                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0272p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                               X
                                                -
 GLEN EVANS, SR.,
                                                -
                              Petitioner-Appellee,
                                                -
                                                -
                                                     No. 08-3717
          v.
                                                ,
                                                 >
                                                -
                     Respondent-Appellant. -
 STUART HUDSON, Warden,
                                                -
                                               N
                 Appeal from the United States District Court
                for the Northern District of Ohio at Cleveland.
                 No. 07-01291—Sara E. Lioi, District Judge.
                                   Argued: April 23, 2009
                            Decided and Filed: August 3, 2009
                                                                                           *
    Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, District Judge.

                                    _________________

                                         COUNSEL
ARGUED: Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Craig M. Jaquith, OHIO PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Jerri L. Fosnaught, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Craig M.
Jaquith, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

        KAREN NELSON MOORE, Circuit Judge. Respondent-Appellant Stuart
Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the
district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen


        *
        The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                               1
No. 08-3717                 Evans v. Hudson                                              Page 2


Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or
release him. Hudson contends that the district court erred in concluding that Evans
received ineffective assistance of appellate counsel because appellate counsel failed to
raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296
(2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the
reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice,
— U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas
relief.

                              I. FACTS AND PROCEDURE

          The underlying facts of this case are not in dispute and were summarized in the
district court opinion:

                  On November 16, 2004, following a jury trial, Petitioner[, Evans,]
          was convicted in the Cuyahoga County Court of Common Pleas on one
          count of aggravated murder (O. R. C. § 2903.01), two counts of
          kidnapping (O. R. C. § 2905.01), and two counts of felonious assault (O.
          R. C. § 2903.11), with fire arm specifications on all counts. On the same
          day, the trial judge sentenced Petitioner as follows: on the aggravated
          murder count, life with the possibility of parole after 20 years, plus three
          consecutive years for the firearm specification; on each of the kidnapping
          counts, three years plus three years for the firearm specifications, all to
          run concurrent with each other and with count 1; and on each of the
          felonious assault counts, four years plus three years for the firearm
          specifications, with the specification running concurrent with each base
          sentence. The sentence on the felonious assault count relating to victim
          Joseph Dixon (Count 5) was to run concurrent with all the others; but the
          sentence on the felonious assault count relating to victim Rocky George
          Smith (Count 4) was to run consecutive to all the other sentences.
          Therefore, Petitioner was sentenced to a total of 27 years to life.
                  Represented by counsel, [Patrick E. Talty,] Petitioner filed a
          direct appeal to the Eighth District Court of Appeals. He assigned the
          following errors:
                  1. The verdict of the jury finding defendant-appellant
                     guilty of aggravated murder, kidnapping and
                     felonious assault is against the manifest weight of the
                     evidence.
No. 08-3717               Evans v. Hudson                                            Page 3


               2. The trial court erred in admitting the State’s exhibits
                  into evidence because they were prejudicial and
                  cumulative.
               3. The trial court erred in sentencing
                  defendant-appellant to consecutive terms of
                  imprisonment when it did not follow the statutory
                  requirements for the imposition of such a sentence.
              On September 1, 2005, the appellate court overruled each
       assignment of error and affirmed the judgment of the trial court.
               On October 25, 2005, [then] represented by [new] counsel,
       Petitioner filed a timely appeal to the Supreme Court of Ohio, raising the
       following propositions of law:
               1. A trial court commits reversible error when it imposes
                  consecutive sentences on a criminal defendant
                  without making the appropriate findings of
                  proportionality required by R.C. 2929.14(E)(4).
               2. An appellate counsel fails to provide effective
                  assistance of counsel when he or she fails to provide
                  meritorious assignments of error on appeal.
               The Ohio Supreme Court accepted the appeal on the second
       proposition of law, but ordered the case held for the decisions in State v.
       Quinones (No. 04-1771) and State v. Foster (No. 04-1568). On May 3,
       2006, after deciding Foster, the Supreme Court sua sponte dismissed the
       appeal “as having been improvidently accepted pursuant to the rule
       relating to ineffective assistance of counsel announced in Strickland v.
       Washington (1984), 466 U.S. 668.” (Doc. No. 6, Exh. 12.)
              On May 2, 2007, Petitioner filed the instant application for a writ
       of habeas corpus asserting a single ground for relief based on Blakely.
       Respondent filed a Return of Writ (Doc. No. 6) and Petitioner filed a
       Traverse (Doc. No. 15).
Evans v. Hudson, No. 1:07 CV 1291, 2008 WL 1929983, at *2 (N.D. Ohio Apr. 29,
2008) (unpublished opinion). In his petition for a writ of habeas corpus, Evans contends
that he “was deprived of his right to the effective assistance of appellate counsel, as
guaranteed by the Sixth Amendment to the United States Constitution, based on
appellate counsel’s failure to raise a claim [at the Ohio Eighth District Court of Appeals]
that Petitioner’s sentence was imposed in contravention of the Sixth and Fourteenth
No. 08-3717               Evans v. Hudson                                            Page 4


