                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0048n.06

                                            No. 08-3795                                   FILED
                                                                                      Jan 26, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


TERRENCE WILSON,                                          )
                                                          )
        Petitioner-Appellant,                             )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE SOUTHERN
                                                          )        DISTRICT OF OHIO
TIMOTHY BRUNSMAN, Warden,                                 )
                                                          )
        Respondent-Appellee.                              )
                                                          )


BEFORE: KENNEDY, COLE, and GRIFFIN, Circuit Judges.

        GRIFFIN, Circuit Judge.

        Petitioner Terrence Wilson, an Ohio prisoner proceeding pro se, appeals the district court’s

denial of his petition for a writ of habeas corpus on the grounds of procedural default. The district

court granted a certificate of appealability (“COA”) on Wilson’s seventh claim, specifically, whether

the trial court’s factual findings, which permitted the imposition of consecutive sentences under Ohio

Rev. Code § 2929.14 (2004), violated Blakely v. Washington, 542 U.S. 296 (2004). After careful

consideration of the record, we affirm the district court’s denial of Wilson’s 28 U.S.C. § 2254

petition.

                                                  I.

        In January 2005, an Ohio jury convicted Wilson of eleven counts of forcible rape of a child

less than thirteen years of age in violation of Ohio Rev. Code § 2907.02(A)(1)(b) (Counts I-XI),
No. 08-3795
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twelve counts of forcible rape in violation of Ohio Rev. Code § 2907.02(A)(2) (Counts XII-XXIII),

and one count of possession of crack cocaine equaling or exceeding one gram but less than five

grams, in violation of Ohio Rev. Code § 2925.11(A) (Count XXIV). Wilson’s victim was his long-

term girlfriend’s daughter, P.M., whom he raised from infancy. Wilson lived with P.M. and her

mother for sixteen years, acted as the “father of the family[,]” and was the biological father of three

of P.M.’s younger half-siblings.

       The state trial court sentenced Wilson to life imprisonment for the rapes charged in Counts

I-XI, three years of imprisonment for the rapes charged in Counts XII-XXI, ten years of

imprisonment for the rapes charged in Counts XXII and XXIII, and six months of imprisonment for

his possession of crack cocaine charged in Count XXIV. The trial court further ordered Wilson to

serve Counts XXII and XXIII consecutive to each other and to his other sentences, resulting in an

aggregate sentence of life imprisonment plus twenty years. At the sentencing hearing, the trial court

stated its reasons for imposing consecutive sentences:

       Further, sir, I am going to find that on Counts XXII and XXIII, sir, that you
       committed the worst form of the offense, and that you pose the greatest likelihood of
       [] committing future crime . . . this abuse continued for a period of between six and
       seven years. The last two offenses, sir, for which the Jury found you Guilty, there
       was evidence that [] those occasions [] were penile rape sir. And . . . [because] she
       was in a position of being your daughter, [] that you committed the worst form of
       those offenses and the maximum sentence is appropriate.

                                                ***

       Sir, as I said, those consecutive sentences are necessary because . . . the harm caused
       by you, as a result thereof . . . was so great and so unusual that no single prison term
       could [] adequately reflect the seriousness of your conduct. I base that, sir, on the
       fact that this abuse occurred for between six and seven years, and was very

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        consistent; that the victim was, as I said, in a position of your daughter; and that –
        because it occurred for such a lengthy period of time, that [there] . . . [is] a need, sir,
        to protect the public from future crime by you.

        And, as I said, because this victim was in the position of your child, that that makes
        the offense much more serious, and no single prison term would reflect the
        seriousness of that offense.

        The Ohio Court of Appeals affirmed Wilson’s convictions and sentence on direct appeal.

State v. Wilson, No. 20910, 2005 WL 3446275, at *1 (Ohio Ct. App. Dec. 16, 2005) (unpublished).

