If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you? Of course you would.
But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt. In In re Gomez, case no. B197980 (2d Dist. August 7, 2007), the Court of Appeal holds that Cunningham does not apply retroactively on collateral review to cases that were already final when it was decided.
This result is reached via the rule that:
[A]n old rule applies both on direct and collateral review. A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”
Here, the court finds Cunningham is not a new rule. Hence, Gomez’s habeas petition is denied.
This is a nice, short opinion worth reading for a good lesson in applying the old rule/new rule test for retroactivity.