                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 13a0082p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                               X
                                                -
 DERRY LOVINS,
                                                -
                             Petitioner-Appellant,
                                                -
                                                -
                                                    No. 11-5545
         v.
                                                ,
                                                 >
                                                -
                       Respondent-Appellee. -
 TONY PARKER, Warden,
                                               N
                  Appeal from the United States District Court
               for the Western District of Tennessee at Memphis.
         No. 2:08-cv-2706—Jon Phipps McCalla, Chief District Judge.
                                Argued: November 27, 2012
                           Decided and Filed: March 28, 2013
        Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge*

                                    _________________

                                          COUNSEL
ARGUED: Ryan T. Holt, SHERRARD & ROE, PLC, Nashville, Tennessee, for
Appellant. Brent C. Cherry, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee. ON BRIEF: Ryan T. Holt, SHERRARD & ROE,
PLC, Nashville, Tennessee, for Appellant. Brent C. Cherry, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        JANE B. STRANCH, Circuit Judge. After a Tennessee state court jury convicted
petitioner Derry Lovins of second-degree murder, the state trial court judge made
additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three


        *
        The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.


                                                1
No. 11-5545         Lovins v. Parker                                                 Page 2


years based on those findings. In this petition for a writ of habeas corpus under
28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the three-
year sentence enhancement was unconstitutional under the rule of Blakely v.
Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts
that were not found by a jury. The history of Lovins’s requests for relief in state court
is byzantine, but the legal principles are not. Lovins’s direct appeal was not final until
almost three years after the Blakely decision, and therefore Blakely applies to his case
under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314
(1987), and Teague v. Lane, 489 U.S. 288 (1989). For this reason, and because the
procedural default doctrine does not bar our review of the merits of Lovins’s Blakely
claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT
a writ of habeas corpus on the Blakely sentencing claim only. We AFFIRM the district
court’s denial of relief on all of Lovins’s other claims.

                                    I. OVERVIEW

A. Factual background

        The facts that led to Lovins’s conviction are largely uncontested. On December
4, 2001, Lovins was driving a van with four passengers, and Geoffrey Burnett was
driving a car with two passengers. In an encounter on a street in Dyersburg, Tennessee,
Lovins used a .357 handgun to fire two shots at Burnett’s car, killing Burnett. Lovins
later turned himself in.

        At trial, Lovins was represented by retained counsel Charles Agee, and he
pursued a self-defense strategy. Lovins presented two witnesses who testified that
Burnett had told them he was going to kill Lovins that day. One of those witnesses was
Burnett’s girlfriend. She testified that Burnett stated to her on the day of the murder that
he was going to get a gun, and she understood him to mean he was going to get the gun
“to take care of a problem” he was having with Lovins. State v. Lovins, No. W2003-
00309-CCA-R3-CD, 2004 WL 224482, at *4–5 (Tenn. Crim. App. Feb. 4, 2004)
(“Lovins I”).
No. 11-5545          Lovins v. Parker                                                    Page 3


        Lovins called two additional witnesses who testified that Burnett was a
dangerous individual who had been involved in shootings previously. Lovins attempted
to procure testimony from one of these witnesses, Kim Floyd, to show Burnett had been
involved in a shooting that resulted in the death of Floyd’s two-year-old child. Though
the trial court limited Floyd’s direct testimony, the testimony presented contained
sufficient information for the jury to infer what had happened. Floyd testified that her
child had been killed “at the hands of a couple people that’s involved with this case.”
Later, the court allowed Lovins to testify that Floyd told him Burnett “was thought to
have been involved in a homicide involving her family.”

        The State presented testimony from a passenger in Burnett’s vehicle; testimony
from various police witnesses; forensic and autopsy results; and physical evidence
recovered from the vehicles. A police investigator testified that he recovered three .357
bullets and a single brown work glove from Lovins’s vehicle. An envelope containing
the evidence was admitted without objection, but Lovins now alleges that the State did
not properly disclose this evidence during pretrial discovery.

        On August 22, 2002, the jury found Lovins guilty of second-degree murder.

B. Sentencing

        In determining Lovins’s sentence, the trial court applied a procedure that the
Tennessee Supreme Court later acknowledged to be unconstitutional under Blakely. The
judge followed the Tennessee sentencing rules then set forth in Tennessee’s Criminal
Sentencing Reform Act of 1989. See Tenn. Code. Ann. § 40-35-210 (2000).1 Section
40-35-210 instructed the court first to determine the appropriate range of the sentence,
stating that “[t]he presumptive sentence for a Class A felony shall be the midpoint of the
range if there are no enhancement or mitigating factors.” § 40-35-210(c). If a judge
found enhancement factors, the sentence could be increased. § 40-35-210(d).




        1
         Section 40-35-210 was amended in 2005. See Act of June 7, 2005, ch. 353, 2005 Tenn. Pub.
Acts 788. References that follow are to the version of the statute prior to this amendment.
No. 11-5545        Lovins v. Parker                                                Page 4


       At this point, a short primer on Blakely is necessary to understand the parties’
arguments. The relevant United States Supreme Court precedent begins with Apprendi
v. New Jersey, which held 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.” 530 U.S. 466, 490 (2000).
Four years later, in Blakely, the Court clarified that the definition of “‘statutory
maximum’ for Apprendi purposes is not the high-end that a sentence may not exceed,
but rather the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. A
year later, the Court clarified that the Apprendi/Blakely rule applies to the federal
sentencing guidelines. United States v. Booker, 543 U.S. 220, 226–27 (2005).

       In its first encounter with Blakely, the Tennessee Supreme Court determined that
the rule did not necessarily invalidate § 40-35-210. State v. Gomez, 163 S.W.3d 632,
661 (Tenn. 2005) (“Gomez I”). The defendants in Gomez I, however, filed a petition for
certiorari to the United States Supreme Court. On January 27, 2007, the Court
invalidated California’s sentencing procedure, which was virtually identical to
Tennessee’s. Cunningham v. California, 549 U.S. 270 (2007). On February 20, the
Supreme Court vacated Gomez I and remanded the case to the Tennessee Supreme Court
for consideration in light of Cunningham. Gomez v. Tennessee, 549 U.S. 1190 (2007).
On remand, the Tennessee Supreme Court acknowledged that § 40-35-210 “violated the
Sixth Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and
Cunningham.” State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”).

