Mark Thompson, Jr. v. Warden, Belmont Correctional Insti ( 2010 )


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  •                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                         File Name: 10a0075p.06
    
                    UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________
    
    
                                                     X
           Petitioner-Appellee/Cross-Appellant, -
     MARK THOMPSON, JR.,
                                                      -
                                                      -
                                                      -
                                                           Nos. 08-3743/3744
             v.
                                                      ,
                                                       >
                                                      -
          Respondent-Appellant/Cross-Appellee. -
     WARDEN, Belmont Correctional Institution,
                                                      -
                                                     N
                       Appeal from the United States District Court
                      for the Southern District of Ohio at Columbus.
                  No. 07-00051—Edmund A. Sargus, Jr., District Judge.
                                       Argued: January 14, 2010
                                 Decided and Filed: March 18, 2010
                                                                                                   *
       Before: BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.
    
                                         _________________
    
                                              COUNSEL
    ARGUED: Thelma Thomas Price, OFFICE OF THE OHIO ATTORNEY GENERAL,
    Columbus, Ohio, for Appellant. Stephen P. Hardwick, OFFICE OF THE OHIO
    PUBLIC DEFENDER, Columbus, Ohio, for Appellee. ON BRIEF: Thelma Thomas
    Price, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
    Appellant. Stephen P. Hardwick, OFFICE OF THE OHIO PUBLIC DEFENDER,
    Columbus, Ohio, for Appellee.
                                         _________________
    
                                               OPINION
                                         _________________
    
            RONALD LEE GILMAN, Circuit Judge. Mark Thompson, Jr. filed a petition
    for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contesting the constitutionality
    
    
    
            *
            The Honorable Jon P. McCalla, Chief United States District Judge for the Western District of
    Tennessee, sitting by designation.
    
    
                                                     1
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    of his state convictions and sentences for theft of a motor vehicle, possession of crack
    cocaine, carrying a concealed weapon, and receiving stolen property.                Among
    Thompson’s arguments was a challenge to the state trial court’s finding facts used to
    increase his sentence without submitting the matter to a jury. Thompson claims that his
    Sixth Amendment rights were violated and that his appellate counsel was ineffective for
    failing to raise the issue on his direct appeal. The district court conditionally granted the
    habeas petition on both grounds, vacating Thompson’s sentences and directing the state
    either to release him from incarceration or to reinstate his direct appeal within 60 days.
    
            Both sides have appealed, with the Warden contesting the grant of habeas relief
    and Thompson contesting the limited remedy granted by the district court. For the
    reasons set forth below, we REVERSE the district court’s grant of habeas relief.
    
                                       I. BACKGROUND
    
            In March 2005, in the Jefferson County Court of Common Pleas, a jury found
    Thompson guilty of possession of crack cocaine, carrying a concealed weapon, and
    receiving stolen property. Thompson was convicted by a jury of a fourth offense—theft
    of a motor vehicle—roughly one month later in the same court. The trial court sentenced
    Thompson for these four convictions during two separate sentencing hearings. At each
    hearing, the trial court made independent factual findings that allowed it to enhance
    Thompson’s sentences from the normally applicable statutory minimum to the statutory
    maximum for each offense, and that further enabled the court to specify that Thompson’s
    sentences would be served consecutively rather than concurrently.              As a result,
    Thompson received four consecutive sentences of eighteen months’ imprisonment,
    comprising a total sentence of 72 months of imprisonment.
    
            Thompson filed two separate appeals, one for the first three convictions and
    sentences and another for the conviction and sentence relating to the theft of a motor
    vehicle. The Ohio Court of Appeals’ Seventh District rejected both appeals on
    December 16, 2005. In each appeal, Thompson argued that the trial court had erred by
    imposing the statutory maximum sentence. He did not, however, argue that the Ohio
    Nos. 08-3743/3744       Thompson v. Warden, Belmont                                  Page 3
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    sentencing laws, which required the trial court to make specific factual findings before
    it could increase his sentences from the statutory minimum to the statutory maximum,
    violated his Sixth Amendment right to a jury trial as elucidated in Blakely v. Washington,
    
    542 U.S. 296
     (2004). (Blakely was issued by the Supreme Court on June 24, 2004,
    roughly nine months before Thompson’s four convictions in the present case.)
    
