                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0322n.06

                                        Case Nos. 15-6025

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                            Jun 09, 2017
BENJI MANNS,                                         )
                                                                        DEBORAH S. HUNT, Clerk
                                                     )
       Petitioner-Appellant,                         )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE EASTERN DISTRICT OF
GARY BECKSTROM, Warden,                              )       KENTUCKY
                                                     )
       Respondent-Appellee.                          )
                                                     )
                                                     )

       BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

       PER CURIAM. A Kentucky jury convicted Benji Manns of three counts of first degree

trafficking in hydromorphone, oxycodone, and morphine. It also found him to be a persistent

felony offender, which led to a total sentence of 60 years’ imprisonment.            The Kentucky

Supreme Court affirmed on direct appeal and later denied review when Manns collaterally

attacked his conviction in state court. Manns then filed a federal habeas petition. The district

court denied it, and we granted a certificate of appealability on his ineffective assistance of trial

and appellate counsel claims. We now affirm because Manns’ claims cannot succeed on the

merits, even if we excused his procedural default.
Case No. 15-6025, Manns v. Beckstrom


                                                I.

       In February 2005, an undercover detective sat in a car with Manns and gave him $40 for

drugs. Manns went into a house and returned with pills in hand—two pills were oxycodone ($15

each), and the rest, he said, were morphine (worth $10). The morphine turned out to be

hydromorphone. But later in February, Manns did in fact sell morphine to a detective. In June, a

grand jury indicted him, and a petit jury later convicted him, of three counts of first-degree drug

trafficking for hydromorphone, oxycodone, and morphine. Of import to his sentence, the jury

also convicted him of being a first-degree persistent felony offender. The judge imposed the

minimum penalty: twenty years on each count, to run consecutively.

       On direct appeal, Manns raised five issues but did not argue that the court should overrule

Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), which required the trial judge to impose

consecutive sentences. The Kentucky Supreme Court overruled Devore seventeen days after

Manns filed his reply brief. Peyton v. Commonwealth, 253 S.W.3d 504, 510–11 (Ky. 2008). But

it nonetheless affirmed Manns’ conviction and sentence three months later.              Manns v.

Commonwealth, No. 2006-SC-929-TG, 2008 WL 3890350 (Ky. Aug. 21, 2008). Manns cited

Peyton and challenged the application of Devore to his sentence for the first time in his petition

for rehearing, which the Kentucky Supreme Court denied.

       On collateral review in state court, Manns raised numerous issues. But he did not argue

that his trial counsel was ineffective for failing to challenge the indictment under Kentucky’s

double jeopardy clause, and he did not argue that appellate counsel was ineffective for failing to

raise a challenge to Devore prior to the petition for rehearing. The Kentucky trial court denied

his petition. The Kentucky Court of Appeals affirmed. And the Kentucky Supreme Court

denied review.



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Case No. 15-6025, Manns v. Beckstrom


          Manns filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied it.

We then granted a certificate of appealability on two issues: (1) whether trial counsel was

constitutionally ineffective for failing to raise a double jeopardy challenge to the indictment; and

(2) whether appellate counsel was constitutionally ineffective for failing to challenge Devore in

the initial briefing to the Kentucky Supreme Court.

                                                  II.

          All agree that Manns failed to raise both ineffective-assistance claims in the state courts

on collateral review.     Manns argues that we should excuse both procedural defaults under

Martinez v. Ryan, 566 U.S. 1, 13–15 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 1921

(2013), and our decision in Woolbright v. Crews, 791 F.3d 628, 636 (6th Cir. 2015). But we

need not wade in to those possibilities because neither claim can succeed on the merits.

          Ineffective assistance of trial counsel. Counsel was constitutionally ineffective only if

the representation fell below an objective standard of reasonableness and the defendant was

prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88

(1984).      Manns’ claim fails because he was not prejudiced by his counsel’s allegedly

unreasonable failure to raise a double jeopardy challenge to the indictment.

          Manns does not argue that his indictment violated the federal double jeopardy test, under

which each statutory crime must have an element the other does not for the government to charge

separate offenses. See Blockburger v. United States, 284 U.S. 299, 304 (1932). And he indeed

could not succeed on such a claim. See United States v. Pope, 561 F.2d 663, 669 (6th Cir. 1977)

(upholding multiple counts arising from single sale of multiple substances).

