In order to prevail
on his claim of ineffective assistance of counsel, Mr. Schardt
“must show that counsel’s representation fell below an objec-
tive standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). Second, he must show “that coun-
sel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Id. at 687.
Mr. Schardt correctly notes that to show prejudice under
Strickland, he need only demonstrate “that there is a reason-
able probability that, but for counsel’s errors, the result of the
proceeding would have been different.” Wade v. Calderon, 29
F.3d 1312, 1323 (9th Cir. 1994) (citing Strickland, 466 U.S.
at 687), overruled on other grounds by Rohan ex rel. Gates
v. Woodford, 334 F.3d 803, 815 (9th Cir. 2003). He argues
that counsel’s failure to introduce medical records reflecting
his complaint of erectile dysfunction prejudiced him because
such evidence would have corroborated his testimony, and
impeached the victim’s testimony regarding penile penetra-
tion. He asserts that the doctor’s records would be particularly
SCHARDT v. PAYNE 7973
persuasive, because “the reports were made before any allega-
tions or charges of child rape or anything like it were ever
brought forward. They were made at a time when there was
no suspicion being cast upon Mr. Schardt.”
In response, the State first points out that the medical
reports did not show that Mr. Schardt’s physician diagnosed
him as suffering from erectile dysfunction. The medical
reports merely record that Mr. Schardt had made “unproven,
undiagnosed, and self-serving statements [to his treating phy-
sician] who did not have the expertise to diagnose or treat
such a dysfunction.” The State also notes that the victim
described numerous ways in which Mr. Schardt had engaged
in sexual intercourse with the victim as defined under Wash-
ington law that can be effected without an erection. Further-
more, Mr. Schardt did not complain of erectile dysfunction
until after an accident in October 1996, but he was charged
with committing rape during a period that began in April
1996.
[1] The record shows that at the time Mr. Schardt com-
plained to his physician regarding erectile dysfunction, he had
not been criminally charged. He asserts that it would be diffi-
cult for a jury to believe that he would lie to his physician
about erectile dysfunction in a private setting before he was
criminally charged with rape of a child, in an effort to protect
himself against possible charges in the future. He also main-
tains that, while he complained of erectile dysfunction only
midway through the period for which he was charged, and
although some of the acts described by the victim could have
been performed without erection, “witness credibility is so
critical that it is outcome-determinative. It was in this context
that [the victim] described Mr. Schardt attaining an erection
and attempting penile-vaginal intercourse. If this were a medi-
cal impossibility for Mr. Schardt, it would cast doubt on all
of the girl’s allegations.” Appellant’s Opening Br. at 44.
[2] Evidence that Mr. Schardt complained to his treating
physicians that he suffered from erectile dysfunction would
7974 SCHARDT v. PAYNE
not have corroborated his denial of his criminal conduct that
did not require penile penetration. The victim testified that
Mr. Schardt molested her seven to ten times per month but
that he attempted penile penetration only a few times. Admit-
ting medical evidence that he complained of erectile dysfunc-
tion might well have been harmful to Mr. Schardt’s defense
because it would have supported the victim’s testimony that
Mr. Schardt rarely attempted penile penetration.
[3] Mr. Schardt has the burden of showing that there is a
reasonable probability that his lawyer’s failure to enter the
doctor’s note into evidence deprived him of a fair trial. He has
failed to do so.
III
Mr. Schardt also contends that the trial judge’s decision to
increase his sentence based on facts not found by the jury vio-
lated his Sixth Amendment right to a trial by jury under
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.
Washington, 124 S. Ct. 2531 (2004).
A
Before we reach Mr. Schardt’s contention about the appli-
cation of Apprendi and Blakely to this case, we must first
determine whether this issue is properly before us. After
denying Mr. Schardt’s petition for habeas corpus relief, the
district court granted a certificate of appealability (“COA”).
Its order states:
The Court finds that petitioner is entitled to a certifi-
cate of appealability on the issues of (1) whether the
petitioner adequately presented his claim that the
federal due process clause requires a heightened
standard of proof when a sentencing factor results in
an exceptional sentence, and (2) whether the peti-
tioner was denied effective assistance of counsel
SCHARDT v. PAYNE 7975
because his attorney failed to discover and use excul-
patory evidence.
The State contends that Mr. Schardt is precluded from raising
the question whether the district court judge violated
Apprendi by enhancing Mr. Schardt’s sentence based solely
on the trial court’s findings because this issue is not clearly
identified in the COA.
