                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0535n.06

                                           No. 09-3484                                  FILED
                                                                                    Aug 20, 2010
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

KOREY L. BAKER,                                          )
                                                         )
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Southern
EDWIN C. VOORHIES, JR., Warden,                          )   District of Ohio
                                                         )
       Respondent-Appellee.                              )
                                                         )
                                                         )

Before: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*

       BOGGS, Circuit Judge. Korey Baker appeals the district court’s order denying his petition

for a writ of habeas corpus. His principal argument is that his state-court appellate counsel was

constitutionally ineffective for failing to challenge his sentence under Blakely v. Washington, 542

U.S. 296 (2004). Some four months after Baker’s conviction became final, in a sharp break with

state appellate precedent, the Ohio Supreme Court held that Ohio’s felony-sentencing statute did

indeed violate Blakely. See State v. Foster, 845 N.E.2d 470, 484 (Ohio 2006). However, we have

already held three times that an Ohio attorney was not ineffective for failing to anticipate the

outcome in Foster. See Henley v. Brunsman, No. 08-3288, 2010 WL 2181804 (6th Cir. June 2,

2010); Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285-86 (6th Cir. 2010); Benning




       *
           The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle
District of Tennessee, sitting by designation.
No. 09-3484
Baker v. Voorhies

v. Warden, Lebanon Corr. Inst., 345 F. App’x 149, 157 (6th Cir. 2009). Because the facts of this

case are not materially distinguishable, we affirm the district court’s denial of habeas relief.

                                         BACKGROUND

A. Baker’s Trial and Sentencing

       In September 2003, Baker shot and injured another individual in a confrontation. He was

subsequently convicted in Ohio state court of two felonies – attempted murder, see Ohio Rev. Code

§§2903.02, and felonious assault, see id. §2903.11, both with a firearm specification. At the time

of his sentencing in February 2004, Ohio’s then-controlling sentencing statute required the

sentencing judge to impose the statutory minimum sentence for any felony conviction “unless one

or more of the following applie[d]”:

       (1) The offender was serving a prison term at the time of the offense, or the offender
       previously had served a prison term.

       (2) The court finds on the record that the shortest prison term will demean the
       seriousness of the offender’s conduct or will not adequately protect the public from
       future crime by the offender or others.

Id. §2929.14(B) (2002); see also Foster, 845 N.E.2d at 490.

       The trial judge found on the record that the imposition of minimum sentences would demean

the seriousness of Baker’s conduct and would not adequately protect the public. Consequently, the

judge imposed non-minimum sentences of nine years for the attempted murder conviction and six

years for the felonious assault conviction, to run consecutively. With the addition of a mandatory

three-year term for the firearm specifications, Baker’s total sentence was eighteen years.




                                                 -2-
No. 09-3484
Baker v. Voorhies

B. Baker’s Direct Appeal

       Baker filed a notice of appeal with the Court of Appeals of Ohio, Second Appellate District

(“Second District”) in March 2004. On June 24, 2004 – just over two weeks before Baker filed his

appellate brief – the United States Supreme Court decided Blakely, which “appl[ied] the rule [the

Court had previously] expressed in Apprendi v. New Jersey[ 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.’” 542 U.S. at 301 (quoting

Apprendi, 530 U.S. 466, 490 (2000)) (internal citation omitted).

       Baker, through counsel, filed his appellate brief on July 9, 2004. In it, Baker did not

challenge his sentence under Blakely or Apprendi. Instead, he argued that his trial counsel had been

ineffective in various respects unrelated to sentencing: namely, by (1) failing to request a jury

instruction on the lesser included offense of aggravated assault, (2) calling a witness who

undermined Baker’s self-defense theory, and (3) not objecting to purported prosecutorial misconduct.

       In January 2005, the Second District affirmed Baker’s conviction and sentence, although it

agreed that “evidence presented at trial could have supported an instruction for aggravated assault”

and that the defense witness’s testimony “was not helpful to [Baker], particularly [his] claim that

[he] had acted in self defense.” Baker did not file a timely appeal to the Ohio Supreme Court, but

later filed a motion for delayed direct appeal, which was denied.