          He instead bases his claim on the Kentucky constitution’s double jeopardy clause. When

state law offers criminal defendants more extensive protections than federal law, counsel’s



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Case No. 15-6025, Manns v. Beckstrom


failure to bring a cognizable claim under state law can violate the federal right to effective

assistance of counsel. Goff v. Bagley, 601 F.3d 445, 464 (6th Cir. 2010). But Kentucky’s double

jeopardy protections were no broader than the federal constitution’s when Manns was convicted.

Manns claims that the Kentucky Supreme Court’s decision in Commonwealth v. Grubb,

862 S.W.2d 883, 884 (Ky. 1993), was good law at the time of his trial, that it precluded multiple

charges when two separate substances of the same schedule were sold in a single transaction, and

that his trial lawyer was ineffective for failing to raise that objection. As in Manns’ case, the

prosecution in Grubb charged multiple counts based on a single sale involving more than one

Schedule II narcotics. The Kentucky Supreme Court invalidated the multiple convictions on

double jeopardy grounds. But that decision arose during a short-lived expansion of Kentucky

double jeopardy doctrine that began with Ingram v. Commonwealth, 801 S.W.2d 321 (Ky. 1990),

and ended with Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996). During that period, a

defendant could not be punished more than once for “a single impulse and a single act, having no

compound consequences.” Ingram, 801 S.W.2d at 324.

       By the time of Manns’ trial, however, the Kentucky Supreme Court had already

overruled Ingram’s “single impulse” test and “declare[d] that double jeopardy issues arising out

of multiple prosecutions henceforth will be analyzed in accordance with the [traditional]

principles set forth in Blockburger”—a test under which Manns does not claim he could prevail.

Burge, 947 S.W.2d at 811. It is true that Burge declined to expressly overrule Grubb because, it

said then, Grubb’s result could be reached under Blockburger too.               But Kentucky’s

straightforward application of Blockburger was already the law of the State. And the Kentucky

Supreme Court later clarified that Grubb indeed “primarily relied on the ‘single impulse’ test

established in Ingram v. Commonwealth, which was later overruled.” Early v. Commonwealth,



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Case No. 15-6025, Manns v. Beckstrom


470 S.W.3d 729, 739 (Ky. 2015). That holding demonstrates that, even if Manns’ counsel was

deficient, he was not prejudiced by the absence of a state-law double jeopardy objection.

       Ineffective assistance of appellate counsel. Manns’ ineffective appellate counsel claim

suffers a similar flaw. Even if we assume for the sake of argument that Martinez and Trevino

extend to appellate counsel claims, see Davila v. Davis, 137 S. Ct. 810 (2017) (mem.) (granting

cert), and even if we assume that his procedural default could be excused under that standard,

Manns cannot establish deficient performance under Strickland.

       Manns claims that his appellate counsel on direct appeal was constitutionally ineffective

for failing to challenge Devore’s consecutive-sentence requirement in the Kentucky Supreme

Court. But under Strickland’s “highly deferential” standard, his appellate counsel’s decision to

decline to ask a state supreme court to overrule itself was not “outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690. There was little indication

that other Kentucky courts had questioned Devore’s soundness prior to its overruling in Peyton.

In fact, Kentucky courts consistently reaffirmed the Devore principle in the intervening twenty-

four years. See, e.g., Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004); Meade v.

Commonwealth, No. 2006-CA-20-MR, 2006 WL 2848050, at *2 (Ky. Ct. App. Oct. 6, 2006);

Rowan v. Commonwealth, No. 2003-CA-690-MR, 2004 WL 1857152, at *1 (Ky. Ct. App. Aug.

20, 2004). There were clear strategic reasons to avoid wasting time or valuable briefing space on

what was likely to be a losing issue. And Manns’ counsel raised the point immediately after the

Kentucky Supreme Court changed its mind. Because his counsel’s representation did not fall

below an “objective standard of reasonableness,” Manns’ Sixth (and Fourteenth) Amendment

rights remained intact. Strickland, 466 U.S. at 688.

       For these reasons, we affirm.



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Case No. 15-6025, Manns v. Beckstrom


       HELENE N. WHITE, Circuit Judge, dissenting. I respectfully dissent.

