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Intriguing Ninth Circuit ruling on scope of Apprendi's prior conviction exception

By Douglas A. Berman

The Ninth Circuit handed down an interesting little habeas ruling today in Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009) (available here).  As this start to the short Kessee opinion highlights, one probably needs to be a hard-core Apprendi and/or habeas fan to really appreciate the panel's work here: What is the scope of the ?prior conviction? exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty?  The Supreme Court has not yet answered that question.  Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision.  When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods...continue to full post

Full post as published by Sentencing Law and Policy on June 23, 2009 (boomark / email).