Baker v. Voorhies, 082010 FED6, 09-3484

Docket Nº:09-3484
Opinion Judge:BOGGS, Circuit Judge.
Party Name:KOREY L. BAKER, Petitioner-Appellant, v. EDWIN C. VOORHIES, JR., Warden, Respondent-Appellee.
Judge Panel:Before: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.
Case Date:August 20, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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KOREY L. BAKER, Petitioner-Appellant,

v.

EDWIN C. VOORHIES, JR., Warden, Respondent-Appellee.

No. 09-3484

United States Court of Appeals, Sixth Circuit

August 20, 2010

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

On Appeal from the United States District Court for the Southern District of Ohio

Before: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.[*]

BOGGS, Circuit Judge.

Korey Baker appeals the district court's order denying his petition for a writ of habeas corpus. His principal argument is that his state-court appellate counsel was constitutionally ineffective for failing to challenge his sentence under Blakely v. Washington, 542 U.S. 296 (2004). Some four months after Baker's conviction became final, in a sharp break with state appellate precedent, the Ohio Supreme Court held that Ohio's felony-sentencing statute did indeed violate Blakely. See State v. Foster, 845 N.E.2d 470, 484 (Ohio 2006). However, we have already held three times that an Ohio attorney was not ineffective for failing to anticipate the outcome in Foster. See Henley v. Brunsman, No. 08-3288, 2010 WL 2181804 (6th Cir. June 2, 2010); Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285-86 (6th Cir. 2010); Benning v. Warden, Lebanon Corr. Inst., 345 F.App'x 149, 157 (6th Cir. 2009). Because the facts of this case are not materially distinguishable, we affirm the district court's denial of habeas relief.

BACKGROUND

A. Baker's Trial and Sentencing

In September 2003, Baker shot and injured another individual in a confrontation. He was subsequently convicted in Ohio state court of two felonies – attempted murder, see Ohio Rev. Code §§2903.02, and felonious assault, see id. §2903.11, both with a firearm specification. At the time of his sentencing in February 2004, Ohio's then-controlling sentencing statute required the sentencing judge to impose the statutory minimum sentence for any felony conviction "unless one or more of the following applie[d]":

(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.

(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.

Id. §2929.14(B) (2002); see also Foster, 845 N.E.2d at 490.

The trial judge found on the record that the imposition of minimum sentences would demean the seriousness of Baker's conduct and would not adequately protect the public. Consequently, the judge imposed non-minimum sentences of nine years for the attempted murder conviction and six years for the felonious assault conviction, to run consecutively. With the addition of a mandatory three-year term for the firearm specifications, Baker's total sentence was eighteen years.

B. Baker's Direct Appeal

Baker filed a notice of appeal with the Court of Appeals of Ohio, Second Appellate District ("Second District") in March 2004. On June 24, 2004 – just over two weeks before Baker filed his appellate brief – the United States Supreme Court decided Blakely, which "appl[ied] the rule [the Court had previously] expressed in Apprendi v. New Jersey[ 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.'" 542 U.S. at 301 (quoting Apprendi, 530 U.S. 466, 490 (2000)) (internal citation omitted).

Baker, through counsel, filed his appellate brief on July 9, 2004. In it, Baker did not challenge his sentence under Blakely or Apprendi. Instead, he argued that his trial counsel had been ineffective in various respects unrelated to sentencing: namely, by (1) failing to request a jury instruction on the lesser included offense of aggravated assault, (2) calling a witness who undermined Baker's self-defense theory, and (3) not objecting to purported prosecutorial misconduct.

In January 2005, the Second District affirmed Baker's conviction and sentence, although it agreed that "evidence presented at trial could have supported an instruction for aggravated assault" and that the defense witness's testimony "was not helpful to [Baker], particularly [his] claim that [he] had acted in self defense." Baker did not file a timely appeal to the Ohio Supreme Court, but later filed a motion for delayed direct appeal, which was denied.

C. Baker's Application to Reopen

In February 2005, Baker, now acting pro se, filed an application to reopen his direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B). That rule provides that a criminal defendant, within ninety days of an unfavorable appellate decision, "may apply [to the appellate court where his appeal was decided] for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel." In his application, Baker argued that his appellate counsel had provided ineffective assistance by failing to challenge his sentence under Blakely.

The Second District denied Baker's application to reopen. In so doing, it apparently misconstrued Baker's claim that appellate counsel had been ineffective for failing to argue Blakely on appeal as a claim that appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to argue Blakely at the time of sentencing. Having thus misconstrued Baker's claim, the Second District concluded that trial counsel had not been not ineffective, and that appellate counsel had therefore not been ineffective for failing argue trial counsel's ineffectiveness. Baker appealed to the Ohio Supreme Court, which dismissed his appeal in July 2005 as "not having any substantial constitutional question."

D. Baker's Federal Habeas Petition

On February 10, 2006, Baker filed a timely petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. He argued that he was entitled to habeas relief because (1) the imposition of a greater-than-minimum term of imprisonment on the basis of a judicial determination that a minimum sentence would "demean the seriousness of [his] conduct" and "w[ould] not adequately protect the public" violated Blakely; and (2) his appellate counsel was constitutionally ineffective for failing to raise this argument before the Second District.1

The district court concluded that appellate counsel was not ineffective, since "at the time Baker's direct appeal was filed, . . . counsel had no reason to believe that a Blakely challenge would be successful in Ohio and good reason to believe that [it] would not be successful . . . ." Baker v. Voorhies, No. 3:06cv00045, slip op. at 6 (S.D. Ohio Mar. 12, 2009). The district court concluded that Baker's substantive Blakely claim was procedurally defaulted. Accordingly, it denied Baker's petition. Baker timely appealed.

STANDARD OF REVIEW

We review a district court's habeas ruling de novo. Souter v. Jones, 395 F.3d 577, 584 (6th Cir. 2005). Under the Antiterrorism and Effective Death Penalty Act, when a state court has adjudicated a claim on the merits, a federal court may grant the writ only if the state-court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). By contrast, when the state court has not addressed the merits of a claim, a federal court reviews that claim de novo. Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

DISCUSSION

A. Ineffective Assistance of Appellate Counsel

We begin by addressing Baker's assertion of ineffective assistance of appellate counsel, which, if meritorious, would serve both as a free-standing ground for habeas relief and as an excuse for any potential procedural default of Baker's Blakely claim. Because the Second District misconstrued Baker's application to reopen, Baker's ineffective-appellate-assistance claim has not been adjudicated by a state court. We therefore review it de novo. Maples, 340 F.3d at 436-37.

In a recent case involving a similar assertion of ineffective assistance for failure to raise a Blakely claim, we explained the controlling standard as follows:

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...

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