       At the time Lovins was sentenced, however, the Supreme Court had not yet
decided Blakely. Pursuant to § 40-35-210, the judge determined that the range for
Lovins would be fifteen to twenty-five years and therefore the presumptive sentence
would be twenty years. He then, without the assistance of a jury, found the existence of
four aggravating factors and the absence of any mitigating factors. He found that Lovins
(1) had a history of criminal convictions or behavior, (2) had a history of unwillingness
to comply with conditions of release, (3) possessed a firearm during the commission of
No. 11-5545        Lovins v. Parker                                                 Page 5


his offense, and (4) showed no hesitation about committing a crime with a high risk to
human life. Based on these findings, the judge increased Lovins’s sentence from twenty
to twenty-three years in prison. Lovins’s counsel did not object to the sentencing
methodology by, for example, alleging that it violated Apprendi.

C. Direct and postconviction review

       Though Lovins was sentenced in 2002, direct review of his conviction and
sentence did not ultimately become final until 2007—nearly three years after the Blakely
decision. The procedural history was unusual, however, because Lovins’s counsel at
first failed to file an application for permission to appeal on direct review to the
Tennessee Supreme Court. Then, only after Lovins had filed a pro se motion for
postconviction relief, the Tennessee Court of Criminal Appeals determined that his
counsel’s failure constituted ineffective assistance and re-opened Lovins’s direct review
to allow the filing. As a result of this intertwined direct and postconviction review, the
Tennessee Supreme Court did not finally deny relief on Lovins’s direct appeal until
March 5, 2007.

       In Lovins’s initial and unsuccessful direct appeal to the Court of Criminal
Appeals, he presented only one argument: that the evidence was insufficient to support
a conviction for second-degree murder. The Court of Criminal Appeals denied relief on
this claim on February 4, 2004. When Lovins later filed his request for postconviction
relief, however, he significantly expanded his allegations of error. He framed his request
for state postconviction relief as a claim of ineffective assistance of trial and appellate
counsel, arguing that his counsel had (1) failed to appeal the exclusion of Kim Floyd’s
testimony about Burnett’s role in the death of her daughter, (2) failed to appeal the
“length of the sentence and the application of enhancement factors,” and (3) failed to file
the request for permission to appeal to the Tennessee Supreme Court, among other
failures. The petition also noted that the prosecution had failed to disclose the physical
evidence that was introduced at trial.

       The trial court held a postconviction relief hearing and denied relief on all claims
in a June 2, 2005 order that noted Lovins was alleging a “Blakely violation.” The trial
No. 11-5545            Lovins v. Parker                                                            Page 6


court, however, found no constitutional violation “pursuant to the recent Tennessee
Supreme Court decision in [Gomez I],” in which the Tennessee sentencing procedure
was held not to violate Blakely. Lovins appealed.

         The Court of Criminal Appeals then delivered two separate rulings on
postconviction relief. First, the court held that Lovins’s trial counsel, Agee, had
“unilaterally terminated” Lovins’s direct appeal. As a result, the court found that Lovins
was “entitled to seek a delayed Rule 11 application to appeal to the Tennessee Supreme
Court” under Tennessee Supreme Court Rule 28, § 9(D)(2)(b)(i).2 The Court of
Criminal Appeals therefore vacated its original direct appeal order from February 4,
2004, and “reinstate[d]” it as of November 3, 2006, to allow Lovins to seek review by
the Tennessee Supreme Court of his direct appeal. R. 18-1 at PageID #4. In the
meantime, the court stayed the remaining postconviction proceedings. Id.; see Gibson
v. State, 7 S.W.3d 47, 49 (Tenn. Crim. App. 1998) (noting that a petition for
postconviction relief “may not be maintained while a direct appeal of the same
conviction and sentence is being prosecuted”).

         Though Lovins had been appointed new counsel for his petition for
postconviction relief, the Court of Criminal Appeals instructed Lovins’s direct appeal
counsel, Agee, to file this application for permission to appeal on direct review. In the
application, despite the fact that Lovins had raised several additional constitutional
claims in his motion for postconviction relief, Agee again only presented one question
for review: whether the evidence had been sufficient to convict. On March 5, 2007, with
a bare form order, the Tennessee Supreme Court denied the request for leave to appeal.
Lovins did not file a petition for writ of certiorari to the United States Supreme Court.


         2
           Rule 28, § 9(D) empowers trial courts and the Tennessee Court of Criminal Appeals hearing a
petition for postconviction relief to enter an order “granting the petitioner a delayed appeal” from a
judgment entered on direct review of the petitioner’s conviction and sentence. See Stokes v. State,
146 S.W.3d 56, 61 (Tenn. 2004) (noting that such a delayed appeal is available to petitioners for unilateral
termination of their direct appeal, though not for termination of a postconviction appeal). Once a delayed
appeal is granted, and the proper Rule 11 application is filed, “the Appellate Court Clerk shall immediately
reinstate the original appeal on the docket” and the appeal then proceeds as it would otherwise have on
direct review under Rule 11. Tenn. Sup. Ct. R. 28, § 9(D)(2)(b)(iii). “Where a delayed appeal is granted
and the petitioner is unsuccessful on appeal, and new issues cognizable in a post-conviction proceeding
result from the handling of the delayed appeal, the petitioner may amend the original post-conviction
petition to include such new issues.” Id. §9(D)(3)(a).
No. 11-5545       Lovins v. Parker                                                  Page 7


       After the original appeal had been reinstated and was finally completed, the
Court of Criminal Appeals resumed the postconviction process and filed a second
opinion and order denying postconviction relief on all of Lovins’s claims. In that
September 14, 2007 order, the court did not state that any of Lovins’s claims were
defaulted for state-law procedural reasons. Instead, it addressed and dismissed each
claim on the merits.

       On the Blakely claim, the Court of Criminal Appeals noted that the United States
Supreme Court had recently vacated the State v. Gomez decision (Gomez I) on which the
trial court had predicated its conclusion that no Blakely violation had occurred.
Nonetheless, the Court of Criminal Appeals denied relief on the claim, stating that
Blakely was not applicable to cases on collateral review. Because this is the last
reasoned state-court decision on the Blakely issue, we reproduce the relevant language
in full below:

       In Blakely, the United States Supreme Court concluded that the
       “‘statutory maximum’ for Apprendi [v. New Jersey, 530 U.S. 466
       (2000),] 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.” Blakely, 542 U.S. at 303. Subsequent to that decision, our
       supreme court decided State v. Gomez, in which a majority of the court
       concluded that, unlike the sentencing scheme in Blakely, “Tennessee’s
       sentencing structure does not violate the Sixth Amendment.” Gomez,
       163 S.W.3d at 661. However, the United States Supreme Court recently
       vacated our supreme court’s ruling in Gomez and remanded the case for
       reconsideration in light of its recent decision in Cunningham v.
       California, 549 U.S. ----, 127 S. Ct. 856 (2007). Thus, we no longer
       follow Gomez given the Supreme Court’s instruction. State v. James A.
       Mellon, No. E2006-00791-CCA-R3-CD, 2007 WL 1319370, *9 (Tenn.
       Crim. App., at Knoxville, May 7, 2007) (no Tenn. R. App. 11 application
       filed). In the present case, Petitioner raised the issue in a collateral
       attack. This Court has previously held that retrospective application of
       the rule announced in Blakely is not applicable to cases on collateral
       review. Roy Allen Burch v. State, No. E2004-02365-CCA-R3-PC, 2005
       WL 1584379, *2 (Tenn. Crim. App., at Knoxville, July 7, 2005) (no
       Tenn. R. App. P. 11 application filed) (citing Isaac Lydell Herron v.
       State, No. W2004-02533-CCA-R28-PC (Tenn. Crim. App., at Jackson,
       Nov. 22, 2004)). Petitioner is not entitled to relief on this issue.
No. 11-5545        Lovins v. Parker                                                 Page 8