Specifically, Wilson argued that his sentence violated Blakely because § 2929.14 created a

presumption of concurrent terms of imprisonment and authorized impermissible judicial fact-finding

to overcome that presumption. Ohio Rev. Code §§ 2929.14(B), (E)(4) (2004) (abrogated by State

v. Foster, 845 N.E.2d 470 (Ohio 2006).1 The appellate court ruled that Wilson forfeited this

argument by failing to raise it with the trial court after it pronounced his sentence. Id. at *9. Wilson




        1
         Consistent with Ohio’s sentencing laws at the time, the trial court was required to “impose
the shortest prison term authorized for” violations of § 2907.02 unless “[t]he court f[ound] on the
record that the shortest prison term w[ould] demean the seriousness of [Wilson’s] conduct or
w[ould] not adequately protect the public from future crime by [him].” Ohio Rev. Code §
2929.14(B) (2004). In addition, Ohio Rev. Code § 2929.14(E)(4)(b)-(c) (2004) allowed the
imposition of consecutive sentences if the trial court found that the “harm caused . . . was so great
or unusual that no single prison term . . . adequately reflects the seriousness of [Wilson’s] conduct”
and that “consecutive sentences [were] necessary to protect the public from future crime by [him].”
In State v. Foster, 845 N.E.2d 470 (Ohio 2006), the Supreme Court of Ohio held that several
provisions of § 2929.14 were unconstitutional in light of Blakely because the statute created a
presumption of minimum or concurrent terms of imprisonment and required impermissible judicial
fact-finding to overcome that presumption. Foster, 845 N.E.2d at 497 (excising Ohio Rev. Code §§
2929.14(B), 2929.19(B)(2), 2929.41, 2929.14(C), 2929.14(E)(4), 2953.08(G), and 2929.14(D)(2)(b)
in light of Blakely). In Blakely, the Supreme Court held that under the Sixth Amendment it is
“within the jury’s province to determine any fact (other than the existence of a prior conviction) that
increases the maximum punishment authorized for a particular offense.” Oregon v. Ice, 129 S. Ct.
711, 714 (2009) (citing Blakely, 542 U.S. 296 (2004)).
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did not timely appeal this decision to the Supreme Court of Ohio, which later denied his motion for

leave to file a delayed appeal. State v. Wilson, 855 N.E.2d 495 (Ohio 2006) (table decision).

       In May 2006, Wilson filed a petition for post-conviction relief with the Montgomery County

Court of Common Pleas. In it, Wilson argued that he was entitled to a resentencing under State v.

Foster, 845 N.E.2d 470 (Ohio 2006), a Supreme Court of Ohio decision that excised certain

provisions of § 2929.14 as unconstitutional under Blakely. Foster, 845 N.E.2d at 490-94, 497; see

supra n.1. The trial court denied Wilson’s petition as untimely because he filed it more than 180

days after the date that his trial transcript was docketed in his direct appeal. See Ohio Rev. Code §

2953.21(A)(2). Nonetheless, in its decision, the trial court noted that Foster was not retroactively

available to cases on collateral review.2

       The Ohio Court of Appeals affirmed the denial of Wilson’s petition for post-conviction relief.

State v. Wilson, No. 21741, 2007 WL 2568226, at *1 (Ohio Ct. App. Aug. 7, 2007) (unpublished).

In its decision, the court agreed that Wilson’s petition was untimely and that he failed to satisfy the

statutory requirements to bring an untimely petition pursuant to Ohio Rev. Code § 2953.23(A). In

addition, the appellate court stated the following:

       We have consistently held that Foster does not apply retroactively to those cases that
       were neither on direct appeal nor still pending in the trial court when Foster was
       decided. Because Wilson’s case was neither on direct appeal nor pending in the trial



       2
          Wilson cannot rely on Foster as a basis for post-conviction relief because his right to file
a direct appeal with the Supreme Court of Ohio expired on January 30, 2006, and the Foster decision
was decided on February 27, 2006. Specifically, the Ohio Court of Appeals issued its final decision
on December 16, 2005. Under Ohio S. Ct. Prac. R. 2, Wilson was required to file a notice of appeal
within forty-five days of that decision. See State v. Justice, 757 N.E.2d 380 (Ohio 2001) (table
decision).
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        court when Foster was decided, Foster’s holding is inapplicable to his case.
        Consequently, Wilson is not entitled to resentencing under Foster.

