                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 20a0408n.06

                                         No. 18-6132


                         UNITED STATES COURT OF APPEALS                             FILED
                              FOR THE SIXTH CIRCUIT                             Jul 16, 2020
                                                                           DEBORAH S. HUNT, Clerk
 MICKEY WILLIAMS,                                      )
                                                       )
        Petitioner-Appellee,
                                                       )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
 v.
                                                       )      COURT FOR THE EASTERN
 KEVIN HAMPTON,                                        )      DISTRICT OF TENNESSEE
                                                       )
        Respondent-Appellant.                          )                 OPINION
                                                       )


       BEFORE: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Warden Kevin Hampton appeals the conditional

grant of habeas relief on Blakely grounds to Mickey Lee Williams.         Issues presented are

(1) whether the state trial court erred by relying at sentencing on the factual conclusion that

Williams had a “previous history of unwillingness to comply” with conditions of release without

such a finding by the jury, (2) the status of any such Sixth Amendment error under federal law,

and (3) whether any such error was harmless. The Warden now concedes that the enhancement

applied was inconsistent with Blakely and that the state court’s decision to the contrary was an

unreasonable application of clearly established Supreme Court precedent.        See 28 U.S.C.

§ 2254(d). The only remaining issue in dispute is whether the conceded error was harmless—

whether, had the jury been asked to, it would have made the necessary factual findings. Because

evidence that would support this enhancement was not presented to the jury, we cannot know what
No. 18-6132, Williams v. Hampton


the jury would have found. Accordingly, there is no basis to conclude that the trial court’s error

was harmless. We therefore AFFIRM.

                                       I. BACKGROUND

       Williams was convicted of second-degree murder and arson for stabbing and killing Terry

Johnson and starting a fire in the decedent’s home. The facts as recounted by the Tennessee Court

of Criminal Appeals (“TCCA”) portray a chaotic episode in which Williams stabbed Terry

Johnson—the husband of Patricia Johnson, with whom Williams had had an affair—after

confronting the Johnsons at their home and fighting with Terry Johnson in the yard. A jury

convicted Williams of second-degree murder and arson on June 7, 2004, and the trial court

imposed an effective sentence of 24 years.

       On October 27, 2004, Williams filed an untimely motion for a new trial, which included a

challenge to the trial court’s decision to sentence him above the presumptive minimum sentence

in reliance on aggravating factors not found by a jury. The trial court denied the motion but,

without explanation, reduced Williams’s sentence to 23 years. On direct appeal, the TCCA

affirmed Williams’s conviction, but reinstated the original 24-year sentence on the basis that the

trial court was without jurisdiction to modify it. At the state post-conviction stage, the Grainger

County Circuit Court denied Williams’s post-conviction claims as to trial court error, but granted

a delayed appeal, finding that Williams’s trial counsel was ineffective for failing to file a timely

motion for new trial. Williams raised his Blakely claim in another motion for new trial and it was

denied on the merits.

       Williams filed a § 2254 federal habeas petition on September 16, 2015, raising numerous

grounds for relief concerning his trial, sentencing, and state court collateral proceedings. On

September 26, 2018, the district court issued a comprehensive opinion denying all but Williams’s



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Blakely claim. It reasoned that the trial court erred by relying on facts not found by the jury to

impose a sentence above the presumptive minimum. The Warden appeals the disposition of

Williams’s Blakely claim.

                                          II. ANALYSIS

       A.      Standard of Review

       In a federal habeas case, we review a district court’s conclusions of law de novo. Hand v.

Houk, 871 F.3d 390, 406 (6th Cir. 2017). We review a district court’s own findings of fact for

clear error. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005).

       Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner is

entitled to relief on a constitutional claim adjudicated by a state court on the merits only where the

state court decision was “contrary to, or involved an unreasonable application of clearly

established federal law, as determined by the Supreme Court of the United States,” or “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). In addition to showing that

the state court’s adjudication of a constitutional claim warrants federal relief under § 2254(d), a

Blakely error must amount to more than harmless error. Lovins v. Parker, 712 F.3d 283, 303 (6th

Cir. 2013). To establish a harmful error on habeas review, Williams must show that the Blakely

error had “‘a substantial and injurious effect’ upon [his] sentence, or that there is ‘grave doubt’ as

to whether the error had such an effect.” Owens v. Parris, 932 F.3d 456, 459 (6th Cir. 2019)

(quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)); Brecht v. Abrahamson, 507 U.S. 619,

637 (1993).




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       B.       Discussion

       1. Clearly Established Federal Law

       In Apprendi v. New Jersey, the Supreme Court 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). It then clarified this holding in Blakely v. Washington, reasoning 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 defendants.” 542 U.S. 296, 303

(2004) (emphasis in original); see also Lovins, 712 F.3d at 289–90.