            Thompson failed to file a timely motion for leave to appeal with the Ohio
    Supreme Court. Instead, his new counsel filed a motion for a delayed appeal with that
    Court in February 2006. Substantively, the motion addressed all four of Thompson’s
    convictions and sentences, arguing both that Thompson’s sentences were imposed in
    violation of Blakely and that his prior appellate counsel was ineffective for failing to
    raise a Blakely claim below.
    
            The Ohio Supreme Court granted the motion for a delayed appeal, meaning that
    it would consider the appeal as if it were timely filed. But the Court eventually denied
    leave to appeal on the merits in August 2006. In addition, while Thompson’s direct
    appeal was pending, he filed a pro se postconviction petition in the state trial court. This
    petition was also dismissed, and Thompson did not appeal that ruling.
    
            Thompson then filed his habeas petition in the United States District Court for
    the Southern District of Ohio. The petition raised three claims, including the claims that
    the state trial court violated Thompson’s Sixth Amendment right to a jury trial (as
    explained in Blakely) by finding facts used to increase his sentence without submitting
    the matter to a jury, and that Thompson’s appellate counsel was ineffective for failing
    to raise this argument on his direct appeal. After briefing by the parties, the magistrate
    judge assigned to the case issued a Report and Recommendation that advised the district
    court to conditionally grant Thompson habeas relief unless the state of Ohio reinstated
    Thompson’s direct appeal within 60 days. The district court overruled both parties’
    objections to the Report and Recommendation and adopted its conclusions, thus
    conditionally granting habeas relief as recommended by the magistrate judge.
    Nos. 08-3743/3744      Thompson v. Warden, Belmont                                  Page 4
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           On appeal, the Warden contests the grant of habeas relief, arguing that
    Thompson’s appellate counsel was not ineffective. Thompson cross-appeals, arguing
    that the district court should have conditioned habeas relief on the State giving him a
    new sentencing hearing, rather than conditioning the grant on the State simply reinstating
    his direct appeal.
    
                                        II. ANALYSIS
    
    A.     Standard of review
    
           We review de novo a district court’s decision to grant or deny a petition for a writ
    of habeas corpus. Joseph v. Coyle, 
    469 F.3d 441
    , 449 (6th Cir. 2006). The provisions
    of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply in this
    case because Thompson filed his petition after AEDPA’s effective date. See Woodford
    v. Garceau , 
    538 U.S. 202
    , 210 (2003). Under AEDPA, a federal court may grant a writ
    of habeas corpus with respect to a “claim that was adjudicated on the merits in State
    court proceedings” only if the state court’s decision “was contrary to, or involved an
    unreasonable application of, clearly established federal law, as determined by the
    Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
    
