                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 05-7955



CARL E. LYONS,

                                            Petitioner - Appellant,

     versus


REGINALD WEISNER, Superintendent of Alexander
Correctional Institution,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (CA-04-774)


Argued:   January 30, 2007             Decided:   September 11, 2007


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.       Judge
Traxler wrote an opinion concurring in the result.


ARGUED: Christopher R. Murray, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Erwin Chemerinsky, James E. Coleman, Jr., Tina
Duan, Matthew W. Howell, Christopher Montville, Anastasia Wade,
DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for
Appellant. Roy Cooper, Attorney General, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Carl E. Lyons, a state prisoner, petitions for habeas relief,

pursuant to 28 U.S.C.A. § 2254(d) (West 2005), from his sentence of

360-441    months’   imprisonment,    contending     that   he   received   a

sentence in violation of Blakely v. Washington, 542 U.S. 296

(2004).    Although the district court held, as the State conceded,

that the state court’s adjudication of his claim resulted in a

decision    contrary   to    established   Supreme   Court   precedent      in

Blakely, the district court further concluded that this error was

harmless.    Because the Blakely sentencing error was not harmless,

we must reverse and remand for further proceedings.



                                     I.

     Lyons entered an Alford plea to first-degree sexual offense

and first-degree kidnaping in Wake County Superior Court in North

Carolina.     See North Carolina v. Alford, 400 U.S. 25 (1970).          The

prosecutor proffered a statement of facts in support of the Alford

plea; Lyons neither objected to the statement, nor admitted the

facts it contained.         On direct appeal, the Court of Appeals of

North Carolina summarized the prosecutor’s statement as follows:

     Th[e] statement set forth the following facts. Defendant
     invited a childhood friend and his family to temporarily
     live in defendant’s home in Raleigh while the friend
     looked for a house in the Triangle or Triad area. In
     encouraging his friend, defendant announced that he loved
     the friend’s 15-year-old son (“K.V.M.”) “like a son[.]”
     Despite the friend’s initial reluctance, the family moved
     into defendant’s home in the fall of 2001.

                                     2
     K.V.M., his father, his stepmother, and two step-
siblings lived in defendant’s home for approximately a
month and a half.    During this time, K.V.M.’s father
traveled back and forth to Greensboro searching for a new
house for his family, always returning to defendant’s
home at night.

     On 4 December 2001, K.V.M.’s father, stepmother, and
two step-siblings went out of town, but left K.V.M. in
Raleigh in defendant’s care. When K.V.M. returned from
school that day, defendant was the only person in the
house. Defendant and K.V.M. smoked marijuana together.
Later, although defendant tried to engage K.V.M. in
conversation, K.V.M. ignored him and played with a video
game that defendant had previously given him.

     K.V.M.’s father called that evening to tell
defendant that he had purchased a home in Greensboro and
that the family would move the next day. At some point
after the call ended, defendant grabbed K.V.M. and took
him upstairs to a bedroom. Defendant told K.V.M. that
either K.V.M. was going to perform fellatio on him or
that defendant was going to perform fellatio on K.V.M.
When K.V.M. refused, defendant pulled a gun out of the
closet and pointed it at K.V.M.      Through the night,
defendant repeatedly performed fellatio on K.V.M. while
displaying the gun.

     At some point that night, defendant forced K.V.M. to
perform fellatio on him.     When K.V.M. was unable to
complete the act and gagged, defendant made K.V.M. lie
down in bed with him and masturbate him until defendant
ejaculated on K.V.M.’s chest.

     The next morning, defendant would not allow K.V.M.
to go toschool [sic].      Defendant swallowed several
hundred over-the-counter painkillers and became woozy.
He again performed fellatio on K.V.M., but then vomited
and became weak. K.V.M. told defendant that the smell of
vomit was making him ill and asked permission to go for
a walk. Defendant told K.V.M. he could go outside, but
that he had to return.      K.V.M. went directly to a
laundromat and called his mother in New York. After the
call, he went to a police station where a police officer
interviewed him, writing in her report that K.V.M. was
violently shaking and crying.