C. Baker’s Application to Reopen

       In February 2005, Baker, now acting pro se, filed an application to reopen his direct appeal

pursuant to Ohio Rule of Appellate Procedure 26(B). That rule provides that a criminal defendant,

                                               -3-
No. 09-3484
Baker v. Voorhies

within ninety days of an unfavorable appellate decision, “may apply [to the appellate court where

his appeal was decided] for reopening of the appeal from the judgment of conviction and sentence,

based on a claim of ineffective assistance of appellate counsel.” In his application, Baker argued that

his appellate counsel had provided ineffective assistance by failing to challenge his sentence under

Blakely.

       The Second District denied Baker’s application to reopen. In so doing, it apparently

misconstrued Baker’s claim that appellate counsel had been ineffective for failing to argue Blakely

on appeal as a claim that appellate counsel was ineffective for failing to argue that trial counsel had

been ineffective for failing to argue Blakely at the time of sentencing. Having thus misconstrued

Baker’s claim, the Second District concluded that trial counsel had not been not ineffective, and that

appellate counsel had therefore not been ineffective for failing argue trial counsel’s ineffectiveness.

Baker appealed to the Ohio Supreme Court, which dismissed his appeal in July 2005 as “not having

any substantial constitutional question.”

D. Baker’s Federal Habeas Petition

       On February 10, 2006, Baker filed a timely petition for a writ of habeas corpus in federal

district court pursuant to 28 U.S.C. § 2254. He argued that he was entitled to habeas relief because

(1) the imposition of a greater-than-minimum term of imprisonment on the basis of a judicial

determination that a minimum sentence would “demean the seriousness of [his] conduct” and




                                                 -4-
No. 09-3484
Baker v. Voorhies

“w[ould] not adequately protect the public” violated Blakely; and (2) his appellate counsel was

constitutionally ineffective for failing to raise this argument before the Second District.1

       The district court concluded that appellate counsel was not ineffective, since “at the time

Baker’s direct appeal was filed, . . . counsel had no reason to believe that a Blakely challenge would

be successful in Ohio and good reason to believe that [it] would not be successful . . . .” Baker v.

Voorhies, No. 3:06cv00045, slip op. at 6 (S.D. Ohio Mar. 12, 2009). The district court concluded

that Baker’s substantive Blakely claim was procedurally defaulted. Accordingly, it denied Baker’s

petition. Baker timely appealed.

                                    STANDARD OF REVIEW

       We review a district court’s habeas ruling de novo. Souter v. Jones, 395 F.3d 577, 584 (6th

Cir. 2005). Under the Antiterrorism and Effective Death Penalty Act, when a state court has

adjudicated a claim on the merits, a federal court may grant the writ only if the state-court

adjudication “(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). By contrast, when the state




       1
          Baker also asserted that the sentencing judge’s imposition of consecutive sentences based
on judge-found “facts” violated Blakely. However, on appeal, Baker has withdrawn this argument
as vitiated by the Supreme Court’s intervening decision in Oregon v. Ice, 129 S. Ct. 711 (2009),
which held that this practice does not violate the Sixth Amendment.


                                                 -5-
No. 09-3484
Baker v. Voorhies

court has not addressed the merits of a claim, a federal court reviews that claim de novo. Maples v.

Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

                                          DISCUSSION

A. Ineffective Assistance of Appellate Counsel

       We begin by addressing Baker’s assertion of ineffective assistance of appellate counsel,

which, if meritorious, would serve both as a free-standing ground for habeas relief and as an excuse

for any potential procedural default of Baker’s Blakely claim. Because the Second District

misconstrued Baker’s application to reopen, Baker’s ineffective-appellate-assistance claim has not

been adjudicated by a state court. We therefore review it de novo. Maples, 340 F.3d at 436-37.

       In a recent case involving a similar assertion of ineffective assistance for failure to raise a

Blakely claim, we explained the controlling standard as follows:

       Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
       requires that a defendant raising an ineffective-assistance claim show both that
       counsel performed deficiently and that the defendant was prejudiced by counsel’s
       deficient performance. Id. at 687-91. In order to demonstrate deficient performance,
       [the defendant] must show that his appellate counsel made an objectively
       unreasonable decision to raise other issues instead of raising a Blakely claim,
       “meaning that [the Blakely claim] ‘was clearly stronger than issues that counsel did
       present.’ ” See Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009) (quoting Smith
       v. Robbins, 528 U.S. 259, 285, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)).

