The United States Supreme Court has ordered the Solicitor General to file a response by January 8, 2007 to a petition filed in Diaz v. United States, a case out of the Second Circuit Court of Appeals.  The case presents two questions:  (1) whether Crawford v. Washington (the hearsay case) and (2) whether Booker v. United States (the federal sentencing guidelines case), should be applied retroactively for habeas corpus (2255) purposes. 

As you may know, an order that the Solicitor General respond to a cert petition is a prerequisite to certiorari being granted.  Very few cases result in orders for a response from the Solicitor General.  It does not necessarily mean that cert will be granted, but it is a harbinger that cert may be granted.  If cert is granted it could come sometime later in January.

What the Diaz case would mean, if cert is granted and the court goes in favor of the defendant and holds Booker retroactive, is that persons who were not still in the direct appeal pipeline when Booker came out, and therefore got sentenced under the mandatory guidelines, and were not able to raise the issue successfuly on appeal, could now file a 2255 habeas and raise Diaz/Booker and be entitled to its application in their 2255 proceeding.

That by itself would not cure all problems for such persons -For example, first off, there would be three or more categories of such persons in terms of the one year deadline for a 2255:

1. Those still in their one year time period before their original 2255 deadline (who in turn may have already filed a 2255 or may not, and if they have, may have already raised Booker issues or may not, and possibly may already have had their 2255 ruled on or may not - possibly six subsets);

2. Those outside the one year time limit, but who had raised a Booker claim within one year of Booker coming out and were denied; and

3. Those outside the one year time period who failed to raise a Booker claim within one year of it coming out.

The first two groups are probably able to raise a Diaz/Booker claim as soon as Diaz is ruled on (except if someone is in the first group and did not include a Booker claim and have already been denied, they may be out of luck, and if they are in the first group and did not raise a Booker claim but their 2255 has not been ruled on, the question would be whether the court would allow their 2255 to be amended, which may turn on whether they now are past the one year and whether the Government has already filed an answer, if no to both, then they can amend, if yes to either, then probably can amend only in the discretion of the court). 

Persons in the third group are probably out of luck and cannot raise a Diaz/Booker claim.

Second, even if a defendant can raise a Diaz/Booker claim, whether they will be entitled to a resentencing based on their claim may well turn on the same "jurisprudential" concerns already developed in each circuit - and this varies circuit by circuit - on whether the claim was preserved at the trial court, whether it was waived by not presenting it on direct appeal if it was preserved at the trial court, if it was not preserved at the trial court, whether the defendant can show plain error.

The bottom line is that such persons will probably be in the same position as persons in their circuit were in who were in the direct appeal pipeline when Booker was decided, meaning some could get relief, some not.  The Supreme Court may also revisit those rules in either Rita or Claiborne, two cases on review at this time.

But for those cases that fit the above criteria, there could be resentencing granted and the court would be able to impose sentence using the Booker principles, that is, advisory guidelines/reasonableness.