Lovins v. State, No. W2005-01446-CCA-R3-PC, 2007 WL 2700097, at *12 (Tenn. Crim.
App. Sept. 14, 2007) (“Lovins II”). Lovins filed an application for permission to appeal
that postconviction ruling to the Tennessee Supreme Court, but the application was
denied. He then filed a motion to recall the mandate of the Tennessee Supreme Court
and requested leave to file a petition for extraordinary review of the Blakely claim, but
that motion was denied as well.

       This habeas case requires a review of the retroactivity reasoning of the Court of
Criminal Appeals—the last state court to enter a reasoned decision on Lovins’s Blakely
claim. And the focus of this inquiry will necessarily be on the timing of each of the
preceding state-court decisions. We recognize that it can be difficult to distill the
temporal relationship from the above narrative and thus (at the risk of repetition) include
below a time-line of the state-court decisions in Lovins’s case:

       # September 17, 2002: Sentencing. State trial court finds additional facts
       and enhances Lovins’s sentence from 20 to 23 years.
       # February 4, 2004: Direct appeal. Conviction and sentence affirmed on
       direct appeal by the Tennessee Court of Criminal Appeals.
       # June 24, 2004: U.S. Supreme Court decides Blakely v. Washington.
       # June 2, 2005: Postconviction review. State trial court recognizes that
       Lovins has alleged a Blakely violation, but denies relief.
       # November 3, 2006: Postconviction review. Court of Criminal Appeals
       finds ineffective assistance of counsel and “reinstate[s]” its February 4,
       2004 judgment, in order to allow the direct appeal to be re-opened.
       # March 5, 2007: Direct appeal. Tennessee Supreme Court denies
       Lovins’s application for permission to appeal on his re-opened direct
       review.
       # September 14, 2007: Postconviction review. Court of Criminal
       Appeals acknowledges the Tennessee sentencing procedures likely
       violated Blakely, but still denies relief on Lovins’s postconviction
       Blakely claim based on a retroactivity analysis. This is the last reasoned
       state court decision.

The key relationship, as discussed below, is between Lovins’s direct appeal and
Blakely—which was decided nearly three years before Lovins’s re-opened direct appeal
No. 11-5545          Lovins v. Parker                                                 Page 9


ultimately became final. In the end, despite this unusual procedural history, both the
Court of Criminal Appeals and the Tennessee Supreme Court denied postconviction
relief.

D. Federal habeas

          Having exhausted his state court postconviction appeals, Lovins filed a federal
petition for habeas corpus. In that petition, Lovins again alleged, among other claims,
(1) his Blakely claim, (2) the claim based on exclusion of Floyd’s testimony, and (3) his
claim based on the State’s failure to disclose the physical evidence prior to trial. He also
alleged a claim of ineffective assistance of trial and appellate counsel as “cause” to
excuse any procedural default of his Apprendi/Blakely claim. The district court granted
summary judgment to the State on all claims. We granted a certificate of appealability.

          Now, on appeal, Lovins maintains his allegations of state-court trial error, but he
devotes his briefing and oral argument almost entirely to the Blakely sentencing claim.
He argues that the Tennessee state courts and the federal district court have improperly
analyzed the question of whether Blakely applies retroactively to his case. In response,
the State does not challenge Lovins’s argument that the sentencing procedure employed
in his case now violates the Sixth Amendment, nor does it challenge the argument that
Lovins’s direct appeal became final three years after Blakely was published. Instead, the
State argues that the Court of Criminal Appeals and the district court were correct that
Blakely does not apply retroactively to cases on collateral review. In any event, the State
argues, no sentencing issue was ever raised on direct appeal for the Tennessee courts to
consider. Though the State did not use the term “procedural default” in its briefing, the
State clarified at oral argument that it believes Lovins procedurally defaulted his Blakely
claim by failing to raise it at the appropriate time on direct review.

                              II. STANDARD OF REVIEW

          Where a district court denies a federal habeas corpus petition, we review the
district court’s legal conclusions de novo and its factual findings under a “clearly
erroneous” standard. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010).
No. 11-5545         Lovins v. Parker                                               Page 10


        We review the merits of Lovins’s claims—including his Blakely claim—pursuant
to the deferential standard of review Congress mandated in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which provides
that:

        [a]n application for a writ of habeas corpus on behalf of a person in
        custody pursuant to the judgment of a State court shall not be granted
        with respect to any claim that was adjudicated on the merits in State
        court proceedings unless the adjudication of the claim—
                (1) 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; or
                (2) resulted in a decision that was based on an
                unreasonable determination of the facts in light of the
                evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

        “Clearly established federal law,” for the purposes of § 2254(d)(1), refers to
rulings of the United States Supreme Court in place at the time of “the last state-court
adjudication on the merits.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011). A decision is
“contrary to” clearly established federal law under § 2254(d)(1) if “the state court arrives
at a conclusion opposite to that reached by [the Supreme Court] on a question of law or
if the state court decides a case differently than [the Supreme Court] on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

        A state-court decision unreasonably applies clearly established federal law if “the
state court identifies the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
“[E]valuating whether a rule application was unreasonable requires considering the
rule’s specificity.” Harrington v. Richter, 131 S. Ct. 770, 786, (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case determinations.” Id.
No. 11-5545         Lovins v. Parker                                               Page 11


                                    III. ANALYSIS

A. Blakely claim

        “Federal habeas courts reviewing the constitutionality of a state prisoner’s
conviction and sentence are guided by rules designed to ensure that state-court
judgments are accorded the finality and respect necessary to preserve the integrity of
legal proceedings within our system of federalism.” Martinez v. Ryan, 132 S. Ct. 1309,
1316 (2012). In addition to the deferential AEDPA standard of review, these rules
include the judicial doctrines of procedural default and Teague non-retroactivity.
Though the State’s arguments focus almost exclusively on the merits of the last reasoned
state-court decision that denied relief to Lovins, we first address the procedural-default
and Teague defenses.