       [The defendant] must also show prejudice, which in the appellate context means
       showing “a reasonable probability that, but for his counsel’s unreasonable failure to”
       raise a Blakely claim on appeal, “he would have prevailed.” See Robbins, 528 U.S.
       at 285, 120 S. Ct. 746. Furthermore, when reviewing the actions of appellate counsel,
       “[a] fair assessment of attorney performance requires that every effort be made to
       eliminate the distorting effects of hindsight, to reconstruct the circumstances of
       counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
       at the time.” Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 91 L. Ed. 2d 434
       (1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. 2052).

                                                -6-
No. 09-3484
Baker v. Voorhies

Thompson, 598 F.3d at 285-86 (second and fourth alterations in original). As we explain below,

Baker cannot satisfy either of Strickland’s requirements.

1. Sufficiency of Counsel’s Performance

       Because Strickland “requires this court to evaluate trial counsel’s performance ‘from

counsel’s perspective at the time of the alleged error and in light of all the circumstances,’” our

inquiry is whether it was constitutionally unreasonable “to fail to make a Blakely objection on [July

9, 2004], in Ohio’s [Second] District.” Benning , 345 F. App’x at 157. Three times already, a panel

of this court has rejected a habeas petitioner’s argument that his counsel’s failure to raise a Sixth

Amendment challenge to Ohio’s felony-sentencing statute during the period between Blakely and

Foster constituted ineffective performance. See Henley, 2010 WL 2181804; Thompson, 598 F.3d

281; Benning, 345 F. App’x 149.2 Baker, however, would have us reach a different result here.

       Admittedly, this case is superficially distinguishable from Henley, Thompson, and Benning

on the ground that Baker’s appeal was filed so soon after Blakely was issued. In that troika of cases,

we found that counsel were not ineffective in part because Ohio’s appellate courts had already

expressly rejected Blakely’s applicability to Ohio’s sentencing scheme at the time counsel failed to



       2
          We note for completeness’s sake that the Benning panel held that Benning’s appellate
counsel was ineffective for failing to raise a Blakely challenge to Ohio’s sentencing scheme, even
though trial counsel was not. 345 F. App’x at 158. However, this is because Benning’s appeal lay
in Ohio’s First District; as we will discuss further below, between Benning’s sentencing and his
appeal, the First District, alone among Ohio’s appellate courts, held that Ohio’s felony-sentencing
statute did indeed violate Blakely. Because no such decision existed in any district at the time
Baker’s appeal was filed, the ineffective-appellate-assistance branch of the Benning decision is not
on point. See Thompson, 598 F.3d at 287-88 (distinguishing Benning’s ineffective-appellate-
assistance holding and following its ineffective-trial-assistance holding).

                                                -7-
No. 09-3484
Baker v. Voorhies

assert a Blakely argument. In this case, by contrast, no Ohio court had issued an opinion on the

impact of Blakely at the relevant juncture.3 Nonetheless, we believe the same result we reached in

our prior cases is compelled here.

       Our survey of the law of which Baker’s counsel should have been aware begins in 2000,

when the United States Supreme Court decided Apprendi. That case involved a defendant who had

been convicted in New Jersey state court of a firearm offense punishable by no more than ten years

of imprisonment, but whose sentence had been increased to 12 years under a separate statute

providing for “an ‘extended term’ of imprisonment” if the trial judge “f[ound], by a preponderance

of the evidence, that ‘[t]he defendant . . . acted with a purpose to intimidate . . . because of

race . . . .’” 530 U.S. at 468-69 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000)). The

Court held that the sentence enhancement violated the Sixth Amendment, because “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum” – there, the purpose with which the defendant acted in committing the crime

– “must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 489.

       Thereafter, defendants in the Ohio state courts challenged Ohio’s felony-sentencing scheme

under Apprendi, arguing that it suffered from the same infirmities as the New Jersey statute. These

challenges, however, invariably failed – both in the Second District, see, e.g., State v. Adkins, No.