       At the time the district court issued its opinion, the question of whether the Tennessee

Supreme Court’s application of Blakely to judicial fact-finding at sentencing was “contrary to, or

involved an unreasonable application of,” Supreme Court precedent was pending before this court

in Owens v. Parris. 932 F.3d at 459. We concluded that it was unreasonable. Id. Owens held

that the Tennessee sentencing scheme allowing judges to find facts that increased a defendant’s

exposure to punishment violated the Sixth Amendment, and that the Tennessee Supreme Court’s

decision to the contrary was an unreasonable application of Blakely. Id. at 458–59. In light of

Owens, the Warden now concedes that Williams’s sentence violated the Court’s clearly established

Sixth Amendment jurisprudence and that the only remaining issue on appeal is whether the error

was harmless.

       2. Harmless Error

       The trial court found three sentencing enhancement factors applicable to Williams’s

second-degree murder conviction: “(1) previous history of criminal convictions in addition to that

necessary to establish the appropriate range; (2) previous history of unwillingness to comply with

conditions of release in the community; and (3) possession or use of a deadly weapon during the


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No. 18-6132, Williams v. Hampton


commission of the offense.” Williams v. Cook, No. 3:15-CV-00415, 2018 WL 4621820, at *17

(E.D. Tenn. Sept. 26, 2018). Based on these enhancements, the trial court increased Williams’s

sentence from the presumptive sentence of 20 years to a term of 25 years. Id. The sentencing

court explained that it placed “great weight” on the first and third enhancement factors; but also

included the second factor in its sentencing decision. Id. It then lowered Williams’s sentence to

24 years in light of life history information presented in mitigation. Id. The parties agree that the

first enhancement factor occupies the exception explained in Blakely, 542 U.S. at 302, permitting

judicial fact-finding about a defendant’s criminal history, and that the third was necessarily

encompassed by the jury’s findings of fact. Id. at *17 n.18. Only the second enhancement factor

is at issue in this appeal. See Tenn. Code Ann. § 40-35-114(9) (2004).

        To assess whether the conceded error had a substantial and injurious effect upon Williams’s

sentence, we ask “whether the jury would have found [the enhancement] if that question had been

submitted to it.” Owens, 932 F.3d at 459. Owens explained that “the question whether the court

would have imposed the same sentence on remand is itself incoherent in cases where—as here—

the court’s factfinding liberated the court to impose the sentence that the court in fact imposed,

rather than mandated that sentence.” Id. at 460. And it concluded that “[w]hat is missing . . . is a

jury finding, not a judicial one. Hence the question as to harmlessness is whether the jury would

have made the necessary finding had the jury been asked to make it.” Id. Because the court’s fact-

finding “liberated” it to impose the sentence at issue in this case, that test applies here.

        Owens concluded that the factual findings necessary to the “exceptional cruelty”

enhancement at issue were established from the findings made by the jury. We reasoned that

because the “jury did in fact convict him of second-degree murder. . . . we are confident that the

jury rejected Owens’s account of the murder and accepted the State’s.” Id. at 460–61. And




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No. 18-6132, Williams v. Hampton


because believing Owens’s testimony would have been the only basis not to find the facts

necessary to the enhancement, we had “little doubt that, if asked, the jury would have made the

requisite finding” that Owens’s actions constituted “psychological abuse or torture.” Id. at 461.

Critically, we asked what the jury would have found based on the evidence actually presented to

it.

       Here, by contrast, the evidence of the enhancement at issue was not—in any form—before

the jury. Unlike in Owens, where evidence about the circumstances surrounding the crime had the

effect of supporting a finding of the exceptional cruelty enhancement, the jury in this case was

presented with no evidence that had any bearing on whether Williams had a previous history of

unwillingness to comply with conditions of release. Neither the enhancement, nor any evidence

related to it, was presented to the jury. And because the state did not present the jury with such

evidence, we are not in a position to know or derive what the jury would have found had it been

asked. It cannot be said, therefore, that the constitutional error in question was harmless.

Moreover, we know this enhancement had some impact on the trial court’s sentence because, when

presented with the Blakely error, it attempted (ultimately unsuccessfully) to lower Williams’s

sentence. See Williams, 2018 WL 4621820, at *23; see also Lovins, 712 F.3d at 303–04. In sum,

because evidence of the enhancement was never presented to the jury, the trial court’s Blakely

error was not harmless.

                                      III. CONCLUSION

       Because the Blakely error in question was not harmless, we AFFIRM the conditional grant

of habeas relief to Williams.




