                                                                                         FILED
                       NOT RECOMMENDED FOR PUBLICATION                                Sep 28, 2010
                               File Name: 10a0627n.06                           LEONARD GREEN, Clerk
                                           No. 08-3683

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JASON FLANNERY,                                    )
                                                   )
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
STUART HUDSON, Warden,                             )   NORTHERN DISTRICT OF OHIO
                                                   )
       Respondent-Appellee.                        )
                                                   )
                                                   )



BEFORE:        MERRITT, ROGERS, and SUTTON, Circuit Judges.


       MERRITT, Circuit Judge. Jason Flannery appeals the district court’s denial of his petition

for a writ of habeas corpus. We granted a certificate of appealability as to two issues: (1) whether

the trial court violated the Sixth Amendment by imposing a sentence greater than the maximum

based on fact findings not inherent in the verdict or expressly found by the jury, and (2) whether

Flannery’s appellate counsel was ineffective for failing to raise this argument. This circuit has

answered these questions in the negative in a recent series of cases with facts and procedural

histories that are materially indistinguishable from the instant case. See Baker v. Voorhies, No.

09-3484, 2010 WL 3278228 (6th Cir. Aug. 20, 2010); Henley v. Brunsman, No. 08-3288, 2010 WL

2181804 (6th Cir. June 2, 2010); Carter v. Timmerman-Cooper, No. 08-3535, 2010 WL 2089536

(6th Cir. May 25, 2010); Thompson v. Warden, 598 F.3d 281 (6th Cir. 2010). Although one of us
No. 08-3683
Flannery v. Hudson

has questioned the wisdom of this result, Henley, 2010 WL 2181804, at *4 (Merritt, J., dissenting),

we are now constrained by the overwhelming weight of precedent. We, therefore, AFFIRM the

judgment of the district court.

        In January 2003, Flannery was convicted of multiple felonies in an Ohio state court. That

court sentenced him to twenty-eight years of imprisonment pursuant to an Ohio felony-sentencing

statute that required a shorter sentence unless the judge found certain facts. See Ohio Rev. Code §

2929.14(B)(2). Flannery filed a direct appeal to the Ohio Court of Appeals in November 2004. Five

months earlier, the U.S. Supreme Court held that a similar sentencing statute violated the Sixth

Amendment. Blakely v. Washington, 542 U.S. 296 (2004). But Flannery’s appellate counsel failed

to raise a Blakely argument in the Ohio Court of Appeals, which issued its opinion in April 2005.

Flannery did raise that argument in a petition for discretionary review to the Ohio Supreme Court,

but it declined to hear his case in August 2005. Several months later, after Flannery’s conviction

became final, the Ohio Supreme Court applied Blakely to invalidate the statute under which Flannery

was sentenced. State v. Foster, 845 N.E.2d 470 (2006). Flannery then petitioned for habeas relief.

        Flannery’s arguments are foreclosed by the precedent of this circuit. His Blakely claim is

procedurally defaulted because he did not raise it at the Ohio Court of Appeals. See Thompson, 598

F.3d at 285 (holding petitioner’s Blakely claim was procedurally defaulted when he raised it at Ohio

Supreme Court but not Ohio Court of Appeals). His claim that his appellate counsel was

constitutionally ineffective, if successful, would establish cause and prejudice to excuse this default.

Beuke v. Houk, 537 F.3d 618, 631 (6th Cir. 2008). But Flannery cannot show that his appellate

counsel’s performance was deficient for failing to raise the Blakely claim. At the time his direct

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No. 08-3683
Flannery v. Hudson

appeal was pending at the Ohio Court of Appeals, several districts of that court had recently held that

Blakely did not apply to Ohio’s sentencing scheme. See Thompson, 537 F.3d at 286–87 (collecting

cases). More importantly, the Fifth District — the very court in which Flannery’s appeal was

pending — had just rejected the same Blakely argument. State v. Iddings, No. 2004CAA06043,

2004 WL 3563921, at *1–4 (Ohio Ct. App. 5th Dist. Nov. 8, 2004). Because Flannery’s appellate

counsel could have reasonably concluded that the Blakely argument would be unsuccessful, he was

not constitutionally ineffective. See Baker, 2010 WL 3278228, at *3–6; Henley, 2010 WL 2181804,

at *2–3; Carter, 2010 WL 2089536, at *3. Thompson, 598 F.3d at 284-85. Flannery cannot use

ineffective assistance of counsel as cause to excuse his procedural default, nor can he prevail on it

as a freestanding claim for relief.

       The precedent of this circuit is clear. He defaulted his Blakely claim by failing to raise it to

the Ohio Court of Appeals, and he cannot show that his appellate counsel was ineffective because

the Ohio courts in which his case was pending clearly rejected the Blakely argument at the time. As

a result, we must affirm the judgment of the district court. We also deny the pending motion to

appoint counsel.




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