2002-CA-113, 2003 WL 1598421 (Ohio Ct. App. 2d Dist. Mar. 28, 2003); State v. Robinson, No.


       3
           It appears that the first Ohio appellate decision rejecting Blakely’s applicability to the
state’s sentencing scheme was issued the very day Baker filed his appeal. See State v. Bell, No.
C-030726, 2004 WL 1531904, at *5 (Ohio Ct. App. 1st Dist. July 9, 2004). We assume arguendo
that Baker’s appellate counsel was justifiably unaware of it.

                                                -8-
No. 09-3484
Baker v. Voorhies

18870, 2002 WL 191650 (Ohio Ct. App. 2d Dist. Feb. 8, 2002); State v. Brown, No. 18643, 2002

WL 91088 (Ohio Ct. App. 2d Dist. Jan. 25, 2002); State v. Gambrel, No. 2000-CA-29, 2001 WL

85793 (Ohio Ct. App. 2d Dist. Feb. 2, 2001), and elsewhere.4 Typical of these decisions is State v.

Gambrel, in which the Second District held that Apprendi did not apply to Ohio’s scheme because,

among other things, the judicial assessment that a certain sentence would or would not “adequately

reflect[] the seriousness of the offender’s conduct” is merely a discretionary judgment of the type

“courts typically consider when making sentencing decisions,” rather than a bona fide “‘factual’

determination[]” such as the determination of the defendant’s motive in Apprendi. 2001 WL 85793,

at *5-6.

       On June 24, 2004, the United States Supreme Court decided Blakely, which, in its own

words, “require[d the Court] to apply the rule [it had already] expressed in Apprendi . . . .” 542 U.S.

at 301. Blakely had been convicted of second-degree kidnaping with a firearm, for which a

Washington statute prescribed a “standard range” of imprisonment of 49-53 months; the judge,

however, had increased Blakely’s sentence to 90 months under a provision of the same statute

allowing an “exceptional sentence” of up to 10 years upon a judicial determination that the offense

had been committed with “deliberate cruelty.” Id. at 299-300. Before the Supreme Court,



       4
        See, e.g., State v. Elkins, 773 N.E.2d 593 (Ohio Ct. App. 10th Dist. 2002); State v. Huntley,
No. 02-CA-15, 2002 WL 31769238 (Ohio Ct. App. 4th Dist. Dec. 9, 2002); State v. Wilson, No.
L-01-1196, 2002 WL 31420758 (Ohio Ct. App. 6th Dist. Oct. 25, 2002); State v. Seese, Nos. 01-CA-
007852, 01-CA-007889, 2002 WL 701933 (Ohio Ct. App. 9th Dist. Apr. 24, 2002); State v. McCoy,
Nos. C-000659, C-000660, 2001 WL 1386196 (Ohio Ct. App. 1st Dist. Nov. 9, 2001); State v. Neal,
No. 2001-CA-00067, 2001 WL 1771034 (Ohio Ct App. 5th Dist. Aug. 13, 2001); State v. Gaddis,
No. 78764, 2001 WL 898425 (Ohio Ct. App. 8th Dist. Aug. 2, 2001).

                                                 -9-
No. 09-3484
Baker v. Voorhies

Washington “contend[ed] that there was no Apprendi violation because the relevant ‘statutory

maximum’ [was] not 53 months, [i.e., the top of the ‘standard range,’] but the 10-year maximum”

which, by statute, “no exceptional sentence [could] exceed . . . .” Id. at 303. The Court rejected that

argument as “clear[ly]” foreclosed by its precedents, which specified that “the ‘statutory maximum’

for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Ibid. (citing Ring v. Arizona, 536 U.S.

584, 602 (2002); Harris v. United States, 536 U.S. 545, 563 (2002); Apprendi, 530 U.S. at 488).