Amendments to the United States Constitution.” Record on Appeal (“ROA”) at 8 (Pet.
for Writ at 5).

        Evans’s petition was referred to a magistrate judge, who issued a Report and
Recommendation recommending that Evans’s petition be denied. ROA at 336. The
magistrate judge noted that Evans had exhausted his ineffective-assistance-of-appellate-
counsel claim and that the claim was not procedurally defaulted. However, after
reviewing the sentencing transcript, the magistrate judge concluded that Evans’s
sentence did not violate Blakely and, therefore, Evans could not show that his appellate
counsel’s representation was in violation of Strickland v. Washington, 466 U.S. 668
(1984), for failing to raise a Blakely claim.

        The district court adopted the magistrate judge’s finding regarding procedural
default, but rejected the magistrate judge’s Blakely conclusion. The district court
explained that, in State v. Foster, 845 N.E.2d 470 (Ohio 2006), the Ohio Supreme Court
concluded that the statute that the sentencing judge relied upon in imposing Evans’s
sentence, Ohio Rev. Code § 2929.14(E)(4), violated Blakely because, under
§ 2929.14(E)(4), “an Ohio defendant could not be sentenced to consecutive sentences
without additional judicial fact-findings.”        Evans, 2008 WL 1929983, at *6.
Furthermore, although Foster post-dated Evans’s sentence, Blakely did not and thus
Evans’s sentence violated clearly established law.

        Turning to the issue of ineffective assistance of appellate counsel, the district
court concluded that “[e]ven though the court in Foster stated that ‘[m]ost Ohio appellate
courts [ . . . ] determined that Blakely [was] inapplicable[,]’ Foster, 109 Ohio St. 3d at
17, at the time of Petitioner’s appeal, the appellate court to which he would have taken
his appeal seems to have been leaning in the opposite direction.” Id. at *7 (first
alteration added). The district court found that, “[i]n light of the developing case law at
the time, counsel’s performance was deficient for failing to at least raise the Blakely
issue” on appeal. Id. Additionally, on the issue of prejudice, the district court noted that
it could “have no sure way of knowing what might have happened had Petitioner’s case
been remanded for re-sentencing by the state court,” but that it could not “say for sure
No. 08-3717               Evans v. Hudson                                        Page 5


that Petitioner, had he been resentenced prior to Foster, would have received the same
sentence.” Id. Thus, the district court concluded that Evans had shown prejudice. The
district court conditionally granted Evans’s petition for a writ of habeas corpus and
ordered that Evans be resentenced within 90 days or released. Hudson timely appealed.

       After the parties filed their briefs in this court, but before oral argument, the
United States Supreme Court issued an opinion in Oregon v. Ice, --- U.S. ---, 129 S. Ct.
711 (2009), holding that allowing state judges to find facts when determining whether
to impose consecutive sentences does not violate the Sixth Amendment as interpreted
by Blakely. Id. at 714-15. In response to a request by the panel, the parties submitted
letter briefs concerning the impact of Ice on the current appeal.

                                   II. ANALYSIS

A. Standard of Review

       “We review de novo a district court’s determinations regarding a habeas
petitioner’s claim of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d
766, 771 (6th Cir. 2008). Moreover, the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) governs all habeas petitions filed after AEDPA’s effective date.
See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). AEDPA provides that

       An 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)(1)-(2) (emphasis added). However, AEDPA’s “deferential standard
of review . . . applies only to a claim that has been adjudicated on the merits in State
No. 08-3717                Evans v. Hudson                                            Page 6


court proceedings.” Brown v. Smith, 551 F.3d 424, 428 (6th Cir. 2008) (internal
quotation marks omitted). When AEDPA deference does not apply, we apply the pre-
ADEPA standard of review and review questions of law de novo and questions of fact
for clear error. Brown, 551 F.3d at 430; see also Maples v. Stegall, 340 F.3d 433, 436
(6th Cir. 2003).

