IS BLAKELY V. WASHINGTON A “NEW” RULE?
The challenge accepted by the Supreme Court in granting certiorari in Burton v. Stewart was to apply the Teague v. Lane test to its decision in Blakely v. Washington. After determining the preliminary procedural issue of when Mr. Burton’s conviction became final, the first substantive component of this application is determining whether Blakely is a “new” rule or “dictated by precedent.” Because I conclude that Blakely is likely not a “new” rule, I need not explore whether Blakely might meet either of the two exceptions that would grant the decision retroactive status even if it were a “new” rule. To assess whether the Court is likely to conclude that Blakely is a “new” rule in the future, I will look to each of the factors the Court has previously relied on: (1) whether the decision itself overrules an earlier holding or purports to rely on precedent, (2) the extent of disagreement among lower courts about whether Blakely is “new,” and (3) the existence and substance of dissents to th
