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Name: In re Watson
Case #: D055404
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/02/2010

Cunningham applies on collateral review of a judgment that became final before Cunningham but after Apprendi because Apprendi, and not Cunningham, established a new rule of law for purposes of retroactivity analysis. Petitioner, who was convicted in 1999,had a pending appeal when Apprendi was decided. He did not raise an upper-term challenge on appeal. He filed a series of habeas petitions, some to exhaust claims for federal habeas, and six months after Cunningham was decided, one of the petitions included a challenge to upper term sentences based on Apprendi and Cunningham. The appellate court rejected respondent’s argument that the claim was untimely and raised in a successive petition. Petitioner had good cause for the delay because he was waiting the district court’s ruling on an evidentiary hearing on an IAC claim. Regardless, petitioner would be excused from untimeliness because he was sentenced under an unconstitutional law. The court then rejected respondent’s argument that Apprendi did not dictate the holding in Cunningham, finding “the road to Cunningham leads back to Apprendi’s bright-line rule” and did not create new law. It applies to this case. And since appellant’s upper terms were based on factors not found true by a jury beyond a reasonable doubt, remand for resentencing under the principles of People v. Sandoval (2007) 41 Cal.4th 825, is required.