Wilson, 2007 WL 2568226, at *3.

        In April 2007, Wilson petitioned the Southern District of Ohio for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, asserting nine grounds for relief.3 The district court denied Wilson’s

petition, ruling that he had procedurally defaulted his federal constitutional claims by failing to file

a timely direct appeal with the Supreme Court of Ohio. See Bonilla v. Hurley, 370 F.3d 494, 497

(6th Cir. 2004) (holding that petitioner’s failure to file a timely appeal with the Supreme Court of

Ohio and denial of a motion for leave to file a delayed appeal resulted in a procedural default of

federal constitutional claims).

        Wilson moved the district court for a COA under 28 U.S.C. § 2253(c) regarding his seventh

claim, to wit, whether the trial court violated his Sixth Amendment right to a jury trial under Blakely

by engaging in impermissible judicial fact-finding to overcome § 2929.14’s presumption in favor

of concurrent sentences. Wilson argued that the procedural default bar was inapplicable to his

seventh claim because the state trial court lacked subject-matter jurisdiction to impose his sentence

under State v. Cimpritz, 110 N.E.2d 416 (Ohio 1953) and State v. Colon, 885 N.E.2d 917 (Ohio

2008). According to Wilson, the holdings in Cimpritz and Colon, when viewed together, stand for

the proposition that a Blakely error results in a defective indictment that strips the trial court of its

subject-matter jurisdiction and, therefore, a Blakely error may be asserted for the first time on direct

appeal or in a collateral proceeding. See Cimpritz, 110 N.E.2d at 416; Colon, 885 N.E.2d at 926.


        3
        The parties consented to the petition’s disposition before a United States Magistrate Judge.
See 28 U.S.C. § 636(c).
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The district court granted Wilson’s COA, ruling that “reasonable jurists” could “debat[e]” whether

the holdings in Colon and Cimpritz prohibited forfeiture of Wilson’s alleged Blakely error, despite

his failure to raise it with the sentencing court. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Respondent moved the district court to reconsider its grant of the COA. The district court denied

the motion, despite its “continu[ed] [] belie[f] that the asserted Blakely error . . . was procedurally

defaulted in the Ohio courts . . . .”

        This appeal followed.

                                                  II.

        In the usual course, we would first address Wilson’s challenge to the district court’s

procedural-default ruling. In the present case, however, the substance of Wilson’s Blakely claim

presents a more straightforward basis for our decision, counseling us to consider the merits of his

claim at the outset. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (allowing federal courts

to address the merits of a habeas claim if it is “easily resolvable against the habeas petitioner,

whereas the procedural-bar issue involve[s] complicated issues of state law.”).

        It is well-settled law that 28 U.S.C. § 2254 confers a limited role upon federal courts: to

ensure that a person does not remain in state custody because of violations of the United States

Constitution or its laws and treaties. See Barefoot v. Estelle, 463 U.S. 880, 887-88 (1983). Unless

the defendant’s custodial status exists by reason of a violation of the federal constitution or laws or

treaties, federal courts must yield to the state judicial process. Id. Thus, before granting a writ of

habeas corpus to a petitioner whose state custody resulted from a criminal conviction, we must first

determine whether the petitioner’s asserted claim violates his federal rights. Id. In other words, we


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may only grant a § 2254 petition for a violation of federal law – not a state court’s contrary

interpretation of federal law or an alleged violation of state law. Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (“reemphasiz[ing] that . . . . a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.”).