         Just over two weeks later, Baker filed his appellate brief in the Second District. Because we

must assess the adequacy of Baker’s counsel’s performance based on “counsel’s perspective at the

time,” Strickland, 466 U.S. at 689, rather than “in the harsh light of hindsight,” Bell v. Cone, 535

U.S. 685, 702 (2002), subsequent legal developments are relevant only if those developments were

“clearly foreshadowed by existing decisions,” Thompson, 598 F.3d at 288 (quoting Lucas v. O’Dea,

179 F.3d 412, 420 (6th Cir. 1999)) (emphasis added). Outside of this narrow exception, “counsel

is not ineffective for failing to predict the development of the law.” Ibid. (collecting cases); see also

Alcorn v. Smith, 781 F.2d 58, 62 (6th Cir. 1986) (stating that “nonegregious errors such as failure

to perceive or anticipate a change in the law . . . generally cannot be considered ineffective assistance

of counsel”).

         In this case, while the Ohio Supreme Court eventually found in Foster that the state’s

sentencing statute violated Blakely, this outcome was far from “clearly foreshadowed.”5 We may


         5
             Foster was decided in February 2006, about four months after Baker’s conviction became
final.

                                                 - 10 -
No. 09-3484
Baker v. Voorhies

presume that Baker’s appellate counsel was aware of the wealth of Ohio appellate-court precedent

discussed above – including multiple cases in the Second District – unanimously holding that Ohio’s

sentencing scheme passed muster under Apprendi. Further, we conclude that a competent counsel

aware of those precedents could have read the newly released Blakely decision and concluded that

it did nothing to undermine the Ohio courts’ pre-Blakely precedent. The Blakely Court, after all,

stated that it was merely “apply[ing] the rule [the Court had already] expressed in Apprendi.”

Blakely, 542 U.S. at 301; see also id. at 303 (stating that “[o]ur precedents make clear” the proper

definition of the term “statutory maximum” (emphasis added)). In fact, Baker effectively concedes

as much when he acknowledges that “even if Apprendi constituted a new rule of law, Blakely did

not.” Appellant’s Br. at 14-15. Thus, there was very little (if anything) in the Blakely decision itself

to suggest that a Sixth Amendment challenge to Ohio’s felony-sentencing statute would be any less

futile after that decision was handed down than it would have been before.                 Under such

circumstances, we cannot say that the failure to argue Blakely was an “error[] so serious that counsel

was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S.

at 687.

          Furthermore, while subsequent decisions do not directly bear on the reasonableness of

counsel’s conduct at the relevant time, our conclusion that counsel’s failure to raise a Blakely claim

was not constitutionally unreasonable is bolstered by the fact that Ohio’s appellate courts

unanimously continued to reject Sixth Amendment challenges to Ohio’s felony-sentencing statute




                                                 - 11 -
No. 09-3484
Baker v. Voorhies

after Blakely.6 Although the First Appellate District did reverse course in February 2005, see State

v. Bruce, 824 N.E.2d 609, 611 (Ohio Ct. App. 1st Dist. 2005) (finding a Blakely violation and

concluding its earlier decision to the contrary was “wrong”), no other district followed suit until the

Ohio Supreme Court decided Foster a year later. The Ohio Sentencing Commission, meanwhile,

opined that Blakely “did not materially affect the Ohio sentencing scheme.” Ibid. (citing Diroll &

Anderson, Judicial Decision Making After Blakely, Ohio Criminal Sentencing Commission (Oct.

5, 2004)). That the entire Ohio appellate bench (at least through February 2005) and the state

sentencing commission failed to see the merit in a Blakely challenge to the Ohio felony-sentencing

statute makes it impossible to conclude that Foster was “clearly foreshadowed” at the time of

Baker’s appeal in July 2004.

       All in all, our general description of the scenario faced by trial counsel in Benning is just as

applicable here:

       The law was rapidly changing . . . and the impact of Blakely [on Ohio’s sentencing
       statute] was far from certain. Although prudent counsel would have [raised] a