        In the instant case, it is clear that Evans’s ineffective-assistance-of-appellate-
counsel claim was not adjudicated on the merits in the Ohio Supreme Court; rather, the
Ohio Supreme Court, after granting discretionary review of the issue, dismissed the case
sua sponte, explaining only that discretionary review “ha[d] been improvidently
accepted pursuant to the rule relating to ineffective assistance of counsel announced in
Strickland v. Washington (1984), 466 U.S. 668.” ROA at 303 (5/22/06 Ohio Supreme
Court J. Entry). This perfunctory dismissal is not entitled to AEDPA deference; thus,
we will review Evans’s ineffective-assistance-of-appellate-counsel claim under the pre-
ADEPA standard of review.

B. Ineffective Assistance of Appellate Counsel

        On an appeal of right, a criminal defendant is entitled to effective assistance of
appellate counsel. Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008). Claims of
ineffective assistance of appellate counsel are subject to the Strickland test, which
requires a defendant to show both deficient representation and prejudice. Id. To meet
his or her burden, “a petitioner must show that the performance of counsel fell below an
objective standard of reasonableness and that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Burton v. Renico, 391 F.3d 764, 773 (6th Cir. 2004) (internal quotation
marks omitted); see also Maples, 340 F.3d at 437. When evaluating the issue of
ineffective assistance of appellate counsel, we review the appellate proceedings to
determine whether prejudice is shown. Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004)
(noting that prejudice is shown if “there is ‘a reasonable probability that, but for his
counsel’s [failings] . . ., [the defendant] would have prevailed on his appeal’” (alterations
in original) (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)). “A reasonable
No. 08-3717                     Evans v. Hudson                                                      Page 7


probability is a probability sufficient to undermine confidence in the outcome.” Burton,
391 F.3d at 773 (internal quotation marks omitted); Maples, 340 F.3d at 437.

         Evans’s habeas petition contends that his counsel during his appeal of right to the
Ohio Eighth District Court of Appeals was ineffective because that appellate counsel did
not challenge Evans’s consecutive sentences based on Blakely. Hudson asserts that the
district court erred when it concluded that Evans’s appellate counsel was deficient for
failing to raise the Blakely argument and when it concluded that this failure prejudiced
Evans. Specifically, Hudson contends that: (1) Ice renders Evans’s argument that he
was sentenced in violation of Blakely meritless; (2) at the time Evans’s appellate brief
was filed, a Blakely claim was not clearly stronger than the claims Evans’s appellate
counsel raised; and (3) Evans has not shown prejudice from any alleged error of
appellate counsel.1 We conclude that, in light of Ice and other Supreme Court precedent,
Evans is not now entitled to habeas relief.

         In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court was confronted
with an Arkansas state defendant whose trial counsel failed to make an objection to the
aggravating factor upon which his death sentence was based. At the time of sentencing,
the Eighth Circuit Court of Appeals had held, in Collins v. Lockhart, 754 F.2d 258 (8th
Cir. 1985), that the use of the aggravating factor in question was unconstitutional. On
state collateral review, the defendant raised the claim of ineffective assistance of trial
counsel for failing to make a Collins objection, which the state court denied. Defendant
then filed a 28 U.S.C. § 2254 petition, “argu[ing] that his trial counsel did not perform
effectively because he failed to raise the Collins objection.” Fretwell, 506 U.S. at 367.
The district court granted the habeas petition and the Eighth Circuit Court of Appeals
affirmed, even though it had overruled Collins while defendant’s habeas petition was
pending. The Court of Appeals reasoned


         1
          Hudson further argues that Evans cannot prove that his sentence on remand would have differed
from the sentence imposed originally and thus Evans cannot show prejudice. As explained above, such
a showing is not required; when asserting a claim of ineffective assistance of appellate counsel, a petitioner
need show only a reasonable probability that the result of his appeal would have been different. Mapes,
388 F.3d at 194. In other words, here Evans need show only that had appellate counsel raised the Blakely
issue on appeal, there is a reasonable probability that Evans would have received a new sentencing
proceeding.
No. 08-3717                   Evans v. Hudson                                                   Page 8


         that the Arkansas trial court was bound under the Supremacy Clause to
         obey the Eighth Circuit’s interpretation of the Federal Constitution [in
         Collins]. Based on this belief, it reasoned that had counsel made the
         objection, the trial court would have sustained the objection and the jury
         would not have sentenced respondent to death. . . . It held that since
         respondent was entitled to the benefit of Collins at the time of his
         original sentencing proceeding, it would only perpetuate the prejudice
         caused by the original sixth amendment violation to resentence him
         under current law.
Fretwell, 506 U.S. at 368 (internal quotation marks omitted).