[4] We disagree with the State. Under Circuit Rule 22-1(d),
as it existed when Mr. Schardt filed his appeal in this case,
Mr. Schardt had thirty-five days from the district court’s entry
of its order denying a COA to seek a broader COA from this
court.6 Mr. Schardt did not file a motion requesting certifica-
tion of additional issues on appeal within the specified thirty-
five-day period. However, effective January 1, 2004, we
amended Circuit Rule 22-1 to allow additional methods of
seeking an expanded COA. Of particular importance to this
case is new Circuit Rule 22-1(e), which allows a petitioner to
brief uncertified issues in his or her brief to us, using separate
headings in the brief for “certified issues” and “uncertified
issues.” Under this rule, we construe such briefing as a
request for an expanded COA.
[5] We construe Circuit Rule 22-1(e) to apply to merits
briefs filed in this court after the effective date of the rule. Mr.
Schardt filed his supplemental brief addressed to the Blakely
issue on August 2, 2004, seven months after its [the] effective
6
At the time Mr. Schardt filed his appeal, Circuit Rule 22-1(d) read as
follows:
If the district court denies a certificate of appealability in part, the
court of appeals will not consider uncertified issues unless peti-
tioner first seeks, and the court of appeals grants, broader certifi-
cation. Petitioners desiring broader certification must file, in the
court of appeals, a separate motion for broader certification,
along with a statement of reasons why a certificate should be
granted as to any issues(s) within thirty-five days of the district
court’s entry of its order denying a certificate of appealability.
7976 SCHARDT v. PAYNE
date [of the rule]. The State, however, points out that Schardt
has not set off its discussion of the Blakely issue under a sepa-
rate heading of “uncertified issues,” as required by Circuit
Rule 22-1(e). While we agree with the State that Schardt
should have complied with this aspect of Circuit Rule 22-1(e),
his noncompliance does not deprive us of jurisdiction to rule
on his request for a COA. Indeed, in the circumstances of this
case, Mr. Schardt’s failure to provide a separate designation
of his Blakely discussion as an “uncertified issue” could
hardly have caused the confusion that this aspect of the rule
is designed to prevent, for Mr. Schardt’s supplemental brief
is directed solely to the Blakely issue.
B
The validity of the sentencing issue presented in Mr.
Schardt’s case is virtually indistinguishable from the question
reviewed by the Supreme Court in Blakely. In both cases, the
judge imposed a sentence greater than the standard range
specified in Washington’s Sentencing Reform Act based on
findings made by the judge, rather than the jury.
[6] In Blakely, the defendant pled guilty to kidnaping his
estranged wife, a class B felony, which carried a maximum
sentence of ten years. 124 S. Ct. at 2534.7 Washington’s Sen-
tencing Reform Act specified a standard range of forty-nine
to fifty-three months. Id. A Washington trial court enhanced
Mr. Blakely’s sentence based on its finding that he acted with
“deliberate cruelty.” Id. at 2534. Before the Supreme Court,
Mr. Blakely argued “that this sentencing procedure deprived
him of his federal constitutional right to have a jury determine
beyond a reasonable doubt all facts legally essential to his
sentence.” Id. at 2536. The Supreme Court agreed and held
7
Wash. Rev. Code § 9A.20.021(1)(b) provides, “For a class B felony,
by confinement in a state correctional institution for a term of ten years,
or by a fine in an amount fixed by the court of twenty thousand dollars,
or by both such confinement and fine.”
SCHARDT v. PAYNE 7977
that Mr. Blakely’s sentence was invalid. Id. at 2538. The
Supreme Court instructed:
Our precedents make clear . . . 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. When a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not
found all the facts “which the law makes essential to
the punishment,” and the judge exceeds his proper
authority.
Id. at 2537 (citations omitted) (emphasis in the original).
[7] Under Washington law the maximum sentence for a
class A felony, such as the rape of a child, is life imprisonment.8
Under Washington’s Sentencing Reform Act, however, the
standard sentence Mr. Schardt would have received for a con-
viction for a single count of rape of a child is 102 months.9
In this matter the trial court doubled this sentence to 204
months based on its own independent findings of fact.
8
Wash. Rev. Code § 9A.20.021 provides in part
Maximum sentences for crimes committed July 1, 1984, and after
(1) Felony. Unless a different maximum sentence for a clas-
sified felony is specifically established by a statute of this
state, no person convicted of a classified felony shall be pun-
ished by confinement or fine exceeding the following:
(a) For a class A felony, by confinement in a state correc-
tional institution for a term of life imprisonment, or by a fine
in an amount fixed by the court of fifty thousand dollars, or
by both such confinement and fine . . . .