                           3
          The police arrived at defendant’s home and took
     defendant to a hospital because of his consumption of
     pills. During questioning by police, defendant asked if
     K.V.M. was “okay” and said, “[T]ell him I am sorry.”

State v. Lyons, No. COA03-208, 2004 WL 291984, at *1-2 (N.C. Ct.

App. Feb. 17, 2004).

     Based on Lyons’s Alford plea alone, the state court could have

imposed   a   maximum   sentence   of   288-355   months.   However,   at

sentencing, pursuant to the North Carolina Structured Sentencing

Act, see N.C. Gen. Stat. § 15A-1340.10 et seq. (1994), the court

relied on the facts proffered in the prosecutor’s statement to find

an aggravating factor -- that Lyons took advantage of a position of

trust or confidence to commit his offense -- and then sentenced

Lyons to 360-441 months’ imprisonment.

     Lyons appealed to the Court of Appeals of North Carolina,

maintaining that the sentencing court did not have a sufficient

factual basis to find that he took advantage of a position of trust

to commit the offense.      While his appeal was pending before the

Court of Appeals of North Carolina, Lyons also filed a Motion for

Appropriate Relief (MAR) for collateral review, contending, inter

alia, that the state court’s “sentencing procedure,” which “allowed

the trial court, rather than a jury, to find the aggravating

factor,” violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Jones v. United States, 526 U.S. 227 (1999).       In further support of

this claim, he noted that the Supreme Court had granted certiorari

in State v. Blakely, 62 P.3d 889 (Wash. 2003), cert. granted sub

                                    4
nom. Blakely v. Washington, 71 U.S.L.W. 3724 (U.S. Oct. 20, 2003)

(No. 02-1632).

       The Court of Appeals of North Carolina resolved both the

direct appeal and MAR in the same opinion: it found that the

“undisputed” facts sufficed to support the trial judge’s finding of

the aggravating factor, and that Apprendi and Jones did not aid

Lyons; it did not mention the pending Blakely case. Lyons appealed

this   decision   to   the   Supreme   Court   of   North   Carolina,   which

summarily denied discretionary review.         State v. Lyons, 595 S.E.2d

694 (N.C. 2004). Lyons’s conviction became final ninety days after

this decision, on June 30, 2004.           See Clay v. United States, 537

U.S. 522, 525 (2003) (holding that a state judgment becomes final

for habeas purposes when the time expires for filing a petition for

writ of certiorari to the Supreme Court, or ninety days following

the decision of the state's highest court).

       On May 3, 2004, Lyons filed a second MAR, pro se, in which he

once again claimed, inter alia, that under Apprendi only a jury

could find the existence of the aggravating factor that increased

his sentence.     On July 9, 2004, the MAR court rejected that claim.

It noted that after Lyons filed this pro se MAR, the Supreme Court

of the United States had decided Blakely on June 24, 2004, but the

MAR court concluded that Blakely did not assist Lyons because it

did not apply retroactively to cases on collateral review.              State




                                       5
v. Lyons, Nos. 01CRS112990, 01CRS112994 (County of Wake, N.C.

Superior Ct. July 9, 2004).

     Lyons subsequently filed the instant pro se petition for

federal habeas relief pursuant to 28 U.S.C. § 2254(d).                     The

district    court   held   that   the   state   MAR   court   erred   in   its

determination that Blakely did not apply to Lyons’s claim because

the MAR court “inadvertently failed to recognize that a case is not

considered final on direct review until the 90-day time period to

file a certiorari petition to the United States Supreme Court

expires.”    Nonetheless, the district court denied Lyons habeas

relief, concluding that any Blakely error was harmless.                Lyons

noted a timely appeal.      We granted a certificate of appealability

to consider Lyons’s claim of Blakely error, and appointed counsel

to represent him.



                                     II.

