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A Northern District of New York judge has ruled that the two recent watershed criminal rights rulings from the U.S. Supreme Court — Crawford v. Washington and Blakely v. Washington — do not apply retroactively. Senior U.S. Judge Thomas J. McAvoy’s ruling this week in Garcia v. U.S., 04-CV-0465, represents the latest in a plethora of often conflicting judicial decisions predicated on Crawford and Blakely. Both rulings have created wide confusion, leaving trial courts speculating on the impact of the decisions and eager for clarification from Washington, D.C. In Crawford, the Supreme Court held that the Sixth Amendment’s Confrontation Clause bars the trial use of statements made to law enforcement authorities by witnesses who cannot be cross-examined. Blakely extended the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000) and held that any fact that increases a sentence must be proven to a jury beyond a reasonable doubt. Apprendi dealt with sentences beyond the statutory range; Blakely, with sentences within it. The case before McAvoy raised both Crawford and Blakely issues. It involved a convicted drug dealer, Darberto Garcia, who is serving 360 months under federal sentencing guidelines after pleading guilty to distributing and conspiring to distribute crack cocaine. Garcia was among several people indicted on the conspiracy charges. All but he and one other pleaded guilty. After it became clear that co-conspirators would testify against Garcia, he reached out to the government in hopes of negotiating a plea deal. The prosecution refused to bargain, leaving Garcia with the option of pleading to the entire indictment or proceeding to trial. He pleaded guilty. The 2nd U.S. Circuit Court of Appeals upheld his conviction, rejecting all of his appellate arguments, including a claim of ineffective assistance. The matter returned to McAvoy on a motion, underpinned by Crawford and Blakely, to set aside the sentence under 28 U.S.C. �2255. Garcia, appearing pro se, argued that under Crawford he was denied his Sixth Amendment right to confront his accusers — the co-conspirators whom the prosecution threatened to question at trial, prompting his guilty plea. The issue before McAvoy was whether Crawford retroactively applied to convictions under collateral review. “A review of the decision in Crawford confirms that that case is entirely about procedure — whether testimonial statements of a witness who does not appear at trial are admissible,” Judge McAvoy said. “Because Crawford announced a procedural, rather than substantive, rule, it does not apply retroactively on habeas review unless it fits within one of the two narrow exceptions.” TWO EXCEPTIONS The exceptions are identified in Teague v. Lane, 489 U.S. 288 (1989). Teague is triggered, McAvoy wrote, only when new rules move a whole category of conduct beyond the scope of criminal law or prohibit certain forms of punishment for a particular class of defendant, or when the new procedural rules are crucial to the fundamental fairness of the proceeding. “It is clear that Crawford did not alter our understanding of the bedrock procedural elements essential to the fairness of criminal proceedings, but, rather, clarified the mechanism by which the reliability of testimonial statements is determined by requiring an opportunity for cross-examination before it can be admitted into evidence, regardless of any other indicia of reliability surrounding the statements,” McAvoy wrote. Similarly, he said Blakely did not effect a new rule of law but extended the Apprendi rule. Since Apprendi is not retroactively applicable to collateral challenges, neither is Blakely, the court found. Consequently, Garcia’s guidelines-based sentence stands. Assistant U.S. Attorney Miroslav Lovric of Binghamton appeared for the prosecution.

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