598 F.3d 281 (6th Cir. 2010), 08-3743, Thompson v. Warden

Docket Nº:08-3743, 08-3744.
Citation:598 F.3d 281
Opinion Judge:RONALD LEE GILMAN, Circuit Judge.
Party Name:Mark THOMPSON, Jr., Petitioner-Appellee/Cross-Appellant, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent-Appellant/Cross-Appellee.
Attorney: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. Thelma Thomas Price, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Stephen P. Hardwick, Office of t...
Judge Panel:Before BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.[*]
Case Date:March 18, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 281

598 F.3d 281 (6th Cir. 2010)

Mark THOMPSON, Jr., Petitioner-Appellee/Cross-Appellant,

v.

WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent-Appellant/Cross-Appellee.

Nos. 08-3743, 08-3744.

United States Court of Appeals, Sixth Circuit.

March 18, 2010

Argued: Jan. 14, 2010.

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[Copyrighted Material Omitted]

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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.

Before BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.[*]

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 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

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by imposing the statutory maximum sentence. He did not, however, argue that the Ohio 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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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.

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...

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