Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Bright, Circuit Judge.
Submitted: March 12, 2010
Before RILEY, Chief Judge,*fn1 BRIGHT, and WOLLMAN, Circuit Judges.
Antonio Darrail Burton appeals from a district court determination denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Burton argues his sentence was imposed in violation of Cunningham v. California, 549 U.S. 270 (2007). The district court*fn2 issued a certificate of appealability on the issue of whether Cunningham may be applied retroactively to Burton's case. Because we conclude that Burton may not collaterally attack his sentence based on Cunningham, we affirm.
In 1998, a jury convicted Burton of criminal sexual conduct, aggravated robbery, burglary, and related crimes. At sentencing, the Minnesota district court determined that Burton's crimes included the presence of several aggravating factors and departed upward from the Minnesota Sentencing Guidelines. The court sentenced him to 464 months' (38 years, 8 months) imprisonment.
Burton appealed his conviction and sentence. On August 3, 1999, the Minnesota Court of Appeals affirmed in part and reversed in part, remanding one of Burton's burglary convictions for resentencing. The Minnesota Supreme Court denied Burton's petition for further review on September 14, 1999. On remand, the district court vacated one of the burglary counts and reduced Burton's sentence to 416 months' imprisonment in an order dated May 9, 2000.
Burton petitioned for state post-conviction relief, claiming his conviction should be set aside because of newly discovered evidence and ineffective assistance of counsel. The district court denied his petition, and the Minnesota Court of Appeals affirmed on October 15, 2002.
Burton filed a second state post-conviction petition on August 25, 2005, claiming his sentence was unconstitutional in light of Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), because he was sentenced above the presumptive guideline range based on aggravating factors not found by a jury. On January 6, 2006, the district court denied Burton's second petition, and the Minnesota Court of Appeals affirmed on January 5, 2007. The Minnesota Supreme Court denied further review on March 28, 2007, and the United States Supreme Court denied his petition for a writ of certiorari on January 14, 2008.
Burton filed this habeas corpus petition on March 17, 2008. He argued that his sentence was unconstitutional because the judge made factual determinations by a preponderance of the evidence. On April 11, 2008, the magistrate judge*fn3 issued a report and recommendation, concluding Burton's petition was time barred and should be dismissed. On May 22, 2008, the district court adopted the report and recommendation, determining that Apprendi and Blakely could not be applied retroactively to Burton's case and that Burton's petition was outside the one-year statute of limitations period. The court also held that Cunningham did not apply retroactively, but issued a certificate of appealability on that issue.
On appeal, we consider whether Cunningham should be applied retroactively to Burton's case. Cunningham follows a litany of Supreme Court cases considering whether various sentencing laws violate the Sixth Amendment. The first of these cases is Apprendi v. New Jersey, 530 U.S. 466 (2000).
In Apprendi, the Court considered whether a sentencing judge could impose an extended term of imprisonment beyond the statutory maximum based on judge-found facts. Apprendi was convicted of an offense punishable by five to ten years' imprisonment. Id. at 468. However, he was sentenced to twelve years' imprisonment based on the sentencing judge's finding that he committed the crime with the purpose of intimidating protected groups. Id. at 471. The Supreme Court reversed the sentence, holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
Four years later, in Blakely v. Washington, 542 U.S. 296 (2004), the Court decided what constitutes the "statutory maximum" under Apprendi. Blakely pled guilty and faced a statutory maximum of ten years' imprisonment. Id. at 299. But Blakely could not be sentenced above a "standard range" of 49 to 53 months unless the sentencing judge found "substantial and compelling reasons justifying an exceptional sentence." Id. (citation omitted). After finding that Blakely acted with "deliberate cruelty," the sentencing judge imposed a sentence above the standard range. Id. at 303. The Supreme Court held that the statutory maximum for purposes of Sixth Amendment analysis is not the maximum sentence stated by the statute but is "the maximum [a judge] may ...