         The Supreme Court reversed, holding “that the court making the prejudice
determination may not consider the effect of an objection it knows to be wholly meritless
under current governing law, even if the objection might have been considered
meritorious at the time of its omission.” Id. at 374 (O’Connor, J, concurring); id. at 371-
72. The Court noted that “the Sixth Amendment right to counsel exists ‘in order to
protect the fundamental right to a fair trial.’” Id. at 368 (quoting Strickland, 466 U.S.
at 684). Moreover, the Court reasoned that, when evaluating the prejudice prong of
Strickland,

         an analysis focusing solely on mere outcome determination, without
         attention to whether the result of the proceeding was fundamentally
         unfair or unreliable, is defective. To set aside a conviction or sentence
         solely because the outcome would have been different but for counsel’s
         error may grant the defendant a windfall to which the law does not entitle
         him.
Id. at 369-70 (footnote omitted).

         Although the holding of Fretwell is very narrow, Northrop v. Trippett, 265 F.3d
372, 385 (6th Cir. 2001), the circumstances of the instant appeal are strikingly similar
to Fretwell.2 At the time of Evans’s direct appeal, Evans’s Blakely claim was arguably
meritorious. However, this alone is not enough to show prejudice, because the Supreme



         2
           We recognize that Fretwell deals specifically with an ineffective-assistance-of-trial-counsel
claim; however, there is no language in Fretwell suggesting that its principles should not be applied to
ineffective-assistance-of-appellate-counsel claims. Moreover, we previously have applied Fretwell to an
ineffective-assistance-of-appellate-counsel claim. Hicks v. United States, 122 F. App’x 253, 257-59 (6th
Cir. 2005).
No. 08-3717                     Evans v. Hudson                                                      Page 9


Court changed the applicable law with its decision in Ice while Evans’s habeas appeal
was pending. In Ice, the Supreme Court held, “in light of historical practice and the
authority of States over administration of their criminal justice systems, that the Sixth
Amendment does not exclude” a state’s practice of requiring a judge to find certain facts
before she can sentence a defendant to consecutive, rather than concurrent, terms of
imprisonment. Ice, 129 S. Ct. at 714-15. Pursuant to Ice’s holding, Evans’s underlying
claim—that his sentence to consecutive terms based on judge-found facts violates
Blakely—is meritless. Thus, according to Fretwell, Evans cannot show the necessary
prejudice for his claim of ineffective assistance of appellate counsel based on the failure
to raise a now-meritless claim, regardless of the fact that the Blakely claim may have had
merit at the time of Evans’s appeal, because Evans cannot show that his appellate
proceeding was “fundamentally unfair or unreasonable.”3 Fretwell, 506 U.S. at 369;
Hicks v. United States, 122 F. App’x 253, 259 (6th Cir. 2005). A holding to the contrary
would give Evans “a windfall to which the law does not entitle him.” Fretwell, 506 U.S.
at 370. Therefore, we conclude that Evans’s ineffective-assistance-of-appellate-counsel
claim must fail after the Supreme Court’s decision in Ice.

                                         III. CONCLUSION

         Because Ice forecloses Evans’s ineffective-assistance-of-appellate-counsel claim,
we REVERSE the district court’s grant of a conditional writ of habeas corpus.




         3
           The fact that Foster may still be good law in Ohio does not alter our conclusion. Evans has
asserted only that his appellate counsel was ineffective for failing to raise a Blakely claim, not for failing
to raise a Foster claim. See, e.g., ROA at 8 (Pet. for Writ at 5). Indeed, Evans could not assert that
appellate counsel was ineffective for failing to raise a Foster claim because Foster postdates Evans’s direct
appeal to the Eighth District. Thus, what effect Ice has on Foster is irrelevant to the current appeal, and
we will not speculate on that issue.