        1. Procedural default

        Procedural default is a threshold rule that a court generally considers before
reviewing the applicable law and available remedies in a habeas petition. See Lambrix
v. Singletary, 520 U.S. 518, 524 (1997) (noting that procedural default should
“ordinarily” be considered before retroactivity). The procedural default rule is related
to the statutory requirement that a habeas petitioner must exhaust any available state-
court remedies before bringing a federal petition. See 28 U.S.C. § 2254(b), (c). Both
rules have the purpose of allowing state courts the opportunity to address federal
constitutional claims “in the first instance” before the claims are raised in federal habeas
proceedings. Coleman v. Thompson, 501 U.S. 722, 732 (1991).

        We pause before engaging in a procedural default analysis because the State did
not squarely present procedural default as a defense to the Blakely claim in its briefing
before this court. The State did not discuss exhaustion at all and discussed procedural
default only with regard to Lovins’s claims of trial error and his claim of ineffective
assistance of counsel. The most robust treatment of the issue with regard to Lovins’s
Blakely claim consisted of the following paragraph:
No. 11-5545        Lovins v. Parker                                               Page 12


       The respondent concedes that Blakely was decided before the Tennessee
       Supreme Court denied permission to appeal in the petitioner’s case.
       However, the petitioner raised no sentencing issue in his direct appeal to
       the Tennessee Court of Criminal Appeals and raised no sentencing issue
       in his application to appeal to the Tennessee Supreme Court. The
       petitioner seems to argue that the Tennessee Supreme Court was
       obligated to raise the issue sua sponte.

Resp. Br. 13. The brief does not use the term “procedural default,” otherwise develop
this argument, or provide any case law in support.

       Under similar circumstances, this court has declined to address the procedural
default defense. See Slagle v. Bagley, 457 F.3d 501, 515 (6th Cir. 2006) (“The warden’s
vague assertion of the procedural default defense is not sufficient to bar federal
review.”); see also White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005) (noting that the
procedural default defense is not jurisdictional and therefore “we are not obligated to
raise the issue sua sponte”). Nonetheless, even if the State does waive a procedural
default defense, we may raise it sua sponte. See Howard v. Bouchard, 405 F.3d 459, 476
(6th Cir. 2005). We do so here to clarify the relationship between procedural default,
retroactivity, and AEDPA.

       Under the procedural default rule, a federal court acting on a state prisoner’s
habeas petition will not review a question of federal law if the last state-court judgment
denying relief on the claim rests on a procedural state-law ground that is “independent
of the federal question and is adequate to support the judgment.” Coleman, 501 U.S. at
729–30.    The rule “has its historical and theoretical basis in the ‘adequate and
independent state ground’ doctrine” that governs direct review of state court cases by the
United States Supreme Court. Harris v. Reed, 489 U.S. 255, 260 (1989) (citing
Wainwright v. Sykes, 433 U.S. 72, 78–79, 81–82, 87 (1977)). “In the absence of the
independent and adequate state ground doctrine in federal habeas, habeas petitioners
would be able to avoid the exhaustion requirement by defaulting their federal claims in
state court.” Coleman, 501 U.S. at 732.

       “A claim may become procedurally defaulted in two ways.” Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted
No. 11-5545        Lovins v. Parker                                              Page 13


where state-court remedies have been exhausted within the meaning of § 2254, but
where the last reasoned state-court judgment declines to reach the merits because of a
petitioner’s failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and
the remedies are no longer available at the time the federal petition is filed because of
a state procedural rule. Id.

       At oral argument, the State repeatedly argued that Lovins procedurally defaulted
on his Blakely claim because he never raised it in state court—implicating the second
type of procedural default. But Lovins did raise his claim in state court: he raised it in
his state-court request for postconviction relief. Claims not exhausted on direct appeal
may be exhausted through a properly raised and appealed application for state
postconviction relief. See Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009); Banks
v. Jackson, 149 F. App’x 414, 418 (6th Cir. 2005). Lovins exhausted his Blakely claim
by raising it in his request for postconviction relief and appealing the initial denial of
relief by the trial court to the Court of Criminal Appeals, thereby “invoking one
complete round of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see Thompson v. Bell, 580 F.3d 423, 433 (6th Cir.
2009) (noting that Tennessee Supreme Court Rule 39 “clarified that litigants need not
appeal criminal convictions or post-conviction relief actions to the Tennessee Supreme
Court to exhaust their appeals”).

       Because Lovins exhausted his Blakely claim, the procedural default defense will
only bar our review of the merits of Lovins’s claim if the last reasoned state-court
judgment denying relief on the claim—here, the final postconviction judgment of the
Court Criminal Appeals—rests on a procedural state-law ground that is “independent of
the federal question and is adequate to support the judgment.” Coleman, 501 U.S. at
729–30.

       Under the independent and adequate state ground doctrine, a federal habeas claim
is procedurally defaulted when:
No. 11-5545         Lovins v. Parker                                                 Page 14


        (1) the petitioner fails to comply with a state procedural rule; (2) the state
        courts enforce the rule; (3) the state procedural rule is an adequate and
        independent state ground for denying review of a federal constitutional
        claim; and (4) the petitioner cannot show cause and prejudice excusing
        the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc). The second prong of
this test requires that the state courts “actually enforce[]” the state procedural rule in
denying relief. Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir.1986)). In other words, “it is not sufficient that the
state court could have applied a procedural default under state law; it must actually have
done so.” Skipper v. French, 130 F.3d 603, 609 (4th Cir. 1997) (citing Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985)).

        In determining whether a state court actually enforced a procedural rule, we
apply the “plain statement” rule of Michigan v. Long, 463 U.S. 1032 (1983). See Harris,
489 U.S. at 263. Because a plain statement is required, “a procedural default does not
bar consideration of a federal claim on either direct or habeas review unless the last state
court rendering a judgment in the case ‘clearly and expressly’ states that its judgment
rests on the procedural bar.” Id.

        While the State now requests that we apply the procedural default doctrine to
Lovins’s Blakely claim, it does not and cannot argue that the last Court of Criminal
Appeals decision “clearly and expressly” denied postconviction relief to Lovins based
on a state procedural bar. The final Court of Criminal Appeals decision contains no
express discussion of waiver, procedural default, or of any specific Tennessee procedural
rule.

        The decision’s treatment of the Blakely claim consisted entirely of two
statements. First, the decision acknowledged that the United States Supreme Court had
rejected the argument that Tennessee’s sentencing procedures did not violate Blakely.
Second, the decision stated:

        In the present case, Petitioner raised the issue in a collateral attack. This
        Court has previously held that retrospective application of the rule
No. 11-5545         Lovins v. Parker                                                Page 15


        announced in Blakely is not applicable to cases on collateral review. Roy
        Allen Burch v. State, No. E2004-02365-CCA-R3-PC, 2005 WL 1584379,
        *2 (Tenn. Crim. App. July 7, 2005) (no Tenn. R. APP. P. 11 application
        fi l e d ) ( c i t i n g I s aac Lydell Herron v . St at e, No.
        W2004-02533-CCA-R28-PC (Tenn. Crim. App. Nov. 22, 2004)).
        Petitioner is not entitled to relief on this issue.