           In the present case, however, neither of Thompson’s claims was “adjudicated on
    the merits” by the state courts. Both his Blakely claim and his ineffective-assistance-of-
    appellate-counsel claim were raised for the first time in his petition to the Ohio Supreme
    Court, which denied leave to appeal without comment. As a result, Thompson’s Blakely
    claim is procedurally defaulted. See Wagner v. Smith, 
    581 F.3d 410
    , 418 (6th Cir. 2009)
    (“For a claim to be reviewable at the federal level, each claim must be fairly presented
    at every stage of the state appellate process.”). We thus cannot reach the merits of
    Thompson’s Blakely claim unless he first prevails on his ineffective-assistance-of-
    appellate-counsel claim, which would then establish cause and prejudice for the default.
    See Beuke v. Houk, 
    537 F.3d 618
    , 631 (6th Cir. 2008) (explaining that an ineffective-
    assistance-of-counsel claim can provide both cause and prejudice to excuse procedural
    default, if the ineffective-assistance claim itself was not defaulted).
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           Despite the fact that Thompson’s ineffective-assistance-of-appellate-counsel
    claim was raised only before the Ohio Supreme Court, the Warden acknowledges that
    this claim is not defaulted. An Ohio procedural rule allows parties to raise ineffective-
    assistance-of-appellate-counsel claims for the first time via a motion for leave to appeal
    to the Ohio Supreme Court, and thus a claim raised in that manner may be “fairly
    presented” for federal habeas purposes. See Holloman v. Timmerman-Cooper, No. 2:08-
    CV-441, 
    2009 WL 4283099
    , at *8 (S.D. Ohio Nov. 30, 2009) (holding that an
    ineffective-assistance-of-appellate-counsel claim raised on direct appeal to the Ohio
    Supreme Court was not procedurally defaulted) (citing State v. Murnahan, 
    584 N.E.2d 1204
     (Ohio 1992)). Furthermore, because Thompson’s ineffective-assistance-of-
    appellate-counsel claim was fairly presented to the Ohio Supreme Court but not
    addressed by it, we will review the claim de novo. See Howard v. Bouchard, 
    405 F.3d 459
    , 467 (6th Cir. 2005) (“Where the state court has not addressed or resolved claims
    [that are] based on federal law, most courts, including this one, have held that the
    decision is not an ‘adjudication on the merits.’ Thus, a federal habeas court reviews such
    unaddressed claims de novo.”).
    
    B.     Thompson’s ineffective-assistance-of-appellate-counsel claim
    
           1. The requirements of Strickland
    
           Strickland v. Washington, 
    466 U.S. 668
     (1984), requires that a defendant raising
    an ineffective-assistance claim show both that counsel performed deficiently and that the
    defendant was prejudiced by counsel’s deficient performance. Id. at 687-91. In order
    to demonstrate deficient performance, Thompson must show that his appellate counsel
    made an objectively unreasonable decision to raise other issues instead of raising a
    Blakely claim, “meaning that [the Blakely claim] ‘was clearly stronger than issues that
    counsel did present.’” See Webb v. Mitchell, 
    586 F.3d 383
    , 399 (6th Cir. 2009) (quoting
    Smith v. Robbins, 
    528 U.S. 259
    , 285, 288 (2000)).
    
           Thompson must also show prejudice, which in the appellate context means
    showing “a reasonable probability that, but for his counsel’s unreasonable failure to”
    Nos. 08-3743/3744      Thompson v. Warden, Belmont                                 Page 6
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    raise a Blakely claim on appeal, “he would have prevailed.” See Robbins, 528 U.S. at
    285. Furthermore, when reviewing the actions of appellate counsel, “[a] fair assessment
    of attorney performance requires that every effort be made to eliminate the distorting
    effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
    and to evaluate the conduct from counsel’s perspective at the time.” Smith v. Murray,
    
    477 U.S. 527
    , 536 (1986) (quoting Strickland, 466 U.S. at 689).
    
           2. The performance of Thompson’s appellate counsel
    
           Thompson argues, and the district court agreed, that his appellate counsel
    performed deficiently by not raising a Blakely claim in Thompson’s appeal to the Ohio
    Court of Appeals. In reaching this decision, the district court largely relied on the
    magistrate judge’s Report and Recommendation, which contained a fresh review of the
    factfinding done by the state trial court at Thompson’s sentencing, and concluded that
    this factfinding plainly violated the rule laid out in Blakely. Thompson’s appellate
    counsel was thus found to be deficient for failing to raise this claim.
    
           But this analysis fails to consider the context of Thompson’s appeal. Blakely
    extended the holding of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), to the sentencing-
    guideline scheme used by the state of Washington. Apprendi had held that, “[o]ther than
    the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
    prescribed statutory maximum must be submitted to a jury, and proved beyond a
    reasonable doubt.” Apprendi, 530 U.S. at 490. Blakely explained “that the ‘statutory
    maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
    on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
    Blakely, 542 U.S. at 303 (emphasis in original).
    