     The Antiterrorism and Effective Death Penalty Act (AEDPA) of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), provides that

federal courts may grant habeas relief only if an underlying state

court adjudication “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.”    28 U.S.C. § 2254(d)(1).         Lyons contends that the state

courts’ adjudication of his case resulted in a decision that was


                                        6
contrary to “clearly established Federal law” as determined by the

Supreme Court in Blakely.

     In   Blakely,   the   Supreme   Court    clarified   its    holding   in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that the Sixth

Amendment   requires   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.”           The Blakely Court explained

that the “‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.”               542

U.S. at 303.

     The North Carolina Structured Sentencing Act under which Lyons

was sentenced plainly violates the Blakely holding.           For the North

Carolina statute requires a judge (rather than a jury) to find by

a preponderance of the evidence (rather than beyond a reasonable

doubt) aggravating factors that increase the maximum penalty for a

crime.    Indeed, in response to the Supreme Court’s opinion in

Blakely, the Supreme Court of North Carolina itself has held that

those portions of the North Carolina Structured Sentencing Act that

“require judges to consider aggravating factors not found by a jury

or admitted by the defendant and which permit imposition of an

aggravated sentence upon judicial findings of such aggravating

factors by a preponderance of the evidence are unconstitutional.”


                                     7
State v. Allen, 615 S.E.2d 256, 262 (N.C. 2005) (withdrawn on other

grounds).

     Repeatedly conceding -- at the district court and in its

appellate brief -- that Blakely applies to Lyons’s case, the State

argues that Blakely error was harmless and thus affirmance proper.

We, however, asked the State to address at oral argument the

question of whether Blakely qualifies as “clearly established

Federal law” in this case given that although the Blakely opinion

had been issued when Lyons’s conviction became final for habeas

purposes and when the state MAR court considered Lyons’s claim, it

had not been issued when the Supreme Court of North Carolina issued

its order rejecting Lyons’s direct appeal.   We attempted to pursue

this line of inquiry at oral argument, but the State once again

conceded that Blakely applies to Lyons’s appeal and requested that

we “rule on the harmless error issue.”    Accordingly, we consider

here only whether conceded Blakely error requires reversal in this

case.



                               III.

     Typically, in conducting harmless error review in habeas

cases, a court can grant relief only if, after consideration of the

entire record, it can conclude “with fair assurance” that an error

did not have “a substantial and injurious effect or influence” on

the jury’s verdict, Kotteakos v. United States, 328 U.S. 750, 765,


                                8
776 (1946), or is in “grave doubt” as to this question, O’Neal v.

McAninch, 513 U.S. 432, 436 (1995).             See also Fry v. Pliler, No.

06-5247, 127 S. Ct. 2321, 2326-28, 2007 WL 1661463, at *5-6 (U.S.

June 11, 2007).1

      Although by definition Blakely error arises from the lack of

a   jury   verdict   with    respect   to   a   sentencing     factor,   it   can

nevertheless be harmless.        See Washington v. Recuenco, 548 U.S.__,

126 S. Ct. 2546, 2553 (2006).          In determining the harmlessness of

an error in a case without a jury verdict, a court considers the

entire record and determines whether it can conclude “with fair

assurance”    that   a    reasonable   jury     would   have   found   beyond   a

reasonable doubt that the defendant committed the acts establishing

the challenged sentencing factor, or if it is in “grave doubt” as

to this question.        Cf. Patterson v. Haskins, 316 F.3d 596, 609 (6th

Cir. 2003) (applying this standard when considering on habeas

whether a trial court’s failure to instruct a jury on an element of

an offense constituted harmless error).



      1
      The Supreme Court initially enunciated this standard in
reviewing nonconstitutional errors on direct appeal of a federal
conviction in Kotteakos, and later adopted it as the appropriate
standard for collateral review of a state court criminal judgment
under 28 U.S.C. § 2254. See Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993). Then in O’Neal, the Court held that if a federal
court reviewing a state court judgment under § 2254 has “grave
doubt” as to the harmlessness of an error, it should “treat the
error as if it affected the verdict.”    513 U.S. at 436. In Fry,
the Court reiterated that the Brecht-O’Neal standard applies in all
§ 2254 cases, even those decided post-AEDPA. 127 S. Ct. at 2326-
28.

