Palmieri

MEMORANDUM **

The district court erred by holding that the retroactivity doctrine barred Palmieri’s claim under Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), because Palmieri’s conviction was not final when Blakely was announced— Palmieri had not yet exhausted his state appeals. See Teague v. Lane, 489 U.S. 288, 295 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). The district court also erred by holding that Blakely was not violated because Palmieri admitted the facts necessary for an enhancement. Nothing in the record establishes that Palmieri admitted anything beyond the elements of the crime itself. Nor does anything in the record establish that he knowingly and voluntarily waived his right to have a jury find the aggravating facts.

Nonetheless, violations of Blakely are reviewed under a harmless error standard. See Washington v. Recuenco, 549 U.S. 212 , 126 S.Ct. 2546, 2553 , 165 L.Ed.2d 466 (2006). The California Court of Appeal determined that the Blakely error at Pal-mieri’s sentencing was harmless beyond a reasonable doubt, applying Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). This was not an unreasonable…