Lovins II, 2007 WL 2700097, at *12. In neither of the two Tennessee state court cases
cited here, Burch and Herron, was the question of procedural default relevant. In fact,
those cases applied federal, rather than state, retroactivity rules. See Herron v. State, No.
W2004-02533-CCA-R28-PC, 2004 Tenn. Crim. App. LEXIS 1181 (Tenn. Crim. App.
Nov. 22, 2004). The reference to the retroactivity doctrine, and the citation to these
cases, therefore, cannot be read as “clearly and unambiguously” invoking a state
procedural bar.

        In sum, Lovins exhausted his Blakely claim by raising it in his petition for
postconviction relief and related appeals, and the last reasoned judgment in state court
ignored the question of procedural default. Accordingly, because the Tennessee state
courts did not “actually enforce” a state procedural rule in denying Lovins relief, the
procedural default doctrine does not bar federal habeas review of the merits of Lovins’s
Blakely claim.

        2. Retroactivity and the merits

        Having concluded that the Tennessee state courts did not deny relief to Lovins
based on the invocation of a state procedural rule, we now must consider what the state
courts did instead—and whether and how to apply AEDPA’s standard of review.

        The parties agree that the last reasoned state-court opinion on Lovins’s Blakely
claim was the Court of Criminal Appeals decision denying postconviction relief, dated
September 14, 2007. That decision denied relief on the Blakely claim because the court
determined that Blakely was not retroactively applicable to Lovins’s case. The question
of whether a specific rule of law applies retroactively to a case is a natural part of a
decision “on the merits” of a claim. See Greene, 132 S. Ct. at 44 (describing the
retroactivity rules that apply to the merits of habeas claims). When deciding the merits
No. 11-5545           Lovins v. Parker                                                        Page 16


of a claim, courts generally consider (1) what law applies to the dispute, and (2) how the
relevant law applies to the specific facts of the dispute. Whether a Supreme Court
decision applies retroactively to a dispute fits comfortably within the first half of this
inquiry.

         In the federal habeas context, however, the statutory AEDPA standard for
reviewing a decision on the merits adds a layer of complexity to this analysis. The
Supreme Court has recently clarified that federal habeas courts should treat the
judicially-created Teague bar to retroactivity and the decision of whether a rule was
“clearly established” for the purposes of AEDPA review on the merits as “distinct”
inquiries. Greene, 132 S. Ct. at 44 (quoting Horn v. Banks, 536 U.S. 266, 272 (2002)).
“[N]either abrogates or qualifies the other.” Id.

         To begin, therefore, we review the judicially-created law of retroactivity as it
applies to federal constitutional rules of criminal procedure in federal and state
proceedings—and consider whether this common law of retroactivity bars the
application of Blakely in Lovins’s case. We then turn to statutory AEDPA requirements,
under which we review “the last state-court adjudication on the merits” in Lovins’s case
and determine what Supreme Court rulings were applicable at that time, and whether the
state court applied the law in a contrary or unreasonable manner. Greene, 132 S. Ct. at
44–45.

                  a. Retroactivity in federal habeas proceedings

         In federal habeas proceedings, the retroactivity of a new rule of criminal
procedure is governed by the twin Supreme Court cases of Griffith v. Kentucky, 479 U.S.
314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).3 In 1987, the Court settled a long
debate about retroactivity by holding that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending on direct
review or not yet final.” Griffith, 479 U.S. at 326. Two years later, in Teague, the Court


         3
          “Although Teague was a plurality opinion that drew support from only four Members of the
Court, the Teague rule was affirmed and applied by a majority of the Court shortly thereafter.” Danforth
v. Minnesota, 552 U.S. 264, 266 n.1 (2008).
No. 11-5545         Lovins v. Parker                                              Page 17


laid down the modern rule of retroactivity for federal habeas proceedings: “[u]nless they
fall within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before the new
rules are announced.” Id. at 310 (plurality opinion). The Teague rule thus “prevents a
federal court from granting habeas corpus relief to a state prisoner based on a rule
announced after his conviction and sentence became final.” Danforth v. Minnesota,
552 U.S. 264, 281 (2008) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)).

         A federal court applies the Teague non-retroactivity rule by proceeding in three
steps:

         First, the court must ascertain the date on which the defendant’s
         conviction and sentence became final for Teague purposes. Second, the
         court must survey the legal landscape as it then existed, and determine
         whether a state court considering the defendant’s claim at the time his
         conviction became final would have felt compelled by existing precedent
         to conclude that the rule he seeks was required by the Constitution.
         Finally, even if the court determines that the defendant seeks the benefit
         of a new rule, the court must decide whether that rule falls within one of
         the two narrow exceptions to the nonretroactivity principle.

Caspari, 510 U.S. at 390 (citations and alterations omitted). In Lovins’s case, we do not
need to proceed to the third step of the Teague analysis because it is apparent from the
parties’ arguments about the first two steps that Teague does not bar consideration of
Lovins’s Blakely claim in this federal habeas proceeding.

         In the first step, we consider when Lovins’s conviction and sentence became
final. A defendant’s conviction is “final” for the purposes of Griffith and Teague when
the time elapses for filing a petition for writ of certiorari to the United States Supreme
Court from the state’s highest court’s denial of the defendant’s application for review
on direct appeal. See Danforth, 552 U.S. at 267 (citing Caspari, 510 U.S. at 390).
Lovins argues, and the State does not contest, that Lovins’s case became final on June
3, 2007, ninety days after the Tennessee Supreme Court denied his application for
permission to appeal on direct review. See Lovins Br. 20–23; State Br. 13.
No. 11-5545           Lovins v. Parker                                            Page 18


        The second prong of the test is dispositive in Lovins’s case. If Lovins’s direct
appeal became final nearly three years after the Supreme Court decided Blakely, then it
also became final four months after the Court decided Cunningham and three months
after the Court vacated the Tennessee Supreme Court’s ruling in Gomez I—in which the
Court plainly rejected the premise that Tennessee’s sentencing scheme did not violate
Blakely. Because Lovins’s direct appeal was still pending at this time, Griffith mandated
that all of these decisions be applied retroactively to his sentencing. The legal landscape
at the time Lovins’s direct appeal became final thus left nothing to the imagination. A
court considering Lovins’s claim “at the time his conviction became final would have
felt compelled by existing precedent to conclude that the rule he seeks was required by
the Constitution.” Caspari, 510 U.S. at 390.