                                        9
      Here, the district court reasoned that the Blakely error was

harmless because “[b]ased on the evidence in the stenographic

transcript of the guilty plea proceeding, no reasonable jury could

have” failed to find that Lyons took advantage of a position of

trust to commit his offense.           We cannot agree.        We have no need to

fall back on O’Neal’s “grave doubt” rule, for we find it impossible

to conclude with any assurance, on the basis of the record in this

case, that a reasonable jury would have found beyond a reasonable

doubt this aggravating factor, which the sentencing judge found

only by a preponderance of the evidence based on the prosecutor’s

proffer.

      Although Lyons did not object to the prosecutor’s proffer when

he entered his Alford plea, neither did he admit to the facts

contained in it.       See Alford, 400 U.S. at 37.             This proffer alone

does not give us fair assurance that a reasonable jury would have

found     the    presence   of   the   position    of    trust     or   confidence

aggravating factor beyond a reasonable doubt.2

      Indeed, the North Carolina courts have “upheld a finding of

the     ‘trust    or   confidence’     factor     in    very    limited    factual


      2
      The victim’s mother, who was living in New York at the time
of the offense, testified at the sentencing hearing, “I gave . . .
my trust” to Lyons and “[w]hen [K.V.M.] told me [what] happened, I
knew exactly what he was talking about” because “we always heard
[about] things that [Lyons] ha[d] done.” This statement does not
appear to have been offered specifically in support of the
aggravating factor.     In any event, it is too ambiguous to
constitute support for proof of the aggravating factor beyond a
reasonable doubt.

                                        10
circumstances.”        State v. Mann, 560 S.E.2d 776, 791 (N.C. 2002).

To apply the enhancement, a jury must find that both: (1) “a

position of trust existed,” and (2) the “defendant abused the

position of trust in order to commit the assault.”            See State v.

Nicholson, 610 S.E.2d 433, 437 (N.C. Ct. App. 2005).            Even if we

assume that the facts stated in the proffer are true, they do not

provide us with “fair assurance” that a reasonable jury would have

found beyond a reasonable doubt that a position of trust existed

between Lyons and the victim or that Lyons abused that position to

commit the assault.

       As to the existence of a position of trust, the State asserts

that a position of trust must exist when a minor is left in the

care of the defendant overnight.        But all of the cases on which the

States relies involve very different facts.          For, in each of them

the minor victim had a familial or other close relationship with

the abuser, or was very young and so extremely dependent on the

defendant, or both.       See State v. Farlow, 444 S.E.2d 913, 918 (N.C.

1994) (finding a position of trust when nine-year old victim

“essentially lived with [the] defendant” while the mother was

repeatedly away for her job as a long-distance truck driver); State

v. Holden, 365 S.E.2d 626 (N.C. 1988) (finding a position of trust

when    victim   was    three-months    old   and   the   daughter   of   the

defendant); State v. Daniel, 354 S.E.2d 216, 218 (N.C. 1987)

(finding a position of trust when defendant mother was “singularly


                                       11
responsible” for the infant victim’s “welfare”); State v. Gilbert,

385 S.E.2d 815, 817 (N.C. Ct. App. 1989) (finding a position of

trust when the victim was six-years old and “a frequent visitor in

defendant’s home”); State v. Caldwell, 355 S.E.2d 813, 814 (N.C.

Ct. App. 1987) (finding a position of trust between defendant and

his stepson and his stepson’s cousin, both of whom lived with the

defendant for the summer).      In the case at hand, the facts

contained in the proffer indicate that the victim was not an

infant, not six, not nine, but fifteen-years old; moreover, he was

neither related in any way to Lyons nor did he have a particularly

close relationship with Lyons. Certainly it could not be said that

Lyons was “singularly” responsible for his “welfare.”   Daniel, 354

S.E.2d at 218.   Thus, a jury might well have concluded that no

position of trust existed.

