One of the big issues with applying the Supreme Court's opinion in Booker and FanFan is whether it is retroactive and applies to cases that are no longer on direct appeal or review. Today the Sixth Circuit joins the Seventh Circuit in ruling that the decision is not retroactive. The case is Humphress v. United States and you can read the opinion here (pdf).

In a supplemental brief, Humphress argues that his sentence was increased on the basis of facts found by the sentencing court, in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the Supreme Court’s intervening decision in United States v. Booker, 125 S. Ct. 738 (2005), which now governs Humphress’s Blakely claim, does not apply retroactively to cases already final on direct review and because there is no reasonable probability that, but for his counsel’s allegedly deficient performance, Humphress would have pled guilty, we will AFFIRM the district court’s denial of the § 2255 motion.

Law Prof Doug Berman of Sentencing Law and Policy adds some analysis.