9
Wash. Rev. Code § 9.94A.510 (Table 1).
7978 SCHARDT v. PAYNE
Clearly, under Blakely, the state court erred in sentencing Mr.
Schardt on the basis of facts not found to be true by a jury.
The critical distinction between this case and Blakely is that
Blakely was decided by the Supreme Court on a writ of cer-
tiorari from the defendant’s direct appeal of his conviction.
Id. at 2536. Mr. Schardt’s case comes before us as a collateral
attack on his sentence. If Mr. Schardt’s case were still pend-
ing on direct appeal when Blakely was decided, we would be
compelled to hold that Blakely was applicable. See Griffith v.
Kentucky, 479 U.S. 314, 322 (1987) (“[F]ailure to apply a
newly declared constitutional rule to criminal cases pending
on direct review violates basic norms of constitutional adjudi-
cation.”).
A state prisoner whose conviction is final may not automat-
ically have the rule from a subsequently decided case applied
in a petition for habeas corpus pursuant to § 2254. Teague v.
Lane, 489 U.S. 288, 310 (1989). Congress has mandated that
“[a] claim presented in a second or successive habeas corpus
application under [28 USCS § 2254] that was not presented in
a prior application shall be dismissed unless . . . the applicant
shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(2)(A). We held in Cook v. United States, 386 F.3d
949 (9th Cir. 2004) that the Supreme Court has not made
Blakely retroactive to cases on collateral review. Id. at 950.
[8] Cook does not control our decision here, however,
because this is Mr. Schardt’s initial petition, not a second or
successive petition. In Teague v. Lane, the Court addressed
the issue of whether a decision announced after a state prison-
er’s conviction becomes final can be applied retroactively.
Teague lays out a three-part test for the retroactive application
of a Supreme Court decision. Teague, 489 U.S. at 299-310.
This process was reiterated in Beard v. Banks, 124 S. Ct. 2504
(2004) as follows:
SCHARDT v. PAYNE 7979
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 non-
retroactivity.
Id. at 2510 (citations and quotations omitted). The Court fur-
ther explained that the two types of rules that are the excep-
tions to nonretroactivity are (1) “rules forbidding punishment
of certain primary conduct or to rules prohibiting a certain
category of punishment for a class of defendants because of
their status or offense”; and (2) “watershed rules of criminal
procedure implicating the fundamental fairness and accuracy
of the criminal proceeding.” Id. at 2513 (citations, quotations
and alterations omitted).
Before addressing each of these factors, we note that the
Tenth Circuit has held that Blakely does not apply retroac-
tively to cases on collateral appeal. See United States v. Price,
400 F.3d 844, 849 (10th Cir. 2005) (Blakely does not apply
retroactively to petitions brought under 28 U.S.C. § 2255);
Young v. Neet, No. 04-1441, 2005 U.S. App. LEXIS 5382, at
*9 (10th Cir. April 5, 2005) (Blakely does not apply retroac-
tively to petitions brought under 28 U.S.C. § 2254). Several
other circuits have held that United States v. Booker, 125
S. Ct. 738 (2005), which extends the reasoning of Blakely to
the federal sentencing guidelines, is not retroactive. See
Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005)
(Booker does not apply retroactively to petitions brought
under 28 U.S.C. § 2255); Humphress v. United States, 398
F.3d 855, 860-63 (6th Cir. 2005) (same); McReynolds v.
United States, 397 F.3d 479, 480-81 (7th Cir. 2005) (same);
Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005)
(2d Cir. April 8, 2005) (same).
7980 SCHARDT v. PAYNE
We address each of the Teague factors in turn.
1. When did Mr. Schardt’s conviction become final?
[9] Mr. Schardt’s conviction became final on December 22,
2000, after Apprendi was decided on June 26, 2000, but well
before Blakely was announced on June 24, 2004.
2. Did Blakely announce a new rule?
We have previously held that Apprendi announced a new
rule. Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). Mr.
Schardt may have the benefit of the new rule announced in
Apprendi, because his case was not final when Apprendi was
decided. See Griffith, 479 U.S. 328 (when a Supreme Court
decision results in a new rule, that rule applies to cases still
pending on direct appeal). If Blakely created a new rule, how-
ever, Mr. Schardt cannot have the benefit of that rule because
his conviction was final when Blakely was announced, unless
his claim fits within the Teague exceptions. We therefore
must determine whether Blakely created a new rule.