       6
          See, e.g., State v. Weese, No. H-05-003, 2005 WL 1845256 (Ohio Ct. App. 6th Dist. Aug.
5, 2005); State v. Sanchez, No. 04AP-1320, 2005 WL 1745315 (Ohio Ct. App. 10th Dist. July 26,
2005); State v. Cooper, No. 84645, 2005 WL 1541000 (Ohio Ct. App. 8th Dist. June 30, 2005); State
v. Reen, No.2003-A-0077, 2005 WL 1009826 (Ohio Ct. App. 11th Dist. Apr. 29, 2005); State v.
Goins, No. 02 CA 68, 2005 WL 704865 (Ohio Ct. App. 7th Dist. Mar. 21, 2005); State v. Trubee,
No. 9-03-65, 2005 WL 335833 (Ohio Ct. App. 3d Dist. Feb. 14, 2005); State v. Rowles, No. 22007,
2005 WL 19440 (Ohio Ct. App. 9th Dist. Jan. 5, 2005); State v. Berry, 824 N.E.2d 543, 551 (Ohio
Ct. App. 12th Dist. 2004); State v. Wheeler, No. 04-CA-1, 2004 WL 2827714 (Ohio Ct. App. 4th
Dist. Nov. 26, 2004); State v. Iddings, No.2004-CA-A06043, 2004 WL 3563921 (Ohio Ct. App. 5th
Dist. Nov. 8, 2004); State v. Bell, No. C-030726, 2004 WL 1531904 (Ohio Ct. App. 1st Dist. July
9, 2004); see also State v. Martin, No. 20516, 2005 WL 2107858 (Ohio Ct. App. 2d Dist. Sept. 2,
2005) (holding that Blakely challenge failed under plain-error standard); State v. Bernhard, No.
2004-CA-66, 2005 WL 567313 (Ohio Ct. App. 2d Dist. Mar. 11, 2005) (same).

                                                - 12 -
No. 09-3484
Baker v. Voorhies

       Blakely claim under these circumstances, counsel’s failure to anticipate that Foster
       would [hold that Ohio’s sentencing statute violated Blakely] was not constitutionally
       unreasonable. See Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999). As in Lucas,
       Ohio courts “continued to grapple with the problem,” and thus resolution of the issue
       was “not clearly foreshadowed” at the time of [the appeal]. Therefore, this is not “one
       of those ‘rare cases’ for finding ineffective assistance because [counsel] failed to
       anticipate a development in the law.”

345 F. App’x at 157 (some internal citations omitted); accord Henley, 2010 WL 2181804, at *3

(“[A]s of the date of Henley’s sentencing, Ohio sentencing law was in a state of flux and his trial

counsel’s failure to anticipate the application of Blakely in Foster [therefore] did not constitute

ineffective assistance of counsel.”).

       This conclusion is all the more appropriate given the relative strength of the issues that

Baker’s counsel did raise on appeal. See Thompson, 598 F.3d at 285 (stating that appellate counsel

is ineffective only if a Blakely claim would have been “clearly stronger than [the] issues that counsel

did present”). Although Baker’s conviction and sentence were affirmed on appeal, the Second

District found at least some merit in Baker’s ineffective-assistance-of-trial-counsel claims, noting

that “evidence presented at trial could have supported an instruction for [the lesser included offense

of] aggravated assault” had counsel requested one, and that counsel had called a witness whose

testimony “was not helpful to the defense.” Cf. id. at 280 (holding failure to raise Blakely claim was

not ineffective performance where appellate counsel “raised several plausible arguments” and did

not merely assert a “perennial loser” such as a sufficiency-of-the-evidence claim (quoting Benning,

345 F. App’x at 158)).




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No. 09-3484
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2. Prejudice

       Even if Baker could show that his appellate counsel performed deficiently by failing to raise

a Blakely claim, he could not prevail without also showing that counsel’s deficient performance

prejudiced him. In this context, a showing of prejudice would require demonstrating “a reasonable

probability that inclusion of the [Blakely] issue would have changed the result of the appeal.”

Benning, 345 F. App’x at 158 (quoting Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008))

(alteration in original). This requires only “a reasonable probability that the appeal would have

resulted in a remand,” and does not necessarily require that “the remand would have resulted in a

shorter sentence.” Ibid.; see also Carter v. Timmerman-Cooper, Nos. 08-3535, 08-3536, 2010 WL

2089536, at *3 (6th Cir. May 25, 2010) (holding failure to assert Blakely claim in analogous context

did not result in prejudice because “under Ohio law at the time it is unlikely the Fifth District would

have remanded [petitioner’s] case”).7

       Under this standard, it is clear that Baker was not prejudiced by appellate counsel’s failure

to raise a Blakely claim. Baker’s appeal was decided in January 2005; before the Ohio Supreme

Court decided Foster in February 2006, the Second District consistently refused to consider any

Blakely arguments that had not been raised at the time of sentencing, finding such arguments

unpreserved. See, e.g., State v. Kerby, 833 N.E.2d 757, 773 (Ohio Ct. App. 2d Dist. 2005); State v.