        In other words, “Teague’s rule of non-retroactivity . . . applies only ‘to those
cases which have become final before the new rules are announced.’” United States v.
Becker, 502 F.3d 122, 129 (2d Cir. 2007) (emphasis added) (quoting Teague, 489 U.S.
at 310). Teague does not, as the State seems to suggest here, bar collateral relief for a
petitioner whose direct appeal became final after the date on which a new rule of
constitutional law was announced. See Whorton v. Bockting, 549 U.S. 406, 416 (2007)
(considering first whether respondent’s conviction had already become final on direct
review when Crawford was announced, and only proceeding to the rest of the Teague
analysis after determining that it had).

        To understand why the State’s preferred reading would be incorrect, one need
not look any further than Teague itself, where the Supreme Court expressly adopted the
view of retroactivity in collateral proceedings that Justice Harlan had advanced in a
series of dissents:

        Given the “broad scope of constitutional issues cognizable on habeas . . .
        [it is] sounder, in adjudicating habeas petitions, generally to apply the
        law prevailing at the time a conviction became final than it is to seek to
        dispose of the [habeas] cases on the basis of intervening changes in
        constitutional interpretation.”
No. 11-5545        Lovins v. Parker                                               Page 19


Teague, 489 U.S. at 306 (quoting Mackey v. United States, 401 U.S. 667, 689 (1971)
(Harlan, J. dissenting)). Justice Harlan envisioned that habeas courts would apply “the
law prevailing at the time a conviction became final,” id., and the Supreme Court in
Teague expressly adopted this understanding of retroactivity, id. at 310. (“[W]e now
adopt Justice Harlan’s view of retroactivity for cases on collateral review.”).

       As Justice Souter helpfully noted in Wright v. West, a post-Teague but pre-
AEDPA case, “[t]he crux of the analysis when Teague is invoked, then, is identification
of the rule on which the claim for habeas relief depends.” 505 U.S. 277, 311 (1992)
(Souter, J., concurring in the judgment). “To survive Teague, it must be ‘old’ enough
to have predated the finality of the prisoner’s conviction . . . .” Id. The consideration
of whether the rule at issue is “old” enough such that its application is not Teague-barred
begins with a bare review of the calendar and comparison of dates. In Lovins’s case, we
are not barred from considering Blakely in this collateral proceeding because Blakely
was announced before Lovins’s conviction became final.

               b. Retroactivity in state proceedings

       Whether and how the federal rules of retroactivity should be applied in state
proceedings are separate questions. The Supreme Court has clarified that Teague was
a rule that was “tailored to the unique context of federal habeas and therefore had no
bearing on whether States could provide broader relief in their own postconviction
proceedings than required by that opinion.” Danforth, 552 U.S. at 277. The language
of Griffith, meanwhile, leaves no question as to its applicability in state courts: new
federal rules of criminal procedure must be applied retroactively “to all cases, state or
federal, pending on direct review or not yet final.” Griffith, 479 U.S. at 326 (emphasis
added). The “[f]ailure to apply a newly declared constitutional rule to criminal cases
pending on direct review violates basic norms of constitutional adjudication.” Id. at 322.

       In Danforth, the Court acknowledged that it is appropriate for states to develop
their own “state law to govern retroactivity in state postconviction proceedings.”
552 U.S. at 289. But the opinion also reiterated the principle that a state’s authority to
make and enforce its own laws exists “as long as they do not infringe on federal
No. 11-5545        Lovins v. Parker                                               Page 20


constitutional guarantees.” Id. at 280. Because the Griffith retroactivity rule draws its
authority from the Constitution, it provides a retroactivity floor that governs the law
applicable on direct review. As a result, a state postconviction court determining what
law should have been applied on direct review may afford greater retroactivity than
Griffith requires (or that Teague allows), but no less. In the criminal context, as in the
civil context, federal law “sets certain minimum requirements that States must meet but
may exceed in providing appropriate relief.” Danforth, 552 U.S. at 288 (quoting Am.
Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 178–79 (1990)).

       In the wake of Danforth and Greene, we are left to consider what standard of
review to give to state-court retroactivity determinations. Prior to those two cases, we
held that federal habeas courts should review state Teague inquiries under the deferential
§2254(d) standards accorded to determinations on the merits. See Henley v. Bell,
487 F.3d 379, 385 (6th Cir. 2007) (noting AEDPA deference would apply to a state
court’s determination of retroactivity). Both parties in this case assume that §2254(d)
should continue to apply to those determinations, and we agree—at least to the extent
that the state-court determination appears to depend on an interpretation of Griffith or
Teague, as opposed to an independent and more forgiving state-law retroactivity
standard.

               c. The Tennessee Court of Criminal Appeals decision

       We turn now to the last reasoned state-court decision in Lovins’s case—the
September 14, 2007 postconviction decision of the Court of Criminal Appeals. As the
basis for the conclusion that Blakely did not apply retroactively in Lovins’s case, the
decision cited a prior unpublished opinion of that court, Burch, 2005 WL 1584379, at
*2, for the core retroactivity rule—and specifically cited to Burch’s reference to another
unpublished case, Herron, 2004 Tenn. Crim. App. LEXIS 1181. To understand the
reasoning of the court’s decision in Lovins’s case, therefore, we look to the retroactivity
reasoning in Herron.

       In Herron, which pre-dated any consideration of Blakely by the Tennessee
Supreme Court, the petitioner had filed a motion to re-open a request for state
No. 11-5545          Lovins v. Parker                                             Page 21


postconviction relief after Blakely was published. This motion came almost twenty years
after the petitioner’s conviction had become final.           While the Herron court
acknowledged that Tennessee has created a separate retroactivity determination for state
constitutional rules, Herron, 2004 Tenn. Crim. App. LEXIS 1181, at *13 n.6, the court
identified Griffith and Teague as governing the retroactivity analysis with regard to the
federal constitutional rule announced in Blakely, id. at *12–13. Because Herron’s case
was no longer pending on direct review at the time Blakely was announced, Griffith did
not mandate the retroactive application of Blakely. Thus, after determining that the rule
in Blakely did not fit into either of the two narrow Teague exceptions, the Herron court
concluded that Blakely was not retroactively applicable to the petitioner’s case on
collateral review.

       We find no fault with the analysis in Herron, but we do find fault with how the
Court of Criminal Appeals applied that analysis in Lovins’s case. The factual distinction
between the two cases causes the Griffith/Teague analysis articulated in Herron to
produce a different result for Lovins. When Blakely was decided, Lovins’s case was not
yet final, but Herron’s conviction had been final for decades. Unlike Herron’s claim,
Lovins’s Blakely claim is therefore available under Griffith and not barred by Teague.
By holding otherwise, the Court of Criminal Appeals misconstrued the federal Teague
standard and infringed the federal constitutional Griffith guarantee.