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No. 18-6132, Williams v. Hampton


       NALBANDIAN, Circuit Judge, concurring in judgment. I agree with the lead opinion

that the jury never heard evidence on the sentencing enhancement and that Williams’s sentence

stemmed from judicial factfinding, which constitutes a Blakely error. I also agree that the error was

not harmless. So I join Judge Stranch’s conclusion that the error produced a “substantial and

injurious effect or influence” on Williams’s sentence under Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). That said, I disagree with how the lead opinion’s harmless error analysis cabins itself

to evidence that the jury considered. Instead, I believe that this Court should determine what a jury

would have done had it heard the full evidence available to the sentencing judge. Under that

analysis, a Blakely error is harmless if the jury would have applied the sentencing enhancement

had it heard the government’s case. All in all, I find that the Blakely error here wasn’t harmless,

but I would use a broader framework than the one applied by the lead opinion. Thus, I concur.

       When addressing a harmless error question, like the one here, this Court asks “whether the

jury would have returned the same verdict absent the error.” Owens v. Parris, 932 F.3d 456, 460

(6th Cir. 2019) (quoting Washington v. Recuenco, 548 U.S. 212, 221 (2006)). Applying Owens,

the lead opinion reasons that because the jury heard little about the enhancement, or evidence

supporting the enhancement, the error could not have been harmless. Yet I do not agree that the

government’s failure to present evidence on a sentencing enhancement to a jury necessarily

precludes finding a harmless Blakely error. Rephrased, the government’s error can still be harmless

even when a jury fails to hear details about the enhancement, so long as no structural error occurs.1

When performing harmless error review, federal courts must rule “in light of the record as a

whole[.]” Brecht, 507 U.S. at 638; accord, e.g., McWilliams v. Comm’r, Ala. Dep’t of Corrs.,


1
 Structural errors touch “the framework of any criminal trial,” such as failure to respect the
defendant’s right to counsel or to a public trial. Weaver v. Massachusetts, 137 S. Ct. 1899, 1907–
1909 (2017).


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No. 18-6132, Williams v. Hampton


940 F.3d 1218, 1226 (11th Cir. 2019) (appellate courts must “look to the record of the state trial

court as a whole” when reviewing for harmless error under Brecht). That’s because the point of

harmless error inquiry is to ask what would have happened without the trial error. See Brecht, 507

U.S. at 629. In short, the government’s failure to show the jury the last card in a winning hand

constitutes harmless error, assuming no structural error occurred. See United States v. Henderson,

626 F.3d 326, 333 (6th Cir. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)

(“Errors are deemed harmless when ‘the reviewing court may confidently say, on the whole record,

that the constitutional error was harmless beyond doubt.’”)). But that counterfactual analysis turns

on whether the government presented a convincing case.

       The government had the burden to establish Williams’s “previous history of unwillingness

to comply with the conditions of a sentence involving release in the community.” Tenn. Code Ann.

§ 40-35-114(9) (2004). The record reflects weaknesses in the government’s case suggesting the

error’s harmfulness. First, the government relied on the wrong conviction at trial when arguing

that the sentencing enhancement should apply. Although the sentencing enhancement sprung from

an April 1996 DUI, the government erroneously relied on a 1998 DUI during the sentencing

hearing. (R. 12, Tr. Sentencing Hr’g, PageID # 998.) When reconstructing a trial to review for

harmless error, failure to discuss the correct episode of noncompliance strikes me as too grave

misstep to pave over. It’s hard to imagine that we would uphold, in a typical case, a sentence where

the jury never heard evidence over the probation violation supporting a sentencing enhancement.

       Next, Williams presents a colorable argument that a jury might not have found that his

singular violation of probation conditions amounted to a history of noncompliance. On its face,

the enhancement’s “previous history” language might well require multiple probation violations.

Yet although the sentencing judge did not fully explain why he applied the previous history




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No. 18-6132, Williams v. Hampton


sentencing enhancement, Tennessee state court decisions suggest that even one probation violation

can trigger the enhancement. See, e.g., State v. King, No. E2002-00634-CCA-R3-CD, 2003 WL

21261775, at *7–8 (Tenn. Crim. App. June 2, 2003); State v. Ussery, No. M2000-00194-CCA-R3-

CD, 2000 WL 1369494, at *4 (Tenn. Crim. App. Sept. 22, 2000). Williams, I think, rightly frames

this as a question of law: Whether one incident, here a DUI, can satisfy the previous history

requirement. And answering legal questions falls outside the jury’s purview.

       Still, even though Williams cannot complain that the jury didn’t consider a question of law,

he’s right that the jury still needed to make the factual determination that his singular probation

violation at issue met the enhancement’s requirements. Although Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), does not require that “the fact of a prior conviction . . . be submitted to a

jury,” the government needed to show more than Williams’s conviction. It also needed to prove

that the DUI violated Williams’s release conditions. In the end, the jury had to find that Williams

committed the DUI while on probation, yet the government offered scant evidence on that issue.

