                           File Name: 12a0070n.06
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 10-5960                                     FILED
                                                                                       Jan 20, 2012
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                              LEONARD GREEN, Clerk



                                                         )
WILLIAM ZUKOWSKI,                                        )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
       Petitioner-Appellant,                             )        COURT FOR THE MIDDLE
                                                         )        DISTRICT OF TENNESSEE
                                                         )
       v.
                                                         )
                                                         )
TONY PARKER,                                             )
                                                         )
       Respondent-Appellee.                              )
                                                         )


Before: COOK, WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Petitioner, William Zukowski, appeals the district

court’s denial of his § 2254 petition for writ of habeas corpus. We AFFIRM.

                                                 I.

       On March 21, 2001, a Tennessee state-court jury convicted Zukowski of five counts of rape

of a child. TENN . CODE ANN . § 39-13-522. On May 11, 1001, the state court sentenced Zukowski

to the maximum sentence for each count – twenty-five years – with the sentences to run

consecutively, for a total of 125 years of imprisonment. Zukowski then entered a “best interest” plea

to three additional counts of rape of a child and one count of aggravated rape. By agreement,

Zukowski was sentenced to a term of twenty-five years for these offenses, to be served concurrently

with his 125-year sentence. The Tennessee Court of Criminal Appeals affirmed the convictions on
January 31, 2003, and the Tennessee Supreme Court denied Zukowski’s application for review on

May 19, 2003. On May 18, 2004, Zukowski filed a petition for post-conviction relief in state court.

The petition was denied on August 24, 2006, and the Tennessee Court of Criminal Appeals affirmed

the denial on January 9, 2008. The Tennessee Supreme Court denied Zukowski’s request for appeal

on May 12, 2008.

       Zukowski then filed a petition for writ of habeas corpus in the United States District Court

for the Middle District of Tennessee pursuant to 28 U.S.C. § 2254. In his habeas petition, Zukowski

claimed for the first time that his sentence violated his Sixth Amendment right to trial by jury

because it was based on enhancements found by the court rather than the jury.

       On October 14, 2008, Zukowski filed a motion to re-open his state-court post-conviction

proceedings to exhaust his Sixth Amendment claim. In the motion, Zukowski claimed that his

sentence violated the United States Supreme Court’s decisions in Blakely v. Washington, 542 U.S.

296 (2004), and Cunningham v. California, 549 U.S. 270 (2007). Under Tennessee law, a motion

to re-open post-conviction proceedings may be granted where:

       The claim in the motion is based upon a final ruling of an appellate court establishing
       a constitutional right that was not recognized as existing at the time of trial, if
       retrospective application of that right is required. The motion must be filed within
       one (1) year of the ruling of the highest state appellate court or the United States
       supreme court establishing a constitutional right that was not recognized as existing
       at the time of trial[.]

TENN . CODE ANN . § 40-30-117(a).




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       The Tennessee court determined that Zukowski’s motion was based on the Tennessee

Supreme Court’s then-recent decision in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). In Gomez,

the court held, in part, that in light of the United States Supreme Court’s decision in Cunningham,

Blakely applied to Tennessee’s sentencing scheme. The court nevertheless denied Zukowski’s

motion based on its determination that Blakely does not apply retroactively to cases on collateral

review, and thus Cunningham and Gomez did not apply to his case. The court also stated that even

if Gomez applied, Zukowski’s motion, filed one year and five days after the Gomez decision, was

untimely. See TENN . CODE ANN . § 40-30-117(a).

       On appeal, the Tennessee Court of Criminal Appeals agreed that Blakely does not apply

retroactively to cases on collateral review. The court further determined that Zukowski did not

satisfy the criteria under § 40-30-117(a) to re-open his post-conviction proceedings because the

Gomez decision only clarified the rule first announced in Apprendi v. New Jersey, 530 U.S. 466

(2000), and thus did not constitute a “final ruling of an appellate court establishing a constitutional

right that was not recognized as existing at the time of [petitioner’s] trial.”

       Zukowski filed an amended habeas petition on August 17, 2009, alleging six claims for relief.

The district court denied Zukowski’s petition on July 9, 2010. With respect to Zukowski’s Blakely

claim, the court found the claim procedurally defaulted. The court also denied this claim on the

ground that Blakely does not apply to collateral proceedings. On October 18, 2010, the district court

granted Zukowski a certificate of appealability on all claims. The instant appeal followed.




                                                 -3-
                                                    II.

        This court reviews a district court’s denial of a habeas petition de novo. Sherwood v.

Prelesnik, 579 F.3d 581, 584 (6th Cir. 2009). Because Zukowski solely challenges the district

court’s denial of his Blakely claim, all other claims are deemed waived. United States v. Johnson,

440 F.3d 832, 845 (6th Cir. 2006).

        Zukowski contends the district court erred in finding that Blakely was not retroactive and that

his claim was procedurally defaulted. For the purpose of retroactivity analysis, a state conviction

is final “when the availability of direct appeal to the state courts has been exhausted and the time for

filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”

Wheeler v. Jones, 226 F.3d 656, 659 (6th Cir. 2000) (quoting Caspari v. Bohlen, 510 U.S. 383, 390

(1994)). Zukowski did not file a petition for writ of certiorari to the United States Supreme Court.

Accordingly, Zukowski’s conviction became final on August 17, 2003, ninety days after the

Tennessee Supreme Court denied his request for appeal. See Sherwood, 579 F.3d at 585.

        The United States Supreme Court decided Blakely on June 24, 2004, ten months after

Zukowski’s conviction became final. We have repeatedly held that Blakely does not apply

retroactively to cases on collateral review. See, e.g., Taniguchi v. United States, 262 F. App’x 714

(6th Cir. 2008); Valentine v. United States, 488 F.3d 325 (6th Cir. 2007). Thus, regardless whether

the district court correctly found that Zukowski’s Blakely claim is procedurally defaulted, he is not

entitled to habeas relief on this claim.

        For these reasons, we AFFIRM.




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