This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ramon Tony Cantu, petitioner,
Filed January 10, 2006
Hennepin County District Court
File No. 95054710
John M. Stuart, State Public Defender, Rochelle Rene Winn,
Assistant Public Defender,
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.
Appellant Ramon Tony Cantu challenges the district court’s denial of his petition for postconviction relief, arguing that the upward departure from his presumptive sentence violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Because the rule announced in Blakely is not a watershed rule that is applied retroactively on collateral review to convictions that were final before Blakely was decided, we affirm.
On December 4, 1995, appellant
was sentenced to 278 months in prison after pleading guilty to third-degree
murder under Minn. Stat. § 609.195, subd. 1(a) (1994). The sentence was an upward durational
departure from the sentencing guidelines based on judicial findings of
aggravating factors. In September 2004,
appellant filed a petition for postconviction relief, arguing that the
sentencing departure violated his Sixth Amendment right to a jury trial under Apprendi v.
postconviction relief are collateral attacks on judgments which carry a
presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (
Appellant contends that his sentence violated the Sixth and Fourteenth Amendments of the federal constitution, which, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S. Ct. 2348, 2359 (2000), and Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004), require that any fact used for an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt.
that he is entitled to the retroactive application of the rule announced in Blakely, which issued after his sentence
Appellant does not
dispute that Blakely announced a new
rule, but argues that he is nonetheless entitled to retroactive application of Blakely under the so-called “watershed
rule,” which provides that a new rule of constitutional criminal procedure will
be given full retroactive effect, even to those seeking collateral review, when
the new rule “requires the observance of those procedures that . . . are
implicit in the concept of ordered liberty” or “alter our understanding of the bedrock procedural elements that must be
found to vitiate the fairness of any particular conviction.”
There is no merit
to appellant’s argument. In
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.