           The district court concluded that Ohio’s then-applicable sentencing procedures
    violated Blakely by requiring the state trial court to make at least one of four factual
    findings considered to be aggravating factors before giving a defendant like Thompson
    a sentence greater than the statutory minimum. Although judge-made factual findings
    that simply increase a statutory minimum sentence would not normally violate Blakely,
    Nos. 08-3743/3744      Thompson v. Warden, Belmont                                 Page 7
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    see Arias v. Hudson, 
    589 F.3d 315
    , 317 (6th Cir. 2009), then-applicable Ohio law
    declared that the statutory minimum was the appropriate sentence in the absence of any
    aggravating factors, see State v. Edmonson, 
    715 N.E.2d 131
    , 133 (Ohio 1999).
    
           The vast majority of Ohio state courts to address the issue of whether Ohio’s
    sentencing procedures ran afoul of Blakely at the time Thompson filed his direct appeal
    had reached the opposite conclusion from that of the district court. When Thompson
    filed his briefs for his two appeals on July 7, 2005, 8 of the 12 districts comprising the
    Ohio Court of Appeals had issued decisions holding Blakely inapplicable to Ohio’s
    sentencing laws. See State v. Trubee, No. 9-03-65, 
    2005 WL 335833
    , at *4-*9 (Ohio Ct.
    App. 3d Dist. Feb. 14, 2005) (rejecting a defendant’s Blakely challenge to Ohio’s
    sentencing laws); State v. Wheeler, No. 04CA1, 
    2004 WL 2827714
    , at *3-*4 (Ohio Ct.
    App. 4th Dist. Nov. 26, 2004) (same); State v. Iddings, No. 2004CAA06043, 
    2004 WL 3563921
    , at *1-*4 (Ohio Ct. App. 5th Dist. Nov. 8, 2004) (same); State v. Goins, No. 02
    CA 68, 
    2005 WL 704865
    , at *17-*19 (Ohio Ct. App. 7th Dist. Mar. 21, 2005) (same);
    State v. Cooper, No. 84645, 
    2005 WL 1541000
    , at *1-*3 (Ohio Ct. App. 8th Dist. June
    30, 2005) (same); State v. Rowles, No. 22007, 
    2005 WL 19440
    , at *3-*6 (Ohio Ct. App.
    9th Dist. Jan. 5, 2005) (same); State v. Reen, No. 2003-A-0077, 
    2005 WL 1009826
    , at
    *1-*3 (Ohio Ct. App. 11th Dist. Apr. 29, 2005) (same); State v. Farley, No. CA2004-04-
    085, 
    2005 WL 1131745
    , at *4-*5 (Ohio Ct. App. 12th Dist. May 16, 2005) (same).
    
           Two more appellate districts issued decisions reaching the same conclusion while
    Thompson’s appeal was being briefed. See State v. Weese, No. H-05-003, 
    2005 WL 1845256
    , at *1-*2 (Ohio Ct. App. 6th Dist. Aug. 5, 2005) (rejecting a Blakely challenge
    to Ohio’s sentencing laws); State v. Sanchez, No. 04AP-1320, 
    2005 WL 1745315
    , at *2-
    *3 (Ohio Ct. App. 10th Dist. July 26, 2005) (same). Only one district had held that
    Blakely was applicable to Ohio’s sentencing laws, State v. Montgomery, 
    825 N.E.2d 250
    ,
    252-55 (Ohio Ct. App. 1st Dist. 2005), and even there a different panel within that same
    district had previously reached the opposite conclusion, State v. Bell, No. C-030726,
    