In Teague, the Supreme Court instructed as follows:
It is admittedly often difficult to determine when
a case announces a new rule, and we do not attempt
to define the spectrum of what may or may not con-
stitute a new rule for retroactivity purposes. In gen-
eral, however, a case announces a new rule when it
breaks new ground or imposes a new obligation on
the States or the Federal Government.
Teague, 489 U.S. at 301 (citations omitted).
Mr. Schardt contends that Blakely did not announce a new
rule. Instead, he argues that in Blakely, the Court simply
applied the rule set forth in Apprendi. In support of this argu-
ment, he quotes the following language from Blakely:
SCHARDT v. PAYNE 7981
This case requires us to apply the rule we
expressed in Apprendi . . . .
. . . In Ring v. Arizona . . . we applied Apprendi
to an Arizona law that authorized the death penalty
if the judge found one of ten aggravating factors. . .
.
. . . Our commitment to Apprendi in this context
reflects not just respect for longstanding precedent,
but the need to give intelligible content to the right
of jury trial. . . .
. . . Those who would reject Apprendi are resigned
to one of two alternatives.
Blakely, 124 S. Ct. at 2536-39.
The State argues that the Court created a new rule in
Blakely. In support of this argument, the State points to Simp-
son v. United States, 376 F.3d 679 (7th Cir. 2004) in which
the Seventh Circuit held that Blakely did more than just apply
Apprendi; it created a new rule that was not compelled by
Apprendi or its progeny. Id. at 681.
In Beard, the Supreme Court recently revisited the question
whether a case creates a new rule. The Court instructed: “We
must . . . ask ‘whether the rule later announced . . . was dic-
tated by then-existing precedent — whether, that is, the
unlawfulness of [the] conviction was apparent to all reason-
able jurists.’ ” 124 S. Ct. at 2511 (quoting Lambrix v. Single-
tary, 520 U.S. 518, 527-28 (1997)) (emphasis in the original).
[10] Every circuit court of appeals that addressed the ques-
tion presented in Blakely reached the opposite conclusion
from the rule subsequently announced by the Supreme Court.
See, e.g., United States v. Hughes, 369 F.3d 941, 946-47 (6th
Cir. 2004) (once the jury has determined guilt, the judge may
7982 SCHARDT v. PAYNE
give the defendant a sentence of up to the statutory maximum
based on findings made by the judge by a preponderance of
the evidence); United States v. Francis, 367 F.3d 805, 820
(8th Cir. 2004) (same); United States v. Jardine, 364 F.3d
1200, 1209 (10th Cir. 2004); United States v. Alvarez, 358
F.3d 1194, 1211-12 (9th Cir. 2004) (same); United States v.
Phillips, 349 F.3d 138, 143 (3rd Cir. 2003) (same); United
States v. Patterson, 348 F.3d 218, 228-29 (7th Cir. 2003)
(same); United States v. Randle, 304 F.3d 373, 378 (5th Cir.
2002) (same); United States v. Sanchez, 269 F.3d 1250, 1267-
69 (11th Cir. 2001) (same); United States v. Webb, 255 F.3d
890, 898 (D.C. Cir. 2001) (same); United States v. Angle, 254
F.3d 514, 518 (4th Cir. 2001) (same); United States v. Caba,
241 F.3d 98, 101 (1st Cir. 2001) (same); United States v. Gar-
cia, 240 F.3d 180, 183-84 (2nd Cir. 2001) (same). Thus, the
rule announced in Blakely was clearly not apparent to all rea-
sonable jurists, nor was it dictated by precedent.
3. Did Blakely create a new substantive rule?
In its amicus brief, the NACDL argues that the rule in
Blakely is a new substantive rule, rather than a procedural rule.10
New substantive rules generally apply retroactively.
This includes decisions that narrow the scope of a
10
Mr. Schardt maintains that Apprendi should apply to his case because
the “Apprendi/Blakely burden of proof holding is substantive and exempt
from Teague for that . . . reason” and also that “the burden of proof hold-
ing is watershed and exempt from Teague for that second additional rea-
son.” But in making this argument, Mr. Schardt has confused Teague’s
requirements. To prevail, he does not need to persuade us that Apprendi
is an exception to the rule in Teague; Apprendi was decided while Mr.
