Thompson v. Warden

• Decision Date: 18 March 2010
• Docket Number: No. 08-3744.,No. 08-3743,08-3743,08-3744.
• Parties: Mark THOMPSON, Jr., Petitioner-Appellee/Cross-Appellant, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

598 F.3d 281

Mark THOMPSON, Jr., Petitioner-Appellee/Cross-Appellant, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent-Appellant/Cross-Appellee.

No. 08-3743

No. 08-3744.

United States Court of Appeals

Sixth Circuit.

Argued: Jan. 14, 2010.

Decided and Filed: March 18, 2010.

COPYRIGHT MATERIAL OMITTED

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 sen tences 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 erredby 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 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, 123 S.Ct. 1398, 155 L.Ed.2d 363 (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 in effectiveassistance-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-assistanceof-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).

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. Mumahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (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-assistanceof-appellate-counsel claim

1. The requirements of Strickland

Strickland v. Washington, 466 U.S. 668 104 S.Ct. 2052, 80 L.Ed.2d 674 (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. Bobbins, 528 U.S. 259, 285, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (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" raise a Blakely claim on appeal, "he would have prevailed." See Robbins, 528 U.S. at 285, 120 S.Ct. 746. Furthermore, when reviewing the actions...