    2004 WL 1531904
    , at *5 (Ohio Ct. App. 1st Dist. July 9, 2004) (holding Blakely
    inapplicable to Ohio’s sentencing procedures).
    Nos. 08-3743/3744       Thompson v. Warden, Belmont                                  Page 8
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            Perhaps more importantly, the division before which Thompson’s appeal was
    pending—the Ohio Court of Appeals’ Seventh District—had rejected the argument at
    least twice before. See Goins, 
    2005 WL 704865
    , at *17-*19 (reasoning that the Ohio
    sentencing statutes do not run afoul of Blakely), and State v. Barnette, No. 02 CA 65,
    
    2004 WL 3090228
    , at *15-*16 (Ohio Ct. App. 7th Dist. Dec. 28, 2004) (same). Thus,
    during the entire time that Thompson’s appeal was pending, a Blakely claim had virtually
    no chance of success in the Ohio Court of Appeals’ Seventh District.
    
            The claims that Thompson’s appellate counsel did raise—that the trial court erred
    by (1) allowing a state’s witness to make unsolicited comments to the jury,
    (2) conducting an inadequate voir dire, (3) sentencing Thompson to the maximum
    available sentences, (4) permitting the state to wrongly imply that Thompson had a prior
    criminal record, and (5) permitting the state to improperly shift the burden of proof to
    Thompson in closing argument—seem reasonably worthwhile in contrast.                   This
    demonstrates that Thompson’s appellate counsel did not perform deficiently by failing
    to raise a Blakely claim that was virtually certain to be rejected. See Webb, 586 F.3d at
    399 (explaining that appellate counsel is deficient only if the unraised claim is “clearly
    stronger” than the claims that were raised); see also United States v. Fields, 
    565 F.3d 290
    , 294 (5th Cir. 2009) (“[W]e have held that counsel is not ineffective for failing to
    raise a claim that courts in the controlling jurisdiction have repeatedly rejected.”).
    
            The fact that the Seventh District would almost certainly have rejected a Blakely
    claim in 2005 distinguishes this case from this court’s recent unpublished decision in
    Benning v. Warden, Lebanon Correctional Institution, No. 08-3260, 
    2009 WL 2868822
    (6th Cir. Sept. 8, 2009). Benning found that the petitioner’s appellate counsel was
    ineffective for not raising a Blakely claim in his brief to the Ohio Court of Appeals’ First
    District, filed three months after Thompson’s direct-appeal briefs were filed in this case.
    Id. at *7-*8. The First District, however, was the lone court out of Ohio’s 12 districts
    that had granted relief on a Blakely claim at the time. Id. at *7. Furthermore, Benning’s
    appellate counsel raised only one relatively weak argument contesting the sufficiency
    of the evidence in the case, id. (referring to a sufficiency-of-the-evidence argument as
    Nos. 08-3743/3744      Thompson v. Warden, Belmont                                  Page 9
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    a “perennial loser”), which again contrasts with this case where appellate counsel raised
    several plausible arguments.
    
           In fact, Benning’s other holding—rejecting Benning’s ineffective-assistance-of-
    trial-counsel claim—supports our conclusion in this case. Benning had argued that his
    trial counsel was also ineffective for failing to make a Blakely objection during his
    sentencing hearing. Id. at *6-*7. But at the time of Benning’s sentencing hearing, the
    earlier First District decision rejecting a Blakely challenge was still good law, so any
    Blakely objection that trial counsel might have made would have been futile. See id.
    Accordingly, Benning held that “[a]lthough prudent counsel would have preserved a
    Blakely claim under these circumstances, counsel’s failure to anticipate that [the Ohio
    Supreme Court] would overrule binding First District precedent was not constitutionally
    unreasonable.” Id. at *7. The analysis in Benning thus mirrors our own.
    
           Turning back to the present case, there was no point in raising a Blakely claim
    in the Seventh District except to preserve it for further appeal in the hope that the
    controlling law would change. And Thompson has been unable to cite any precedent
    holding that appellate counsel should be deemed ineffective for failing to raise a claim
    that he or she knows will be found without merit solely to preserve it for a later appeal.
    