       In denying federal habeas relief to Lovins, the district court made a similar
mistake. The district court cited our decision in Humphress v. United States, 398 F.3d
855, 860 (6th Cir. 2005), for the proposition that ‘Blakely is not retroactively applicable
to cases on collateral review.’ In Humphress, however, we followed the three-step
Teague analysis elaborated above. 398 F.3d at 860. Humphress’s conviction had
become final in January 2000, several months prior to Apprendi, over four years prior
to Blakely, and five years prior to the Booker decision extending Blakely to the federal
sentencing guidelines. To determine whether the rule in Blakely/Booker was “new,” the
Humphress panel then surveyed the legal landscape as of January 2000 to see if the rule
was “dictated by precedent” at that time and concluded correctly that it was not. Id. at
No. 11-5545         Lovins v. Parker                                               Page 22


860–61. Of course, the outcome of this second prong of the Teague analysis is entirely
different where—as in Lovins’s case—a Supreme Court decision has resolved the
precise legal question at issue prior to the date at which the defendant’s direct review
became final. In such a case, barring some relevant factual distinction, there is no
question that the rule is “dictated by precedent.”

        In applying the deferential § 2254(d) standard of review here, we consider the
rulings of the United States Supreme Court in place at the time of “the last state-court
adjudication on the merits.” Greene, 132 S. Ct. at 44. We therefore consider Supreme
Court jurisprudence as it existed on September 14, 2007, the date the Court of Criminal
Appeals decided Lovins’s case. As of that date, Blakely had been decided, Cunningham
had been decided, and the United States Supreme Court had vacated the Gomez I
decision in which the Tennessee Supreme Court had held that its sentencing regime
satisfied Blakely. Thus, when the Court of Criminal Appeals rendered the last reasoned
state-court decision in 2007, there is no question (and the State does not contest) that
Blakely was clearly established federal law.

        While the AEDPA standard of review is a high bar, the application of the
Griffith/Teague retroactivity analysis here does not indicate that courts could reasonably
come to different conclusions. Like Blakely, Griffith was clearly established federal law
at the time of the decision by the Court of Criminal Appeals. See Williams, 529 U.S. at
412 (explaining that “‘clearly established Federal law’ in § 2254(d)(1) ‘refers to the
holdings . . . of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision”). And considering whether Griffith required retroactive application of Blakely
does not involve a multi-factor test; it involves only the calendar, which we use to
determine whether Lovins’s case became final before or after the Supreme Court’s
decision in Blakely. Neither the state courts, nor the State, nor the district court below
suggest that Lovins’s conviction became final—in the language of Griffith and
Teague—before the Blakely decision.         It was therefore both contrary to and an
unreasonable application of Griffith for the Tennessee Court of Criminal Appeals to
deny Lovins relief on the basis of non-retroactivity.
No. 11-5545        Lovins v. Parker                                               Page 23


               d. Remedies

       Retroactivity concerns aside, the State does not contest that the judicial
factfinding in Lovins’s sentencing was unconstitutional under Blakely. The Court of
Criminal Appeals acknowledged as much in its decision denying postconviction relief
to Lovins, and the Tennessee Supreme Court confirmed this conclusion in Gomez II,
239 S.W.3d at 740. The Tennessee sentencing statute wrongly allowed “a presumptive
sentence”—in Lovins’s case, twenty years—“to be enhanced based on judicially
determined fact.” Id. Because the statute “permitted enhancement based on judicially
determined facts other than the fact of a prior conviction, it violated the Sixth
Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and
Cunningham.” Id.

       Of course, the determination that the Court of Criminal Appeals unreasonably
applied Griffith and Teague—and therefore that Blakely applies retroactively in this
case—does not alone mandate relief for Lovins. As the Supreme Court recently
clarified, “retroactivity jurisprudence is concerned with whether, as a categorical matter,
a new rule is available on direct review as a potential ground for relief.” Davis v. United
States, 131 S. Ct. 2419, 2430 (2011). “Retroactive application under Griffith lifts what
would otherwise be a categorical bar to obtaining redress for a government’s violation
of a newly announced constitutional rule.” Id. (citing Danforth, 552 U.S. at 271).
“Retroactive application does not, however, determine what ‘appropriate remedy’ (if
any) the defendant should obtain.” Id.

       While the question of whether a constitutional violation occurred in a § 2254
case is a “pure question of federal law,” the “availability or nonavailability of remedies”
is a “mixed question of state and federal law.” Danforth, 552 U.S. at 291 (quoting Am.
Trucking, 496 U.S. at 205 (Stevens, J. dissenting)). Thus, the retroactive application of
a new rule is generally “subject . . . to established principles of waiver, harmless error,
and the like.” Shea v. Louisiana, 470 U.S. 51, 58 n.4 (1985) (applying pre-Griffith
retroactivity doctrine); see also United States v. Booker, 543 U.S. 220, 268 (2005)
(noting Blakely would be applicable to all federal sentencing guidelines cases pending
No. 11-5545          Lovins v. Parker                                             Page 24


on direct review, but “expect[ing] reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was raised below and whether it
fails the ‘plain-error’ test”).

        Similarly, the determination that a new rule of constitutional law is retroactively
available does not limit a state court from invoking procedural default based on state
procedural rules. It follows that the outcome in Lovins’s case would be very different
if the Court of Criminal Appeals had denied relief to Lovins because he had failed to
raise an Apprendi claim on direct appeal and could not meet a state-law “cause and
prejudice” procedural default standard. As discussed above, though, our procedural
default doctrine leaves the determination of state procedural issues to the state courts to
decide. And the fact that a state court “could have” applied a state procedural rule to bar
review of the merits of a claim is only relevant where a petitioner never properly
exhausted his claims in state court—which is not the case here. See supra Part III.A.1.

        Harmless error, however, here is a federal-law question. In determining the
proper remedy for a Blakely error, we ordinarily consider whether the error was
harmless. See Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529, 536 (6th Cir.
2010). In Villagarcia, we adopted the “more ‘state-friendly standard’” of Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993), for determining harmless error in cases
“involving collateral review of state-court decisions.” Villagarcia, 599 F.3d at 536–37
(citing Hereford v. Warren, 536 F.3d 523, 532–33 (6th Cir. 2008)). Under that standard,
“an error is considered not harmless when ‘the matter is so evenly balanced that the
habeas court has grave doubt as to the harmlessness of the error.’” Id. at 537 (quoting
Hereford, 536 F.3d at 533).

