State Blakely Cases Update (still pending cases in green; cert. denied cases in red):

• Abeyta v. California, no. 05-5747, state waived response, cert. denied Oct. 11;
• Cunningham v. California, no. 05-6551, state's response due Oct. 24; no response docketed as of Nov. 1;
• Black v. California, no. 05-6793, response due Nov. 4 (this was the lead case in California).
• Picado v. California, no. ____ (not docketed yet)
• Smylie v. Indiana, no. 04-10472 state's response, upon request of the Court, filed 9/21 (consecutive sentence issue only), cert. denied Oct. 31;
• Gomez v. Tennessee, no. 05-296, state's response filed Oct. 3; distributed for conference of Nov. 4;
• Ramirez v. Hawaii, no. 04-9671 originally on conference list of May 26, but response was ordered; state filed response on July 15, distributed for conference of Sept. 26. Update: cert. denied 10/4/05.

Wild Speculation: Despite the denial of cert. in Abeyta, there's still a chance the Court will take a California case. In Abeyta, like many California cases, the Cal. Supreme Court denied review without prejudice to any relief available following the Court's decisions in Black and Towne. All this meant was that habeas relief might be available if the court held, in either Black or Towne, that the California sentencing scheme violated Blakely; there is no way to reopen a direct appeal once review is denied. Although the Cal. Supreme Court resolved the main question in Black, Towne is still pending. SCOTUS might have been uncomfortable with the finality of Abeyta, perceiving some relief still being possible because Towne is still pending. (We don't know for sure why the Cal. Supreme Court has not dismissed review in Towne. One thing is for sure: it's not because the court plans to revisit the basic question of whether Blakely applies to California's Determinate Sentencing Law. It's probably because Towne involves a twist not present in most cases: the jury acquitted the defendant of the allegation the court ultimately used as an aggravating factor. It's possible the reason the court has neither dismissed Towne in light of Black nor calendared it for argument is that there is a 3-3 split on what to do, and we may have to wait until the governor replaces Janice Rogers Brown.)

In any event, Cal. Blakely cases without any finality problem (real or perceived) have now reached the court. (E.g. Black and Picado.) And there are many more to come. Many California cases were held in the Cal. Supreme Court pending Black. Review was dismissed in many of those cases in early September. New opinions are now issuing in the courts of appeal, applying Black of course. Soon, if not already, second rounds of petitions for review in the Cal. Supreme Court will be filed in those cases. (I have two such cases in which I will be filing such petitions for review in the next few weeks.) Those cases won't decided by the California Supreme Court until a month or two until after they are filed. There then may be a wave of case hitting the U.S. Supreme Court.

On the other hand, SCOTUS may be tired of all this and want a year off before resolving the split (Cal./N.M./Tenn v. N.J., et al.).