           We are aware, of course, of the fact that the Ohio Supreme Court concluded that
    Blakely invalidated portions of Ohio’s sentencing laws the year after Thompson’s appeal
    was briefed and argued. See State v. Foster, 
    845 N.E.2d 470
     (Ohio 2006). But
    Strickland specifically warns of “the distorting effects of hindsight” when considering
    the strategic choices made by counsel. Strickland, 466 U.S. at 689.
    
            In sum, appellate counsel is not ineffective for failing to predict the development
    of the law. See Lott v. Coyle, 
    261 F.3d 594
    , 609 (6th Cir. 2001) (holding that a
    petitioner’s appellate counsel was not ineffective for failing to make a particular
    argument because “we cannot conclude that Lott’s counsel should have reasonably
    anticipated” the change in the law, even though there were conflicting opinions in the
    Ohio Court of Appeals on the issue); Alcorn v. Smith, 
    781 F.2d 58
    , 62 (6th Cir. 1986)
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    (noting that “nonegregious errors such as failure to perceive or anticipate a change in the
    law . . . generally cannot be considered ineffective assistance of counsel”); see also
    Green v. Johnson, 
    116 F.3d 1115
    , 1125 (5th Cir. 1997) (“[T]here is no general duty on
    the part of defense counsel to anticipate changes in the law.”); Spaziano v. Singletary,
    
    36 F.3d 1028
    , 1039 (11th Cir. 1994) (“We have held many times that reasonably
    effective representation cannot and does not include a requirement to make arguments
    based on predictions of how the law may develop.” (alterations, citations, and internal
    quotation marks omitted)).
    
            On the other hand, “counsel’s failure to raise an issue whose resolution is clearly
    foreshadowed by existing decisions might constitute ineffective assistance of counsel.”
    Lucas v. O’Dea, 
    179 F.3d 412
    , 420 (6th Cir. 1999) (noting that counsel will be found
    ineffective for failing to raise an argument that would have been unsuccessful at the time
    “only in a rare case,” and holding that counsel was not ineffective for failing to make a
    particular argument under Kentucky law where the law was “in a curious state” at the
    time). Given that the vast majority of precedent in Ohio had already determined that
    Blakely was not applicable to Ohio’s sentencing laws at the time Thompson’s appeal was
    decided, the Ohio Supreme Court’s later decision to the contrary was not “clearly
    foreshadowed.” If anything, the decision was an abrupt change from prior Ohio
    precedent. Thompson therefore cannot show that his counsel performed deficiently by
    failing to raise a Blakely claim, and he thus fails to satisfy the performance prong of
    Strickland. See Flannery v. Hudson, No. 1:06CV1938, 
    2008 WL 1787155
    , at *3-*4
    (N.D. Ohio Apr. 17, 2008) (rejecting an ineffective-assistance-of-appellate-counsel claim
    for failing to raise a Blakely claim in the Ohio Court of Appeals’ Fifth District during the
    same time period as Thompson’s direct appeal).
    
            3. Potential Prejudice
    
            Because Thompson fails to satisfy Strickland’s performance prong, we need not
    consider whether he was prejudiced by his appellate counsel’s failure to raise a Blakely
    claim. See Cornwell v. Bradshaw, 
    559 F.3d 398
    , 412 (6th Cir. 2009) (explaining that in
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    order to show the ineffective assistance of counsel, a petitioner “must show both
    deficient performance and prejudice”) (citing Strickland, 466 U.S. at 687).
    
    C.     Thompson’s cross-appeal
    
           On cross-appeal, Thompson asserts that the district court erred in conditionally
    granting habeas relief by ordering him released from imprisonment only if the State
    refuses to reinstate his direct appeal (as opposed to granting habeas relief only if the
    State refuses to completely resentence him). This issue is moot because Thompson has
    not prevailed on his ineffective-assistance-of-appellate-counsel claim.
    
                                    III. CONCLUSION
    
           For all of the reasons set forth above, we REVERSE the district court’s grant of
    habeas relief.