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Name: In re Gomez
Case #: S155425
Court: CA Supreme Court
District CalSup
Opinion Date: 02/02/2009

Cunningham v. California (2007) 549 U.S. 270 applies retroactively to any case in which the judgment was not final at the time of the Blakely v. Washington (2004) 542 U.S. 296 decision. The appellate court denied Gomez’s habeas petition challenging the imposition of an upper term sentence concluding that Cunningham established a new rule which applies only to judgments not yet final at the time it was decided. The California Supreme Court granted review to address the question of whether Cunningham applied on a collateral review of a judgment that became final before Cunningham but after Blakely was decided. The court concluded that Cunningham does apply under those circumstances. Cunningham was not new law, but one dictated by Blakely. Anyone wishing to raise a Blakely challenge to the imposition of an upper term sentence may do so by filing a petition for writ of habeas corpus in the trial court.