       7
           In this respect, the prejudice component of Baker’s ineffective-appellate-assistance claim
differs from the harmless-error component of his underlying Blakely claim. If we were to reach the
latter inquiry, the controlling question would be whether Baker would actually have received a lesser
sentence absent the Blakely violation. See Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529,
536-38 (6th Cir. 2010).

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No. 09-3484
Baker v. Voorhies

Bolling, No. 20225, 2005 WL 1208103, at *11 (Ohio Ct. App. 2d Dist. May 20, 2005). Accordingly,

had Baker’s appellate counsel raised a Blakely claim for the first time on appeal in July 2004, the

Second District would have considered it waived, and Baker would not have received a remand.

       Further, the Second District would not have been swayed by the fact that Blakely had not yet

been decided at the time of Baker’s sentencing. During the pre-Foster period, the Second District

refused to consider “Blakely” claims raised for the first time on appeal even by defendants sentenced

prior to Blakely; the Second District reasoned that such claims were merely Apprendi claims, and

that there was consequently no excuse for not having raised them earlier:

       The fact that Blakely was not decided until after Defendant’s sentencing hearing took
       place is not significant because the issues reviewed in Blakely were previously
       reviewed many times by the United States Supreme Court and other federal and state
       courts. . . . The issue Defendant is now attempting to raise on appeal under Blakely
       is essentially the same constitutional argument raised in Apprendi. This Sixth
       Amendment contention clearly could have been raised by Defendant in the trial court
       below. . . . We will not address this constitutional challenge to Ohio’s felony
       sentencing scheme which is being raised for the first time on appeal.

Bolling, 2005 WL 1208103, at *11 (internal citations omitted); accord State v. DeLong, No. 20656,

2005 WL 937738, at *1-2 (Ohio Ct. App. 2d Dist. Apr. 15, 2005); State v. Watkins, No. 04-CA-12,

2005 WL 678993, at *3 (Ohio Ct. App. 2d Dist. Mar. 25, 2005).8

       In sum, Baker is simply incorrect when he asserts that he “would have been accorded a new

sentencing hearing” if his appellate counsel had made a Blakely argument to the Second District in

July 2004. Appellant’s Br. at 6.



       8
          Baker does not now argue that appellate counsel was ineffective for failing to argue that
trial counsel was ineffective for failure to raise an Apprendi challenge at sentencing.

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B. Substantive Blakely Claim

        In addition to arguing that appellate counsel was ineffective for failing to raise a Blakely

claim, Baker also argues on the merits that his sentence violates the Sixth Amendment. Respondent

maintains that Baker’s substantive Blakely claim is procedurally defaulted.

        “In this circuit, to determine whether a federal claim has been procedurally defaulted, we

apply a three-prong test . . . .” Eley v. Bagley, 604 F.3d 958, 964-65 (6th Cir. 2010). First, “the court

must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that

the petitioner failed to comply with the rule.” Ibid. (quoting Jacobs v. Mohr, 265 F.3d 407, 417 (6th

Cir. 2001)). Second, “the court must decide whether the state courts actually enforced the state

procedural sanction.” Ibid. (quoting Jacobs, 265 F.3d at 417). Finally, “the court must decide

whether the state procedural forfeiture is an ‘adequate and independent’ state ground on which the

state can rely to foreclose review of a federal constitutional claim.” Ibid. (quoting Jacobs, 265 F.3d

at 417).

        Each of these three conditions is satisfied here. Ohio’s procedural rule of res judicata

provides that all claims must be raised on direct appeal, and may not be saved for collateral review,

unless “facts necessary to develop a claim were [not] available on direct appeal . . . .” Abshear v.