       Like the district court, the majority rejects Manns’s ineffective assistance of trial counsel

claim on the ground that Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993), was no longer

good law when Manns went to trial. This conclusion is based on the syllogism that Grubb was

based on the single-impulse test adopted in Ingram v. Commonwealth, 801 S.W.2d 321

(Ky. 1990); the Ingram test was abandoned for the Blockburger1 test in Commonwealth v. Burge,

947 S.W.2d 805 (Ky. 1996); charging multiple offenses does not violate Blockburger; therefore,

the multiple charges did not violate Kentucky law and counsel was not ineffective for failing to

challenge the indictment or multiple convictions.          I have no quarrel with the logic of the

majority’s position. The problem is that the Kentucky Supreme Court has never followed this

path, and has adhered to Grubb.

Ineffective Assistance of Trial Counsel (IATC)

       After Grubb sold undercover police officers ten Percodan and two Dilaudid pills, both

Schedule II narcotics, in a single transaction, officers returned to Grubb’s residence with a search

warrant and recovered additional drugs. Grubb was convicted on four drug-trafficking counts.

862 S.W.2d at 884. The Kentucky Court of Appeals reversed the convictions on the two counts

that arose from the transactions already covered by other counts. The Kentucky Supreme Court

granted discretionary review and affirmed:

              The Court of Appeals reversed the conviction of Counts 3 and 5 and held
       the double jeopardy clause of the Kentucky Constitution forbids conviction of
       more than one offense when all the drugs involved are contained (listed) within
       the same statutory schedule of controlled substances. The issue articulated by the
       Court of Appeals is whether multiple sentences for drug trafficking may be
       imposed under the “compound consequences” prong of the Ingram test (arising
       from Ingram v. Commonwealth, Ky., 801 S.W.2d 321 [1990]), when the


       1
           Blockburger v. United States, 284 U.S. 299 (1932).

                                                    6
Case No. 15-6025, Manns v. Beckstrom


       defendant has trafficked in different named substances but which are criminalized
       in the same schedule (statute).

               KRS 218A.060 and 218A.070 place[] the substances Percodan and
       Dilaudid in Schedule II . . . . The language of the statutes reflects that the
       legislature did not create a separate crime with respect to each forbidden
       substance contained in the same schedule. Certainly a punishment must be fixed
       clearly and without ambiguity and any doubt will be resolved against turning a
       single transaction into multiple offenses. Bell v. United States, 349 U.S. 81
       (1955).
       ....
               A single sales transaction between the same principals at the same time
       and place which violates a single statutory provision does not justify conviction or
       a sentence for separate crimes, even though more than one item of a controlled
       substance (of the same schedule) is involved.

               Said otherwise, the simultaneous unlawful possession (sale) of the same
       scheduled narcotic drugs giving rise to separate offenses results in fractionalizing
       the statute. We would soon arrive at the threshold of declaring that a single
       criminal transaction could be broken into multiple offenses based upon the total
       number of pills that were recovered, a manifestly absurd result.
       ....
       [] Ingram . . . made clear that [this court] has adopted a broader view of double
       jeopardy [than the Commonwealth advocates]. Resultantly, Section 13 of the
       Kentucky Constitution would permit the Commonwealth to carve out of a single
       episode the most serious offense, but not to punish a single episode as a multiple
       offense. In effect that case, as this one, presents a single impulse act having no
       compound consequences. We have determined that it may be justifiable . . . to
       impose separate punishments for the possession of different classes (schedules) of
       drugs on the ground that different items clearly present different threats to society.

862 S.W.2d at 884–85.

       In the instant case, the district court determined that because Ingram had been overruled,

Grubb no longer stood on solid footing:

       Grubb did stand for the proposition, under Kentucky law, at least, that (as to the
       statutory version in effect at the time of Grubb) one instance of trafficking in
       various substances under the same schedule should not support multiple charges.
       See id. at 884–85. Manns faced separate charges, in Counts 1 and 2, for
       trafficking different controlled substances (but within the same schedule) on one
       factual occasion. However, [Grubb] rested on Ingram v. Commonwealth,
       801 S.W.2d 321, 324–25 (Ky. 1990). Kentucky overruled Ingram later that
       decade in Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996). []
       Kentucky, for double jeopardy analysis, dropped its single instance analysis in

