                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0334n.06

                                            No. 08-3288                                     FILED
                                                                                        Jun 02, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


                                                   )
BRIAN D. HENLEY,                                   )
                                                   )
        Petitioner-Appellant,                      )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
TIM BRUNSMAN, Warden                               )    SOUTHERN DISTRICT OF OHIO
                                                   )
        Respondent-Appellee.                       )
                                                   )


Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Brian D. Henley appeals

pro se the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. Of the multiple grounds for relief claimed in the petition, only one is at issue in this appeal:

Henley’s claim that his appellate counsel was constitutionally ineffective for failing to argue that his

trial counsel erred in not objecting to Henley’s sentence as violating Blakely v. Washington, 542 U.S.

296 (2004). For the following reasons, we affirm the district court’s decision.

                                                   I.

        The underlying facts, as recounted in the Magistrate Judge’s Report and Recommendation,

are undisputed. Henley v. Moore, No. 07-cv-031, 2007 WL 4884107 (S.D. Ohio June 27, 2007).

On September 28, 2004, Henley was convicted by a jury in Montgomery County, Ohio of one count

of kidnapping, four counts of rape, two counts of felonious assault, and one count of attempted
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felonious assault. Id. at *2. On October 29, 2004, the state trial court sentenced him to a total prison

term of twenty-two years and found him to be a sexual predator. Id. At the sentencing hearing, the

court made findings on the record supporting greater than minimum sentences, consecutive

sentences, and maximum sentences. Id.

       On November 18, 2004, Henley timely sought review by the Second District Court of

Appeals, Montgomery County, Ohio challenging the trial court’s evidentiary rulings, sexual predator

designation, and the sufficiency of the evidence supporting his convictions. He also argued that his

sentence violated Blakely. On November 18, 2005, the state appellate court affirmed Henley’s

convictions. State v. Henley, No. 20789, 2005 Ohio App. LEXIS 5531 (Ohio Ct. App. Nov. 18,

2005). That court refused to consider the Blakely claim because Henley had not raised it at his

sentencing. Id. at **22 (citing State v. Austin, No. 20445, 2005 Ohio App. LEXIS 1043 (Ohio Ct.

App. Mar. 11, 2005)). On December 7, 2005, Henley pro se appealed to the Ohio Supreme Court

and on March 8, 2006, that court declined to hear the case. State v. Henley, 846 N.E.2d 536 (Ohio

2006). Henley unsuccessfully sought a writ of certiorari from the United States Supreme Court.

Henley v. Ohio, 549 U.S. 912 (2006). On January 31, 2006, he moved to reopen his appeal in the

Ohio Court of Appeals based on the ineffectiveness of his appellate counsel in failing to raise trial

counsel’s ineffectiveness at sentencing. On April 10, 2006, that court found that Henley’s appellate

counsel was not ineffective and denied his motion. On July 5, 2006, the Ohio Supreme Court

dismissed Henley’s subsequent appeal from that decision. See State v. Henley, 850 N.E.2d 73 (Ohio

2006). Henley was also unsuccessful in pursuing an ineffective assistance of trial counsel claim

through a post-conviction petition in the state trial court.

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        On January 31, 2007, Henley filed a petition for a writ of habeas corpus in federal district

court, asserting claims for ineffective assistance of appellate counsel (and trial counsel), trial court

error, and insufficient evidence. Henley, 2007 WL 4884107, at *4. The district court, adopting the

Magistrate Judge’s Report and Recommendation in part, dismissed the petition on February 5, 2008.

The district court granted Henley a Certificate of Appealability (“COA”) with respect to one issue:

whether Henley’s appellate counsel was constitutionally ineffective for failing to claim on direct

appeal that his trial counsel rendered ineffective assistance by failing to object to his sentence under

Blakely when Henley was sentenced several months after Blakely but before the Ohio Supreme Court

applied that decision to the state’s sentencing regime. Henley v. Moore, No. 07-cv-031, 2008 WL

341362, at *2 (S.D. Ohio Feb. 5, 2008). Henley timely appealed and we declined to expand the

COA.

                                                  II.

        In a habeas case, we review the district court’s legal conclusions de novo and its factual

findings for clear error. Dyer v. Bowlen, 465 F.3d 280, 283–84 (6th Cir. 2006). Under The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the writ may not issue unless

the state court proceedings 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 “a decision that was based upon 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). Under subsection

(d)(1), “a federal court must find a violation of law ‘clearly established’ by holdings of the Supreme

Court, as opposed to its dicta, as of the time of the relevant state court decision.” Miller v. Francis,

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269 F.3d 609, 614 (6th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Also, a

state court unreasonably applies federal law if it “identifies the correct governing legal principle .