Moore, 354 F. App’x 964, 967 (6th Cir. 2009) (citing cases); see also Eley, 604 F.3d at 965. Baker

failed to comply with this rule. His initial appeal did not invoke Blakely at all, and his Rule 26(B)

application to reopen alleged only ineffective assistance of appellate counsel premised on failure to

argue Blakely, rather than a substantive Blakely claim. See Davie v. Mitchell, 547 F.3d 297, 312 (6th

Cir. 2008) (holding that “a Rule 26(B) application based on ineffective assistance cannot function

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to [save] the underlying substantive claim” from procedural default (internal quotation marks

omitted)); Abshear, 354 F. App’x at 968 (holding that Rule 26(B) application arguing ineffective

appellate assistance for failure to make Blakely argument did not raise underlying Blakely claim for

purposes of procedural-default analysis).      Moreover, we have repeatedly held that “Ohio’s

application of res judicata . . . is an actually enforced, adequate and independent state ground upon

which the Ohio state courts consistently refuse to review the merits of a defendant’s claims.” Eley,

604 F.3d at 965 (quoting Fautenberry v. Mitchell, 515 F.3d 614, 633 (6th Cir. 2008)).

       Even though the conditions for procedural default are met, “we may still excuse the default

if the petitioner can demonstrate ‘that there was cause for him not to follow the procedural rule and

that he was actually prejudiced by the alleged constitutional error.’” Ibid. (quoting Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986)).9 As cause for his default, Baker asserts both (1) that appellate

counsel provided ineffective assistance and (2) that a Blakely claim was “so novel that its legal basis

[was] not reasonably available to counsel . . . .” Reply Br. at 5.

       Either of these could, in theory, constitute “cause” for a procedural default. See Murray v.

Carrier, 477 U.S. 478, 496 (1986) (“Ineffective assistance of counsel . . . is cause for a procedural

default.”); Reed v. Ross, 468 U.S. 1, 16 (1984) (“[W]here a constitutional claim is so novel that its

legal basis is not reasonably available to counsel, a defendant has cause for [procedural default].”).

However, it is inconceivable that both could be true in a single case – after all, if a claim is well-


       9
            Even without a showing of cause, a court may overlook procedural default “in an
extraordinary case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent . . . .” Murray v. Carrier, 477 U.S. 478, 496 (1986). Baker does not argue
that this is one of those extraordinary cases.

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Baker v. Voorhies

enough established that counsel is constitutionally deficient not to raise it, it is ipso facto not “so

novel that its legal basis is not reasonably available.”

        Further, in Baker’s case, neither is true. See Pitts v. Cook, 923 F.2d 1568, 1571-72 (11th Cir.

1991) (stating that a claim may simultaneously be “not so novel as to excuse procedural default,

[and] not so established that failure to [assert it] constituted ineffective assistance of counsel”). As

discussed above, the eventual invalidation of Ohio’s felony-sentencing scheme under Blakely was

not so “clearly foreshadowed by existing decisions” that counsel’s failure to mount a Blakely

challenge was constitutionally unreasonable. Thompson, 598 F.3d at 288. At the same time, Blakely

and Apprendi were both on the books at the time of Baker’s direct appeal, such that Baker did not

“lack[] the tools to construct [his] constitutional claim,” Engle v. Isaac, 456 U.S. 107, 132 (1982)

(emphasis added), even if it was doubtful that he would prevail on it. See also Poyner v. Murray,

964 F.2d 1404, 1424 (4th Cir. 1992) (stating that a claim may be “sufficiently novel” to justify

procedural default only if the “case law . . . necessary to conceive and argue the claim” was not yet

in existence at the time of default (emphasis added)). Baker’s acknowledgment that there was a

“wave of Blakely-related appellate activity in Ohio during the pendency of [his] appeal” confirms

that such a claim was not sufficiently novel to excuse his procedural default. Reply Br. at 3; see

Wheeler v. United States, 329 F. App’x 632, 636 (6th Cir. 2009) (stating that “where other defense

counsel have raised the claim, the issue can hardly be novel”).

        Baker, therefore, cannot show the cause necessary to excuse his procedural default. As a

result, he is not entitled to habeas relief on his substantive Blakely claim.



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                                       CONCLUSION

       For the reasons described above, the district court’s denial of the writ is AFFIRMED.




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