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Name: In re Saade
Case #: G038712
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/16/2008
Subsequent History: rev. granted 8/20/08, S164595
Summary

A habeas corpus petitioner whose conviction became final after Blakely v. Washington (2004) 542 U.S. 296, but before Cunningham v. California (2007) 549 U.S.__, 127 S.Ct. 865, is not entitled to retroactive benefit of the decision in Blakely. In 2003, petitioner was convicted of first degree burglary and sentenced to the aggravated term of six years in state prison, with the trial court justifying the term on the basis of its finding of criminal sophistication. Petitioner appealed and argued that the sentence violated the Sixth and Fourteenth Amendments under the holdings of Blakely, supra, and Apprendi v. New Jersey (2000) 530 U.S. 466. In 2005, the appellate court affirmed the decision, relying on People v. Black (2005) 35 Cal.4th 1238 (Black I). Petitioner’s petition for review was denied August 31, 2005, and the time to file for certiorari expired November 29, 2005. Petitioner then brought a petition for habeas corpus in the trial court, claiming relief on the basis of the subsequently decided Cunningham, supra, and the court granted the petition. The appellate court reversed, determining that although the state court is not limited in granting retroactivity (Danforth v. Minnesota (2008) ___ U.S. ____[128 S.Ct. 1029]), Cunningham, as analyzed under either the Johnson rule (In re Johnson (1970) 3 Cal.3d 404) or Teague v. Lane (1989) 489 U.S. 288, does not apply retroactively on collateral review to a sentence where direct appeal has been exhausted. [This issue is pending in the California Supreme Court, In re Gomez, review granted October 24, 2007 S155425.]