Schardt’s case was still on direct review. Therefore, the rule announced in
Apprendi can be asserted by Mr. Schardt in a § 2254 petition. Griffith, 479
U.S. at 328. The real issue in this appeal, however, as correctly noted in
the amicus brief, is whether Blakely applies retroactively. Although the
headings of his arguments that Apprendi is substantive and a watershed
rule lump Blakely in with Apprendi, his brief addresses only Apprendi.
The amicus brief correctly focuses on Blakely.
SCHARDT v. PAYNE 7983
criminal statute by interpreting its terms, as well as
constitutional determinations that place particular
conduct or persons covered by the statute beyond the
State’s power to punish. Such rules apply retroac-
tively because they necessarily carry a significant
risk that a defendant stands convicted of an act that
the law does not make criminal or faces a punish-
ment that the law cannot impose upon him.
Schriro v. Summerlin, 124 S. Ct. 2519, 2522-23 (2004) (cita-
tions, quotations and footnotes omitted) (emphasis in the orig-
inal).
The amicus brief maintains that the principle announced in
Blakely is a substantive rule because it holds that the jury
must make findings that enhance a sentencing decision. We
disagree. The Supreme Court has instructed that “[r]ules that
allocate decisionmaking authority in this fashion are prototyp-
ical procedural rules . . . .” Schriro, 124 S. Ct. at 2523.
Blakely allocated some of the decision-making authority pre-
viously held by judges to juries. Blakely, 124 S. Ct. at 2537.
It is therefore a procedural rule.
4. Did Blakely announce a watershed procedural rule?
[11] New procedural rules generally do not apply retroac-
tively, unless they amount to “ ‘watershed rules of criminal
procedure’ implicating the fundamental fairness and accuracy
of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484,
495 (1990) (quoting Teague, 489 U.S. at 311). To fit within
this exception, the rule must be one “without which the likeli-
hood of an accurate conviction is seriously diminished.”
Teague, 489 U.S. at 313. Blakely did not announce a water-
shed rule of criminal procedure. The Tenth Circuit has
recently explained:
First, Blakely does not affect the determination of a
defendant’s guilt or innocence. Rather, it addresses
7984 SCHARDT v. PAYNE
only how a court imposes a sentence, once a defen-
dant has been convicted.
Further, the Supreme Court has previously deter-
mined that a change in the law requiring that juries,
rather than judges, make the factual findings on
which a sentence is based did not announce a water-
shed rule of criminal procedure. See Summerlin, 124
S. Ct. at 2524-26. Similarly, we have previously held
that a change in the law requiring juries to find these
sentencing facts beyond a reasonable doubt, rather
than by a preponderance of the evidence, also does
not announce a watershed rule of criminal procedure.
See United States v. Mora, 293 F.3d 1213, 1219
[10th Cir. 2002](holding Apprendi, including its
quantum of proof requirement, did not announce
watershed rule); see also Sepulveda v. United States,
330 F.3d 55, 61 (1st Cir. 2003) (holding, in address-
ing Apprendi’s retroactivity, that “ ‘a decision . . . by
a judge (on a preponderance standard) rather than a
jury (on the reasonable-doubt standard) is not the
sort of error that necessarily undermines the fairness
. . . of judicial proceedings,’ ” quoting Curtis v.
United States, 294 F.3d 841, 843 (7th Cir 2002));
Coleman v. United States, 329 F.3d 77, 88-90 (2d
Cir. 2003) (rejecting argument that Apprendi’s
requiring Government to prove sentencing factors
beyond a reasonable doubt was watershed rule of
criminal procedure).
Price, 400 F.3d at 848-49 (footnotes omitted). We agree with
this analysis. We hold that Blakely did not announce a water-
shed rule of criminal procedure.
C
[12] Mr. Schardt also contends that he is entitled to relief
under 28 U.S.C. § 2254(d)(1). Under this statute, a state pris-
SCHARDT v. PAYNE 7985
oner is entitled to relief if his case “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” The rule established in Blakely —
that the statutory maximum 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, rather than facts
found by the judge — was not clearly established by a
Supreme Court decision at the time Mr. Schardt’s case
became final on direct appeal. It was a new rule, as explained
above. We have held that if a case creates a new rule under
Teague, then it is not a clearly established rule under 28
U.S.C. § 2254(d)(1). See Himes v. Thompson, 336 F.3d 848,
855 n.4 (9th Cir. 2003) (explaining that because a defendant’s
case was adjudicated prior to a decision that announced a rule
he wanted applied in his case, 28 U.S.C. § 2254(d)(1) would
bar the application of that rule if that case established a new
rule of constitutional law according to the principles of
Teague v. Lane); see also Vasquez v. Strack, 228 F.3d 143,
149 (2d Cir. 2000) (noting that if a rule is a new rule under
Teague, it is not clearly established federal law within the
meaning of 28 U.S.C. § 2254(d)(1)). Thus, Mr. Schardt’s
argument under 28 U.S.C. § 2254(d)(1) also fails.