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Case No. 15-6025, Manns v. Beckstrom


       cases like Ingram and embraced the federal Blockburger analysis set forth in
       Burge. [Hatcher v. Commonwealth, 310 S.W.2d 691, 697 (Ky. Ct. App. 2010)]
       (“The Kentucky Supreme Court has overruled Ingram and adopted the ‘distinct
       element’ test of Blockburger v. United States, 52 S. Ct. 180 (1932).”). Grubb
       undoubtedly centered on Ingram. See Grubb, 862 S.W.2d at 887 (Wintersheimer,
       J., dissenting) (“The majority chooses to base its decision on the double jeopardy
       analysis provided by Ingram []”). Manns’s argument treats Grubb as definitive,
       but by the time of his trial (and his RCr 11.42), Grubb no longer stood on solid
       footing. This being the only argument presented, Manns fails to raise a Strickland
       issue of substantial merit. Fair-minded jurists would not reasonably debate the
       merit of an argument, eschewed by counsel, premised on a case of doubtful
       continuing vitality.

PID 504–05 (Mag. J. Recommended Disposition, adopted by Dist. Ct.).

       The problem with the district court’s and the majority’s reasoning is that not only has the

Kentucky Supreme Court never abandoned Grubb, it has approved it in the years since Ingram.

In Burge, which overruled Ingram’s single-impulse rule and adopted the Blockburger test, the

Kentucky Supreme Court observed that Grubb would have satisfied the Blockburger test:

       In [Grubb], we cited Ingram in holding that a defendant could not be convicted of
       selling multiple items of different controlled substances of the same schedule.
       The same result could have been reached by application of the Blockburger “same
       elements” test, since the sales all violated the same statute.

Burge, 947 S.W.2d at 810. Then, in 2011, fifteen years after Burge was decided, the Kentucky

Supreme Court cited Grubb in Jones v. Commonwealth, 331 S.W.3d 249, 251 n.1 (Ky. 2011),

explaining why Jones was charged with only one count for delivering two listed substances at the

same time. The Court explained: “The alprazolam and clonazepam purchased during the second

buy constituted only one transaction because they are both Schedule IV narcotics.             See

Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993).” Further, Kentucky’s Criminal Practice

and Procedure Series continues to cite Grubb and repeat the proposition that “multiple sentences

for a single drug transaction of drug trafficking may not be imposed when the defendant has




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Case No. 15-6025, Manns v. Beckstrom


trafficked in different named substances which are criminalized in the same schedule.” 2 Thus, I

cannot agree that Grubb was no longer the law in Kentucky when Manns was tried.

       Manns’s claim that trial counsel was deficient in failing to challenge the indictment is

meritorious. As for prejudice, counsel’s failure to object to the duplicative count resulted in

Manns being convicted of a third count and being sentenced to an additional and consecutive

twenty years; thus counsel’s performance prejudiced the trial’s outcome.

Ineffective Assistance of Appellate Counsel (IAAC)

       Decided in 1984, Devore, 662 S.W.2d 829 (Ky. 1984), held that Ky. Rev. Stat. Ann.

§ 533.060(2) required that sentences for felonies committed while on parole run consecutively to

each other, in addition to the sentence for the paroled offense. Devore remained the law until it

was overruled in Peyton v. Commonwealth, 253 S.W.2d 504 (Ky. 2008), which held that the

newly imposed sentences must run consecutively to a paroled offense, but the sentencing court

has discretion to run the new sentences either concurrently or consecutively to each other.

253 S.W.2d at 511–12. Peyton became final while Manns’s appeal was pending before the

Kentucky Supreme Court.

       Appellate counsel first challenged Devore in a petition for rehearing and/or extension

filed after the Kentucky Supreme Court affirmed Manns’s convictions.             Appellate counsel

argued the court should reverse and remand for a new trial, or remand for resentencing in

accordance with Peyton, or allow the parties to brief and/or hear argument on the issues

presented in the petition for rehearing. PID 52. The Kentucky Supreme Court denied Manns’s



       2
          8 Kentucky Practice Series, Criminal Practice and Procedure § c14.16 n.3 (5th ed.) (updated
Nov. 2016) (citing both Burge and Grubb). Kentucky secondary sources recognize that Grubb is not one
of the seven cases overruled in Burge. See Trial Handbook for Kentucky Lawyers § 10:1 n. 23-31 (2016-
2017 ed.).

                                                 9
Case No. 15-6025, Manns v. Beckstrom


petition for rehearing without comment: “The Petition for Rehearing filed by the Appellant,

Benji Manns, is DENIED.” PID 53.

                                                A.