       In the present case, the district court granted a limited COA based upon Wilson’s seventh

ground for relief:

       Ground Seven: The trial court erred in imposing a consecutive sentence through
       findings not made by a jury beyond a reasonable doubt.

       Supporting Facts: Appellant had the right to have a jury determine the sentence
       enhancement factors beyond the statutory maximum.

Thus, our review is limited to whether the state trial court’s judicial fact-finding under Ohio Rev.

Code § 2929.14, which permitted the imposition of consecutive rather than concurrent sentences,

violated Blakely. 28 U.S.C. § 2253(c)(3); Seymour v. Walker, 224 F.3d 542, 561 (6th Cir. 2000)

(appellate review is limited to issues certified in COA). Wilson’s habeas petition is governed by the

Antiterrorism and Effective Death Penalty Act, codified at 28 U.S.C. § 2254(d), which provides that

his application for a writ of habeas corpus:

       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 . . . 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).

       The Supreme Court has held that “clearly established law as determined by [the Supreme]

Court ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the

time of the relevant state-court decision.’” Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004)

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(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Thus, our inquiry under § 2254(d) looks

to “‘the governing legal principle or principles set forth by the Supreme Court at the time the state

court renders its decision.’” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).

       At the time of the state court decision in this case, the principle that the Sixth Amendment

requires jury determination of all facts necessary for the imposition of concurrent sentences was not

clearly established in federal law. To the contrary, as the Supreme Court has since held in Oregon

v. Ice, 129 S. Ct. 711 (2009), the Sixth Amendment does not require juries to perform this function

because a consecutive-sentencing decision is “a sentencing function in which the jury traditionally

played no part[.]” Id. at 714. Thus, the trial court’s sentencing of Wilson pursuant to Ohio Rev.

Code § 2929.14(E)(4) was not contrary to, nor an unreasonable application of, clearly established

federal law.

       Furthermore, while State v. Foster, 845 N.E.2d 470 (Ohio 2006), severed certain portions

of Ohio Rev. Code § 2929.14 as violative of the Sixth Amendment under Blakely – including subpart

(E)(4) – that decision was rooted in the Supreme Court of Ohio’s interpretation of Blakely. See

Foster, 845 N.E.2d at 497. Thus, we must reject Wilson’s argument that he is entitled to federal

habeas relief under Foster. It is undoubtably the province of the Supreme Court to “say what the law

is,” and that extends to its interpretation of the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803). Moreover, the Ice Court expressly acknowledged the Foster decision in footnote

seven of its opinion, noting that “[s]tate high courts [are] divided over whether the rule of Apprendi

governs consecutive sentencing decisions.” 129 S. Ct. at 716, n.7. The Supreme Court disagreed




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with Foster, and, for the purpose of our limited review under 28 U.S.C. § 2253(c)(3) and 28 U.S.C.

§ 2254(d), Ice controls Foster.4

       Our station is to assess Wilson’s seventh ground for relief to ensure that he does not remain

in state custody because of violations of the United States Constitution. See Barefoot, 463 U.S. at

887-88. Unless Wilson’s custodial status exists by reason of a violation of the federal constitution,

laws, or treaties, we must yield to the state judicial process. Id.

                                                  III.

       For these reasons, we affirm the district court’s judgment denying Wilson’s petition for a writ

of habeas corpus.




       4
         Intermediate Ohio appellate courts have not applied Ice’s holding to the Foster decision
because the Supreme Court of Ohio has not yet addressed the issue. See State v. Nieves, No.
08CA009500, 2009 WL 4547627, at *12 (Ohio Ct. App. Dec. 7, 2009) (holding that post-Ice, “[t]he
Supreme Court of Ohio has not reconsidered Foster [] and the case remains binding on this court.”);
State v. Mickens, No. 08AP-743, 2009 WL 1526918, at *5 (Ohio Ct. App. June 2, 2009); State v.
Russell, Nos. 09AP-428, 2009 WL 4650942, at *3 (Ohio Ct. App. Dec. 8, 2009) (same).
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