Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:00-cr-00069-AHN Document 225 Filed 04/25/2005 Page 1 of 4
i UNITED STATES DISTRICT COURT
§ :\xW§i€ DISTRICT OF CONNECTICUT
\ CLINTON COX, 2;\j CASE NO. 3:O4—CV-1383(AHN) 5
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X UNITED STATES OF AMERICA, ,
i Respondent: \
TRAVERSE I
The following is, Petitioner, Clinton Cox's, pro—se Traverse 2
to the Government's Response Opposing His Pleading entitled "Notice
of Judicial Cognizance" filed February 8, 2005. In support of it
is stated: i
Discussion E
These cases addressed only the allocation of factfinding p
responsibility between the judge and the jury. However, there is
a second component to Blakely[Bo0ker that these cases did not I
address, namely, the facts used to enhance a sentence, if not
admitted, must be proven beyond a reasonable doubt rather than
by a preponderance of the evidence standard.
The Supreme Court has acknowledged that the standard of proof
can significantly impact factfinding accuracy and society's confi· S
dence in the result. In re Winship, 397 U.S. 358, 363 (1970)`
("The reasonable doubt standard plays a vital role in the American %
scheme of criminal procedure. It is a prime instrument for reducing i
the risk of convictions resting on factual error") and at 364
("the reasonable doubt standard is indispensable to command the
respect and confidence of the community in applications of the
criminal law"); Ivan v. City of New York, 407 U.S. 203, 205 (1972)
(purpose of reasonable doubt standard is "to overcome an aspect of i
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, Case 3:00-cr-00069-AHN Document 225 Filed 04/25/2005 Page2of4
\ a criminal trial that substantially impairs the truth-finding (
! function, and Hin5hip_is thus to be given complete retroactive
R effect to rule requiring proof of all elements of crime beyond a {
Q reasonable doubt and voiding presumptions that shift burden of
` proof to defendants). a
5 Winship, Tyan and Hankerson, decisions also concerned the
i validity of the underlying conviction, rather than a sentence
enhancement. On the otherhand, at least five Justices have said ,
that sentence enhancements are of sufficient importance to warrant i
application of the reasonable doubt standard in some instances. i
See, Apprendi, Blakely and Booker, supra. Given this hiSt0fy
of Supreme Court case law, this Court cannot exclude the possi— g
bility that the Court might apply Blakely/Booker retroactively X
in some situations. {
This Circuit panel relied upon a narrow interpretation of
Apprendi that has now been repudiated in Blakely and Booker. The E
bottom line is that existing precedent does not definitively I
answer whether the rule announced in Blakely/Booker applies ;
retroactively. See, the dissenting party in Blakely that sums up
the new rule by stating:
" .... despite the fact that we held in Schriro -
v. summeriiu, [542 11.s. (2004)], n¤??@ Q
LA f endi W on Us any m;;;;.
_ y on eas review, a crimin · sen e I
imposed under the Federal and State guidelines
since Apprendi was decided in 2000 arguably re- l
main open to collateral attack."
Blakely, 124 S.Ct. 2531 (2004) Justice O' Connor dissenting (The
author of Teague v. Lane, 489 U.S. 283 (1989)).
Under the standards first articulated in Teague, the only
apparent justification for retroactive application of Blakely/
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I _ Case 3:00-cr-00069-AHN Document 225 Filed 04/25/2005 Page 3 of 4
¤ Booke; would be to redress potential miscarriages of justice re- E
I sulting from an inaccurate fact—finding procedure.
I Assuming that the rule announced in Blakely/Booker applies Q
I retroactively, relief would be limited to persons presently ser— I
3 Ving a sentence that was enhanced on the basis of contested facts 5
I that were not found to be true, beyond a reasonable doubt, nor
I admitted by the defendant. Only if a defendant actually disputed
the facts that resulted in the sentence enhancement, and the Court I
decided the matter against him, can the defendant show that he may
have been prejudiced by application of the wrong standard of proof. I
This is such a case. I
Conclusion I
This Court should note that the Petitioner may have no otherw I
available procedures through which he may challenge the constitu— I
tionality of his sentence and conviction under Apprendi/Booker. I
Denial of the instant motion because the new rule was not made I
retroactively applicable for the purpose of collateral review I
amounts to a violation of the Due Process Clause and the Suspension I
of the Writ Clause. I

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` I _ ,_ Case 3:00-cr-00069-AHN Document 225 Filed 04/25/2005 Page 4 of 4 I
CERTIFICATE OF SERVICE c
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I, C I in t On COX , hereby certifynthat I have served a true
and correct copy of the foregoing: I
Reply to Government's response opposing_amendment.
Which is deemed tiled at the time it was delivered to prison authorities for forwardiiig to l
M itl1eicoiutt,,Houetoravs aLack,»l0tl~L.,Ed=2d-245-Q1-988);~upon~tl2ie—-eeurt—arnd—paities-to-·---————~;—e I
- litigation and/or his/her attomey(s) of record, by placing same iii a sealed, postage g
prepaid envelope addressed to: { I l
J2 M es JY xqnner ,v ` l
‘ ` U.S. Atto1:·ney's Office dfefé cfxlé 4,0u/•'l[' .
4% Fbdm ki ¢ `
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and deposited same in the United States Postal Mail at the United ·States,_P enitentiary, ·
` Signed OH this 181:1*1 day Of April I 2005 i I
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I Respectfully Submitted, l
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