        Manns’s habeas petition argued that appellate counsel was ineffective for failing to argue

that Devore incorrectly interpreted Ky. Rev. Stat. § 533.060(2) in initial briefing on direct appeal

to the Kentucky Supreme Court. On appeal, Manns asserts that although Peyton had not been

decided when Manns was sentenced, given trial counsel’s vigorous argument that the court had

discretion to impose a concurrent sentence, appellate counsel should have argued that Devore

was wrongly decided. Manns notes that the trial court invited an appeal of that issue when it

stated, “Mr. Manns certainly has the right to appeal that decision and maybe make new law but

based on the law we have now [Devore] is the reason for my decision.”

        Further, Manns asserts that appellate counsel submitted her reply brief on May 5, 2008,

just seventeen days before Peyton was decided, and that appellate counsel therefore did not need

to wait until a petition for rehearing to request that Peyton be applied because she could have

asked to supplement her reply brief with additional law after Peyton was decided. See Appellant

Br. at 15.

                                                B.

        The majority concludes that appellate counsel was not ineffective for failing to challenge

Devore’s consecutive sentencing requirement because there was no reason to believe that the

Kentucky Supreme Court would overrule itself after twenty-four years, and counsel raised the

issue immediately after the Supreme Court changed its mind. As to the second point, the

Supreme Court decided Peyton on May 22, 2008, and that decision became final on June 12,

2008. The Kentucky Supreme Court denied Manns’s appeal on August 21, 2008, and counsel



                                                10
Case No. 15-6025, Manns v. Beckstrom


filed the motion for rehearing on September 10, 2008. Thus counsel had over two months to

seek leave to file a supplemental brief calling the court’s attention to Peyton and to trial

counsel’s repeated objections to the consecutive sentences. This was a crucial omission given

that the Kentucky Supreme Court will not consider an error raised for the first time in a petition

for rehearing:

       That unraised issues are treated as waived is also why a petition for rehearing
       would have likely been insufficient in this case, even though that is the ordinary
       route for a party to challenge a portion of one of this Court’s opinions. The
       rehearing rule itself specifically limits a petition for rehearing “to a consideration
       of the issues argued on the appeal,” CR 76.32(b), “[e]xcept in extraordinary cases
       when justice demands it,” id. As a result, error raised for the first time in a
       petition for rehearing will not be considered. See Reed v. Reed, 457 S.W.2d 4
       (Ky. 1969); Commonwealth, Dept. of Highways v. Thomas, 427 S.W.2d 213, 217
       (Ky. 1967); Herrick v. Wills, 333 S.W.2d 275, 276 (Ky. 1959). Thus, even if
       Johnson had raised this issue in a petition for rehearing, his failure to raise it in
       the original briefs would have amounted to a waiver.

Johnson v. Commonwealth, 450 S.W.3d 707, 713 (Ky. 2014).

       Manns received three consecutive twenty-year sentences under circumstances where trial

counsel argued for concurrent sentences and the trial court declared itself bound by Devore.

Given that the issue was clearly preserved and a favorable ruling would have resulted in a

resentencing that might have reduced Manns’s sentence, appellate counsel should have at a

minimum, sought leave to add a claim under Peyton before the Kentucky Supreme Court decided

Manns’s appeal. Competent appellate counsel should keep abreast of relevant appellate court

decisions issued between briefing and decision. See ABA Model Rules of Professional Conduct

1.1 (“A lawyer shall provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the




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Case No. 15-6025, Manns v. Beckstrom


representation.”) and 1.3 (“A lawyer shall act with reasonable diligence and promptness in

representing a client.”).3

        For these reasons, I conclude that Manns’s ineffective assistance claims are substantial.

On his IATC claim, Manns is entitled to have his conviction and sentence for one of the two

counts related to the February 9, 2005 buy vacated; on his IAAC claim, Manns is entitled to

resentencing because the state trial judge had discretion to run the sentences on the remaining

two convictions either concurrently or consecutively with each other.




        3
           Kentucky adopted the ABA Model Rules of Professional Conduct in 1989.                     See
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_profession
al_conduct/alpha_list_state_adopting_model_rules.html. Ky. Rules of Professional Conduct, SCR
3.130(1.1), comments (5) and (6) provide, “Competent handling of a particular matter includes inquiry
into and analysis of the factual and legal elements of the problem . . . ” and “To maintain the requisite
knowledge and skill, a lawyer should keep abreast of changes in the law and its practice . . .”

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