The Ninth Circuit Court of Appeals today released an opinion in BUTLER v. CURRY, No. 07-56204, a habeas corpus appeal. The panel consisted of Cynthia Holcomb Hall, Susan P. Graber, Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge:
Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an “upper term” sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 127 S. Ct. 856 (2007), agreed, and granted the writ. The State contends that Cunningham, which struck down California’s determinate sentencing law (”DSL”), announced a “new rule” that cannot be applied on collateral review. In the alternative, the State maintains that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (”AEDPA”) have not been met, and that, even if they were, there was no constitutional violation. We conclude that the result in Cunningham was clearly dictated by the Supreme Court’s Sixth Amendment case law, in particular by Blakely v. Washington, 542 U.S. 296 (2004), decided before Butler’s conviction became final. The state court decision in Butler’s case was contrary to this clearly established law. Further, Butler’s constitutional rights were violated when the statutory maximum for his crime was increased on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. We cannot, however, determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. For that reason, we remand to the district court for an evidentiary hearing. . . .