Butler v. Curry

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, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 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…