D
Mr. Schardt further asserts that “[f]ederal due process law
should also compel the conclusion that Blakely must apply
retroactively to this case. . . . [I]t is impermissible for the state
courts to deny a criminal defendant a forum in which to raise
the fact that he was convicted without the state proving all of
the pre-existing elements beyond a reasonable doubt — and
aggravating sentencing factors are akin to pre-existing ele-
ments.” In support of this argument, Mr. Schardt relies on
Fiore v. White, 531 U.S. 225 (2001), and Bunkley v. Florida,
538 U.S. 835 (2003). These cases are readily distinguishable.
In Fiore, the defendant was convicted of operating a hazard-
ous waste facility without a permit pursuant to Title 35
7986 SCHARDT v. PAYNE
§ 6018.401(a) of the Pennsylvania code. 531 U.S. at 226-27.
In fact, he had a permit, but he operated the dump in a way
that violated its terms. Id. at 227. After his conviction became
final, the Pennsylvania Supreme Court interpreted the relevant
statute in such a way that it became clear that Mr. Fiore
should not have been convicted as charged. His conduct was
not proscribed by the statute, because it applied solely to per-
sons operating a hazardous waste facility without a permit. Id.
at 226-27. The Pennsylvania Supreme Court further held that
this rule was not new, but had always been the correct inter-
pretation of the law. Id. at 228. The Supreme Court of the
United States reversed the defendant’s conviction holding that
“[w]e have held that the Due Process Clause of the Fourteenth
Amendment forbids a State to convict a person of a crime
without proving the elements of that crime beyond a reason-
able doubt.” Id. at 228-29 (citation omitted).
In Bunkley, the defendant was convicted of first degree bur-
glary. 538 U.S. at 837. His charge was based in part on the
fact that he had a pocket knife with a blade 2-1/2 to 3 inches
long, which the trial court considered a “dangerous weapon.”
Id. at 836-37. After he was convicted, the Florida Supreme
Court interpreted the meaning of “dangerous weapon” in L.B.
v. State, 700 So. 2d 370 (Fla. 1997) (per curiam). It held that
a knife with a blade of 3-3/4 inches did not constitute a dan-
gerous weapon within the meaning of the statute. Bunkley,
538 U.S. at 837. The defendant in Bunkley filed a motion for
postconviction relief, based on the court’s holding in L.B. The
Florida Supreme Court denied the motion, holding that its
decision did not apply retroactively. Id. at 838. It held,
instead, that the decision in L.B. (holding that a knife of 3-3/4
inches was not a dangerous weapon) was “a change in the law
which culminated the century-long evolutionary process.” Id.
at 841 (citations and alterations omitted). Applying the rule
announced in Fiore, the United States Supreme Court vacated
the state court judgment. The Court explained its reasoning as
follows:
SCHARDT v. PAYNE 7987
For the first time, the Florida Supreme Court inter-
preted the common pocketknife exception, and its
interpretation covered the weapon Bunkley pos-
sessed at the time of his offense. In the face of such
doubt, Fiore entitles Bunkley to a determination as
to whether L. B. correctly stated the common pocket-
knife exception at the time he was convicted.
Id.
[13] Mr. Schardt contends that, after Apprendi, exceptional
sentencing factors are facts akin to elements that must be
proved beyond a reasonable doubt. Therefore, he argues the
trial court’s finding was unconstitutional in 1999. This argu-
ment is unpersuasive. No court has ruled that Mr. Schardt’s
conduct was beyond the power of the criminal law to punish.
Unlike the circumstances in Bunkley, it is clear that the trial
judge’s sentencing decision in this matter did not violate any
constitutional principle announced by the United States
Supreme Court before his sentence became final. The
Supreme Court announced a new rule in Blakely — one that
worked a significant change in the law as it was understood
up to that point.
Conclusion
[14] We conclude that Mr. Schardt failed to demonstrate
that he was denied the effective assistance of counsel. We
also hold that the Supreme Court announced a new rule in
Blakely v. Washington that does not apply retroactively to a
conviction that was final before that decision was announced.
Therefore, the state court’s sentencing decision cannot be
challenged in a petition for habeas corpus.
AFFIRMED.