Lovins v. Parker

• Citation: 712 F.3d 283
• Decision Date: 28 March 2013
• Docket Number: No. 11–5545.,11–5545.
• Parties: Derry LOVINS, Petitioner–Appellant, v. Tony PARKER, Warden, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

712 F.3d 283

Derry LOVINS, Petitioner–Appellant,

v.Tony PARKER, Warden, Respondent–Appellee.

No. 11–5545.

United States Court of Appeals,

Sixth Circuit.

Argued: Nov. 27, 2012.

Decided and Filed: March 28, 2013.

ARGUED:Ryan T. Holt, Sherrard & Roe, PLC, Nashville, Tennessee, for Appellant. Brent C. Cherry, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF:Ryan T. Holt, Sherrard & Roe, PLC, Nashville, Tennessee, for Appellant.

Brent C. Cherry, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge. ^*

OPINION

JANE B. STRANCH, Circuit Judge.

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins's sentence from twenty to twenty-three years based on those findings. In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the three-year sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the sentence was enhanced based on facts that were not found by a jury. The history of Lovins's requests for relief in state court is byzantine, but the legal principles are not. Lovins's direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins's Blakely claim, we REVERSE the district court's denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only. We AFFIRM the district court's denial of relief on all of Lovins's other claims.

I. OVERVIEW

A. Factual background

The facts that led to Lovins's conviction are largely uncontested. On December 4, 2001, Lovins was driving a van with four passengers, and Geoffrey Burnett was driving a car with two passengers. In an encounter on a street in Dyersburg, Tennessee, Lovins used a .357 handgun to fire two shots at Burnett's car, killing Burnett. Lovins later turned himself in.

At trial, Lovins was represented by retained counsel Charles Agee, and he pursued a self-defense strategy. Lovins presented two witnesses who testified that Burnett had told them he was going to kill Lovins that day. One of those witnesses was Burnett's girlfriend. She testified that Burnett stated to her on the day of the murder that he was going to get a gun, and she understood him to mean he was going to get the gun “to take care of a problem” he was having with Lovins. State v. Lovins, No. W2003–00309–CCA–R3–CD, 2004 WL 224482, at *4–5 (Tenn.Crim.App. Feb. 4, 2004) (“ Lovins I ”).

Lovins called two additional witnesses who testified that Burnett was a dangerous individual who had been involved in shootings previously. Lovins attempted to procure testimony from one of these witnesses, Kim Floyd, to show Burnett had been involved in a shooting that resulted in the death of Floyd's two-year-old child. Though the trial court limited Floyd's direct testimony, the testimony presented contained sufficient information for the jury to infer what had happened. Floyd testified that her child had been killed “at the hands of a couple people that's involvedwith this case.” Later, the court allowed Lovins to testify that Floyd told him Burnett “was thought to have been involved in a homicide involving her family.”

The State presented testimony from a passenger in Burnett's vehicle; testimony from various police witnesses; forensic and autopsy results; and physical evidence recovered from the vehicles. A police investigator testified that he recovered three .357 bullets and a single brown work glove from Lovins's vehicle. An envelope containing the evidence was admitted without objection, but Lovins now alleges that the State did not properly disclose this evidence during pretrial discovery.

On August 22, 2002, the jury found Lovins guilty of second-degree murder.

B. Sentencing

In determining Lovins's sentence, the trial court applied a procedure that the Tennessee Supreme Court later acknowledged to be unconstitutional under Blakely. The judge followed the Tennessee sentencing rules then set forth in Tennessee's Criminal Sentencing Reform Act of 1989. SeeTenn.Code Ann. § 40–35–210 (2000).¹Section 40–35–210 instructed the court first to determine the appropriate range of the sentence, stating that “[t]he presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement or mitigating factors.” § 40–35–210(c). If a judge found enhancement factors, the sentence could be increased. § 40–35–210(d).

At this point, a short primer on Blakely is necessary to understand the parties' arguments. The relevant United States Supreme Court precedent begins with Apprendi v. New Jersey, which 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.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Four years later, in Blakely, the Court clarified that the definition of “ ‘statutory maximum’ for Apprendi purposes is not the high-end that a sentence may not exceed, but rather 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, 124 S.Ct. 2531. A year later, the Court clarified that the Apprendi/Blakely rule applies to the federal sentencing guidelines. United States v. Booker, 543 U.S. 220, 226–27, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

In its first encounter with Blakely, the Tennessee Supreme Court determined that the rule did not necessarily invalidate § 40–35–210. State v. Gomez, 163 S.W.3d 632, 661 (Tenn.2005) (“Gomez I ”). The defendants in Gomez I, however, filed a petition for certiorari to the United States Supreme Court. On January 27, 2007, the Court invalidated California's sentencing procedure, which was virtually identical to Tennessee's. Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). On February 20, the Supreme Court vacated Gomez I and remanded the case to the Tennessee Supreme Court for consideration in light of Cunningham.Gomez v. Tennessee, 549 U.S. 1190, 127 S.Ct. 1209, 167 L.Ed.2d 36 (2007). On remand, the Tennessee Supreme Court acknowledged that § 40–35–210 “violated the Sixth Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and Cunningham.” State v. Gomez, 239 S.W.3d 733, 740 (Tenn.2007) (“Gomez II ”).

At the time Lovins was sentenced, however, the Supreme Court had not yet decided Blakely. Pursuant to § 40–35–210, the judge determined that the range for Lovins would be fifteen to twenty-five years and therefore the presumptive sentence would be twenty years. He then, without the assistance of a jury, found the existence of four aggravating factors and the absence of any mitigating factors. He found that Lovins (1) had a history of criminal convictions or behavior, (2) had a history of unwillingness to comply with conditions of release, (3) possessed a firearm during the commission of his offense, and (4) showed no hesitation about committing a crime with a high risk to human life. Based on these findings, the judge increased Lovins's sentence from twenty to twenty-three years in prison. Lovins's counsel did not object to the sentencing methodology by, for example, alleging that it violated Apprendi.

C. Direct and postconviction review

Though Lovins was sentenced in 2002, direct review of his conviction and sentence did not ultimately become final until 2007—nearly three years after the Blakely decision. The procedural history was unusual, however, because Lovins's counsel at first failed to file an application for permission to appeal on direct review to the Tennessee Supreme Court. Then, only after Lovins had filed a pro se motion for postconviction relief, the Tennessee Court of Criminal Appeals determined that his counsel's failure constituted ineffective assistance and re-opened Lovins's direct review to allow the filing. As a result of this intertwined direct and postconviction review, the Tennessee Supreme Court did not finally deny relief on Lovins's direct appeal until March 5, 2007.

In Lovins's initial and unsuccessful direct appeal to the Court of Criminal Appeals, he presented only one argument: that the evidence was insufficient to support a conviction for second-degree murder. The Court of Criminal Appeals denied relief on this claim on February 4, 2004. When Lovins later filed his request for postconviction relief, however, he significantly expanded his allegations of error. He framed his request for state postconviction relief as a claim of ineffective assistance of trial and appellate counsel, arguing that his counsel had (1) failed to appeal the exclusion of Kim Floyd's testimony about Burnett's role in the death of her daughter, (2) failed to appeal the “length of the sentence and the application of enhancement factors,” and (3) failed to file the request for permission to appeal to the Tennessee Supreme Court, among other failures. The petition also noted that the prosecution had failed to disclose the physical evidence that was introduced at trial.

The trial court held a postconviction relief hearing and denied relief on all claims in a June 2, 2005 order that noted Lovins was alleging a “Blakely violation.” The trial court, however, found no constitutional violation “pursuant to the recent Tennessee Supreme Court...