     Moreover, even if a jury were to find that a position of trust

did exist, the North Carolina Court of Appeals has held that a

defendant has not taken advantage of a position of trust or

confidence when the “defendant’s actions were accomplished as a

result of the use of force alone.”   Nicholson, 610 S.E.2d at 437.

According to the prosecution’s proffer, Lyons accomplished his

actions solely through the use of force, by pointing a gun at

K.V.M.   Thus, a reasonable jury, having been instructed on the




                                12
elements of the aggravating factor, could well have found that the

crime was not the result of abuse of a position of trust.3

     Hence, we do not have fair assurance that a reasonable jury

would    have   found   the   aggravating    factor   to   enhance   Lyons’s

sentence. Accordingly, the state court’s Blakely error resulted in

Lyons receiving a sentence months, and perhaps years, longer than

he would otherwise have received.           Thus, we cannot conclude that

the error did not have a “substantial and injurious effect” on

Lyons’s sentence.       Kotteakos, 328 U.S. at 765, 776; see also

Brecht, 507 U.S. at 637.       In sum, the error was not harmless.4


     3
      The North Carolina Court of Appeals in this case concluded
that the facts were “sufficient” to support a finding of the
aggravating factor; but that court operated under a pre-Blakely
regime where the trial judge needed to find the facts supporting
the aggravating factor only by a preponderance of the evidence.
That holding does not affect our conclusion that we have grave
doubt whether a jury could have found the facts supporting the
aggravating factor beyond a reasonable doubt.
     4
      The State also argues that Lyons’s Blakely claim is waived
and non-exhausted. With respect to waiver, relying on Tollett v.
Henderson, 411 U.S. 258 (1973), the State contends that Lyons
waived his right to have a jury sentence him by pleading guilty.
But Tollett only holds that when a defendant pleads guilty, “he may
not thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the
guilty plea.”      Id. at 267 (emphasis added).          Here, the
constitutional violation -- the judge finding the aggravating
factor by a preponderance of the evidence -- occurred after Lyons
pleaded guilty. Thus, Lyons did not waive his right to appeal this
constitutional violation.
     With respect to exhaustion, the State contends that Lyons
failed to exhaust state remedies because he did not seek review of
the order denying his post-conviction MAR.         In fact, Lyons
exhausted his claim by raising it on direct appeal to the Court of
Appeals of North Carolina and the Supreme Court of North Carolina,
which is sufficient in North Carolina to exhaust a claim for

                                    13
                               IV.

     For the foregoing reasons, we conclude that the district court

erred in denying Lyons habeas relief.   We reverse the judgment of

the district court and remand the case with directions to issue a

writ of habeas corpus, unless the state court resentences Lyons

within a reasonable period of time to be set by the district court.



                                             REVERSED AND REMANDED




federal habeas purposes. See Skipper v. French, 130 F.3d 603, 610
n.4 (4th Cir. 1997) (holding on federal habeas review of a North
Carolina conviction that “[e]xhaustion principles would not have
required” petitioner even to bring a MAR at all, so long as he
raised federal claims on direct appeal). Thus, the North Carolina
courts had a “full” and “fair opportunity” to consider the
substance of his claim, so it has been properly exhausted.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Baldwin
v. Reese, 541 U.S. 27, 29, 32 (2004) (holding that “[t]o provide
the State with the necessary opportunity, the prisoner must fairly
present his claim,” and concluding that “fair presentation”
requires simply that the prisoner’s petition or brief “alert [the
court] to the presence of a federal claim” (internal quotation
marks omitted)).



                                14
TRAXLER, Circuit Judge, concurring in the result:

     Because of the concessions made by the State and the fact that

I have grave doubt as to the harmlessness of attributing the

aggravating circumstance to the appellant, I concur in the result

reached by my colleagues.




                                15
