As per the Alleyne case, is it retroactive in a case in which the apprendi was brought up on direct appeal while inmate in court

Asked over 1 year ago - Chicago, IL

Inmate incarcerated on life sentences for drug conspiracy, 1st time non violent offender, 3 time honorable discharged veteran, no jury findings as to any c, sentence heAded down by Judge. All three strong issues was either raised in the court or on direct appeal. All 3 issues that were raised on DA were reversed this year by the US Supreme Court. First was the Alleyne case which dealt with Apprendi, then the 52 plain error issue which was reversed in Henderson v. U.S on Feb. 20, 2013, and then the ex post Facto issue which was decided June 10, 2013. All 3 were raised by the inmate while he was either in Disteict court or on Direct appeal. Also, the 7th Circuit was just reversed on all 3 positions this year. Can a recall of Mandate be called in light of these 3 reversals in his case.

Attorney answers (4)

  1. Timothy Witczak

    Contributor Level 11

    2

    Lawyers agree

    Answered . A lot depends on the procedural history of the case. Raising issues on appeal will allow a defendant to receive the benefit of Supreme Court rulings if the defendant's case is still pending at the time the Supreme Court decided the cases. The retroactivity issue has not been resolved yet, but given the impact of these decisions many defendants will file in the district court for relief; the issue will be brought before courts and resolved soon after. If you can provide dates of the appeal, when it was decided and any further docket entries, more specific information can be given. I would be happy to discuss this with you further.

  2. Joshua Sachs

    Contributor Level 19

    2

    Lawyers agree

    Answered . If your case is still pending on direct appeal it is likely that all of those recent decisions will be applicable. If, however, your direct appeal is completely over (which probably means that your petition for certiorari was denied or that the time for filing a petition for certiorari has expired) then you are in a much more difficult position. It is very unusual for the Supreme Court to make a decision retroactively applicable to cases on collateral review. Even such significant cases as Batson and Apprendi are not retroactive. If you are at the collateral review stage you have major problems.

  3. Mark Allen Yurachek

    Contributor Level 13

    2

    Lawyers agree

    Answered . The short answer to your question is that, especially if these were issues that were raised before, your best move is probably to find someone who will file a 2255 petition on behalf of the inmate. There has not been a determination as to retroactive application of any of these rulings, but certainly he is in a strong position to argue that he should received the benefit of those issues if he raised them before and did not get relief. The big problem is persuading a court that the decisions you have mentioned should have retroactive application, but you seem to understand that that will be an issue.

    My strong suggestion, if you feel like these are issues in the inmate's case, is to contact an attorney who works in appeals and post-conviction and discuss the case with them with an eye toward getting any of these issues that apply back into court as soon as possible.

  4. Stephen F Wallace

    Contributor Level 19

    1

    Lawyer agrees

    Answered . Retroactivity has not yet been established as mentioned above. Could you be more specific about how we can apply these cases directly to your question. Did your inmate raise these issues already and all were struck down?

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