        Like procedural default, the harmless error defense can be waived. See United
States v. Johnson, 467 F.3d 559, 564 (6th Cir. 2006) (finding the government waived the
harmless error defense because it provided only a “perfunctory discussion” in its
briefing, without any relevant case law). Here, the State did not argue harmless error
before the district court and did not argue it in briefing this appeal. While the State did
contend at oral argument that the error was harmless, we “need not reward
No. 11-5545         Lovins v. Parker                                                Page 25


quick-thinking counsel by entertaining grounds brought to [the court’s] attention for the
first time at oral argument.” Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 714
(6th Cir. 2001).

        The State’s waiver is of no consequence, however, because the Blakely error was
not harmless. The Tennessee trial judge enhanced Lovins’s sentence on the basis of the
judge’s finding of four aggravating factors: that Lovins (1) had a history of criminal
convictions or behavior, (2) had a history of unwillingness to comply with conditions of
release, (3) possessed a firearm during the commission of his offense, and (4) showed
no hesitation about committing a crime with a high risk to human life. Of these four,
only the existence of prior criminal convictions and the possession of the firearm could
possibly be considered to be facts found by a jury beyond a reasonable doubt. And, with
regard to the criminal-history factor, the judge noted that it was “not a lengthy criminal
history,” suggesting that this factor was not important in determining the sentence.

        A finding that the error was not harmless in this case is supported by Villagarcia,
in which we recognized that the sentencing court could end up exercising more
discretion on remand than it had the first time around. Nonetheless, we still concluded
there that “we simply cannot know whether the sentencing judge would accord the
relevant factors the same weight when reassessing the matter outside the dictates of the
severed provisions.” 599 F.3d at 539. Such a finding is also supported by Gomez II, in
which the Tennessee Supreme Court reviewed the judicial factfinding of only two
factors—a previous history of criminal convictions or behavior and a finding that Gomez
had been a “leader” in the commission of the offense. 239 S.W.3d at 736. On
application of the plain error standard, the Tennessee Supreme Court found that this
judicial factfinding had “adversely affected” a substantial right of the accused, id. at 741,
and that consideration of the error was “necessary to do substantial justice,” id. at 742.
In sum, even had the State not waived the argument in Lovins’s case, we would conclude
that the Blakely sentencing error was not harmless.

        Having considered the procedural default doctrine, Teague nonretroactivity, the
deferential AEDPA standard of review on the merits, and the harmless error doctrine,
No. 11-5545         Lovins v. Parker                                               Page 26


we are constrained to conclude that the judicial factfinding in Lovins’s sentencing was
unconstitutional and that the remedy Lovins requests is due. We need not instruct the
State how to provide this remedy, only that the remedy must either result in a reduction
of Lovins’s sentence from twenty-three to twenty years, or in resentencing under a
procedure that does not violate the Sixth Amendment. We afford the State 180 days
from the date of this order to initiate the necessary proceedings.

B. Trial error claims

        In addition to his sentencing claim, Lovins also levies two claims of trial error
for which he requests habeas relief. Both claims fail.

        Lovins alleges the prosecution violated his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose the existence of physical
evidence—the ammunition and work glove found in his car—until the evidence was
presented at trial. Prejudice, or “materiality,” is “an essential element” of a Brady claim,
Smith v. Mitchell, 348 F.3d 177, 212 (6th Cir. 2003), and because the physical evidence
was eventually presented at Lovins’s trial, we consider only the prejudice caused by the
delay in making the items available to Lovins. The claim fails because Lovins cannot
show prejudice from the delay.

        Lovins suggests that, with more time, he could have disputed that the gloves and
the ammunition were his. But, given that Lovins admitted the .357 firearm belonged to
him and that he had used it in the shooting, it is not clear how Lovins could have
successfully argued that the .357 rounds were not his, or even why that would help him.
As for the glove, Lovins suggests that with more time for preparation he may have been
able to determine that the glove did not fit him. But, even if the glove did not fit, it is
not clear how that would have been exculpatory. Lovins was accompanied in his car by
four other individuals; to the extent that the glove belonged to one of them, it would no
less suggest that Lovins and his friends had anticipated a violent conflict than if the
glove belonged to Lovins. And, though Lovins testified during his postconviction
hearing that the glove had a big impact on the jury, neither the prosecution nor defense
discussed the glove before or after it was introduced into evidence.
No. 11-5545          Lovins v. Parker                                             Page 27


        Under these circumstances, the fact that the State may have failed to disclose the
existence of the glove and the ammunition to Lovins prior to the trial can hardly be
considered to have materially prejudiced Lovins’s defense. See O’Hara v. Brigano,
499 F.3d 492, 502 (6th Cir. 2007) (noting evidence is material “only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different”). As no Brady violation is apparent even on
de novo review, the district court was correct to deny relief on Lovins’s Brady claim.

        Lovins’s second argument of trial error is that the suppression of part of Kim
Floyd’s testimony amounted to a violation of the right of an accused to present witnesses
in his own defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Lovins
acknowledges that he procedurally defaulted this claim by failing to raise it on direct
appeal, but he argues that the default is excused by his showing of ineffective assistance
of counsel. The Court of Criminal Appeals considered this argument and rejected it, and
the district court agreed.

        We agree with the Court of Criminal Appeals that defense counsel’s approach
to Floyd’s testimony cannot be considered to be “anything other than reasonable
appellate strategy.” Lovins II, 2007 WL 2700097, at *10. As an initial matter, the trial
court allowed testimony from Floyd and Lovins from which the jury could infer that
Floyd blamed Burnett for the death of her child and that Lovins had been aware of this
before he shot Burnett. In addition, there was already extensive evidence from other
witnesses as to Burnett’s violent tendencies and as to Lovins’s awareness of them, so we
cannot conclude that any additional testimony from Floyd would have made a difference
in the outcome of the trial. Lovins cannot show actual prejudice from any failure on his
counsel’s part, and he thus cannot overcome his procedural default. See Nields v.
Bradshaw, 482 F.3d 442, 450 (6th Cir. 2007) (“To excuse [a procedural] default for the
purpose of habeas review, [the petitioner] must establish both ‘cause’ and ‘prejudice.’”).
The district court was therefore correct to deny relief on Lovins’s claim of error as to
Floyd’s testimony.
No. 11-5545        Lovins v. Parker                                              Page 28


                                IV. CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s denial of relief
on all of Lovins’s claims of trial error and DENY his request for a new trial.

       We REVERSE the district court’s denial of habeas corpus as to Lovins’s Blakely
claim, and conditionally GRANT a writ of habeas corpus unless the State initiates
proceedings within 180 days of this order to either (1) reset Lovins’s sentence to the
presumptive statutory sentence of twenty years, or (2) provide Lovins a new sentencing
hearing under a sentencing procedure that satisfies the Sixth Amendment right to trial
by jury.
