Henley v. Brunsman, 060210 FED6, 08-3288

Docket Nº:08-3288
Opinion Judge:Julia Smith Gibbons, Circuit Judge.
Party Name:BRIAN D. HENLEY, Petitioner-Appellant, v. TIM BRUNSMAN, Warden Respondent-Appellee.
Judge Panel:Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges. MERRITT, Circuit Judge, dissenting.
Case Date:June 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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BRIAN D. HENLEY, Petitioner-Appellant,

v.

TIM BRUNSMAN, Warden Respondent-Appellee.

No. 08-3288

United States Court of Appeals, Sixth Circuit

June 2, 2010

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

Julia Smith Gibbons, Circuit Judge.

Petitioner-appellant Brian D. Henley appeals pro se the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Of the multiple grounds for relief claimed in the petition, only one is at issue in this appeal: Henley's claim that his appellate counsel was constitutionally ineffective for failing to argue that his trial counsel erred in not objecting to Henley's sentence as violating Blakely v. Washington, 542 U.S. 296 (2004). For the following reasons, we affirm the district court's decision.

I.

The underlying facts, as recounted in the Magistrate Judge's Report and Recommendation, are undisputed. Henley v. Moore, No. 07-cv-031, 2007 WL 4884107 (S.D. Ohio June 27, 2007). On September 28, 2004, Henley was convicted by a jury in Montgomery County, Ohio of one count of kidnapping, four counts of rape, two counts of felonious assault, and one count of attempted felonious assault. Id. at *2. On October 29, 2004, the state trial court sentenced him to a total prison term of twenty-two years and found him to be a sexual predator. Id. At the sentencing hearing, the court made findings on the record supporting greater than minimum sentences, consecutive sentences, and maximum sentences. Id.

On November 18, 2004, Henley timely sought review by the Second District Court of Appeals, Montgomery County, Ohio challenging the trial court's evidentiary rulings, sexual predator designation, and the sufficiency of the evidence supporting his convictions. He also argued that his sentence violated Blakely. On November 18, 2005, the state appellate court affirmed Henley's convictions. State v. Henley, No. 20789, 2005 Ohio App. LEXIS 5531 (Ohio Ct. App. Nov. 18, 2005). That court refused to consider the Blakely claim because Henley had not raised it at his sentencing. Id. at **22 (citing State v. Austin, No. 20445, 2005 Ohio App. LEXIS 1043 (Ohio Ct. App. Mar. 11, 2005)). On December 7, 2005, Henley pro se appealed to the Ohio Supreme Court and on March 8, 2006, that court declined to hear the case. State v. Henley, 846 N.E.2d 536 (Ohio 2006). Henley unsuccessfully sought a writ of certiorari from the United States Supreme Court. Henley v. Ohio, 549 U.S. 912 (2006). On January 31, 2006, he moved to reopen his appeal in the Ohio Court of Appeals based on the ineffectiveness of his appellate counsel in failing to raise trial counsel's ineffectiveness at sentencing. On April 10, 2006, that court found that Henley's appellate counsel was not ineffective and denied his motion. On July 5, 2006, the Ohio Supreme Court dismissed Henley's subsequent appeal from that decision. See State v. Henley, 850 N.E.2d 73 (Ohio 2006). Henley was also unsuccessful in pursuing an ineffective assistance of trial counsel claim through a...

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