       Considering these gaps in the government’s argument, I cannot conclude that a jury would

have found the predicate facts supporting the previous history enhancement if, like the sentencing

judge, it was privy to all contours of the case. Owens tells us that harmless error must relate to “a

jury finding, not a judicial one.” 932 F.3d at 460. But that holding does not confine this Court’s

analysis to the evidence heard by the jury. It follows that we resolve these claims by hypothesizing

about how the jury would have ruled, were it given the chance, based on the record built at trial.

Looking at the trial record as a whole, which includes evidence introduced during the sentencing

hearing, the government’s missteps confirm that the Blakely error was not harmless. Because I

don’t believe that a jury would have applied the previous history enhancement had it made the

decision instead of the sentencing judge, I would AFFIRM.




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No. 18-6132, Williams v. Hampton


       ALICE M. BATCHELDER, Circuit Judge, dissenting. Because I find the sentencing

error in this case was harmless, I respectfully dissent. At Williams’s sentencing hearing, the trial

court explained its determination of the enhancement factors as follows:

       The [c]ourt has considered the principles set forth in the Criminal Sentence Reform
       Act of 1989, listened to arguing of counsel, the record, the trial record, the pre-
       sentence investigation report[,] and with regard to the Second Degree Murder
       Conviction the [c]ourt finds the following enhancing factors to apply:
               [1] That the defendant does have a previous history of criminal convictions
       in addition to that necessary to establish the appropriate [sentence] and the [c]ourt
       will take great weight in that factor.
              [2] The [c]ourt does find that the defendant has a previous history of
       unwillingness to comply with conditions release in the community.
             [3] The [c]ourt finds that the defendant possessed or employed a deadly
       weapon during the commission of the offense, puts great weight in that factor.
              The sentence is presumptive of 20 [years in prison]. The [c]ourt finds that
       the previous enhancing factors noted by the [c]ourt are sufficient to and should
       increase this defendant’s sentence to 25 years.
               The [c]ourt remembers the testimony from the one witness that stated that
       this defendant did intend to go, and in fact, take the life of Mr. Johnson on this
       occasion and the [c]ourt, the trial court - - I mean the jury could in fact have returned
       a verdict of First Degree Murder.

R. 12-7 at 7-8 (Sentencing Trans., June 7, 2004) (numbering and emphasis added).

       As both the district court and the lead opinion aptly explained, neither the first nor the third

enhancement is at issue; both were properly considered and applied. See, e.g., Williams v. Cook,

No. 3:15-cv-00415, 2018 WL 4621820, at *22 (E.D. Tenn. Sept. 26, 2018).                    The second

enhancement, i.e., Williams’s “previous history of unwillingness to comply with the conditions of

a sentence involving release in the community,” Tenn. Code. Ann. § 40-35-114(9) (2004), is based

on undisputed evidence from the pre-sentence investigation report, which documented that:

(1) Williams was convicted of public intoxication on April 11, 1996 (his third such offense in three

weeks) and placed on 30 days probation; (2) Williams was convicted of driving under the influence

(DUI) just two weeks later, on April 25, 1996; and (3) Williams committed over a dozen additional



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No. 18-6132, Williams v. Hampton


offenses between the April 1996 DUI and the present murder and arson in March 2002, including

a vandalism offense in August 2001 that placed him on probation with the East Tennessee Human

Resource Agency (ETHRA) for an unstated period of time. R. 12-1 at 64-67; PgID 611-14.

Neither this evidence of Williams’s prior offenses nor this contention that the sequence of offenses

shows an “unwillingness to comply” with conditions of a release into the community was

presented to the jury, so the jury was never asked to decide either. Regardless, I cannot agree that

this necessarily invalidates the sentence imposed here for the murder and arson. Even omitting

this second factor altogether, the first and third factors (i.e., the prior convictions and deadly

weapon)—along with the sentencing court’s remark that the jury could have convicted Williams

of first-degree murder—are more than sufficient to support the sentencing decision.

       In Villagarcia v. Warden, Noble Correctional Institution, 599 F.3d 529, 536 (6th Cir.

2010), we expressly “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.” Lovins v. Parker, 712 F.3d 283, 303 (6th Cir. 2013) (quotation marks omitted).

“[I]n cases involving review of a state-court criminal judgment under 28 U.S.C. § 2254, an error

is harmless unless it had substantial and injurious effect or influence,” or “the matter is so evenly

balanced that [we have] grave doubt as to the harmlessness of the error.” Villagarcia, 599 F.3d at

536-37 (quoting Fry v. Pliler, 551 U.S. 112, 116 (2007) (quotation marks and citations omitted).

       Because I cannot conclude that the error here had a substantial and injurious effect or

influence on the sentence and because I do not have a grave doubt as to the harm, I would hold the

error harmless and deny the habeas petition. Therefore, I must respectfully dissent.




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