. . but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at

412.

       Henley argues that on direct appeal, his appellate counsel should have contended that his trial

counsel was constitutionally ineffective by failing to raise Blakely at sentencing. Henley was

“entitled to effective assistance of counsel in connection with [his] first appeal of right.” Joshua v.

DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). To succeed on a claim of ineffective assistance of

counsel, Henley must show: (1) counsel’s performance was deficient; and (2) this deficient

performance prejudiced him. Nichols v. United States, 563 F.3d 240, 248–49 (6th Cir. 2009) (en

banc) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). An attorney’s performance is

deficient if it falls “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

The Court must “indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. Deficient performance is prejudicial where “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Appellate counsel cannot be ineffective “for a failure

to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).

       We recently decided a case in a nearly identical procedural posture in Benning v. Warden,

Lebanon Correctional Institution, 345 F. App’x 149 (6th Cir. 2009). In Benning, the petitioner was

sentenced on September 22, 2004, three months after the Supreme Court decided Blakely. Id. at 156.

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At that time, most Ohio appellate courts had concluded that Blakely did not affect the state’s

sentencing regime. Id. at 157. The Ohio Supreme Court ultimately applied Blakely on February 27,

2006, and severed the unconstitutional portions of the state’s felony sentencing statutes. State v.

Foster, 845 N.E.2d 470 (Ohio 2006). The key question in Benning was “whether it was reasonable

[for Benning’s attorney] to fail to make a Blakely objection on September 22, 2004.” 345 F. App’x

at 157.

          We held that Benning’s trial counsel was not constitutionally ineffective because the “[t]he

law was rapidly changing . . . and the impact of Blakely was far from certain” and, thus, “resolution

of the issue was ‘not clearly foreshadowed’ at the time of trial.” Id. (quoting Lucas v. O’Dea, 179

F.3d 412, 420 (6th Cir. 1999)). “Although prudent counsel would have preserved a Blakely claim

under these circumstances, counsel’s failure to anticipate that Foster would overrule binding [state

intermediate appellate court] precedent was not constitutionally unreasonable.” Id. Thus, Benning’s

case was not “one of those ‘rare cases’ for finding ineffective assistance because [trial counsel] failed

to anticipate a development in the law.” Id. (alteration in original) (quoting Lucas, 179 F.3d at 420).

We concluded, “Because trial counsel was not ineffective, it follows that appellate counsel cannot

be ineffective for failing to raise ineffective assistance of trial counsel on direct appeal.” Id.

Ultimately, Benning was granted a conditional writ of habeas corpus directing Ohio to resentence

or release him because his appellate counsel failed to raise Blakely on direct appeal. Id. at 159. By

that time, Ohio courts had started to apply Blakely to invalidate sentences and we noted that “if

[appellate] counsel had briefed the Blakely issue, Benning would have been entitled to a remand for

resentencing under Foster.” Id. at 158.

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       The procedural posture of this case, especially the timing of Henley’s sentencing, is

indistinguishable from Benning and the reasoning of that case justifies affirming the district court

here. Henley was sentenced on October 29, 2004, a little more than a month after Benning was

sentenced. As the Benning Court emphasized, Ohio courts did not begin applying Blakely to

invalidate sentences until March 2005. Id. at 158. Indeed, as of Henley’s sentencing, Blakely had

not been applied by the Second Appellate District. In State v. Sour, the defendant was convicted of

multiple counts of aggravated robbery and robbery and the trial judge sentenced him to consecutive

sentences that resulted in an aggregate eighteen-year sentence. No. 19913, 2004 Ohio App. LEXIS

3689, at **2 (Ohio Ct. App. July 30, 2004). The court “considered and rejected the possibility that

[Blakely] might impact the propriety of Sour’s sentence.” Id. at **3–4. In Foster, the Ohio Supreme

Court cited Sour as one of the cases in which “[m]ost Ohio appellate courts have determined that

Blakely is inapplicable” to the state’s sentencing regime. 845 N.E.2d at 488 and n.82. Thus, as 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 did not constitute ineffective assistance of

counsel.1 Because his trial counsel was not ineffective, Henley’s appellate counsel did not err by not

raising the ineffectiveness of trial counsel on direct appeal.

                                                 III.

       For the foregoing reasons, we affirm the district court’s decision.



       1
        This case is unlike Benning only in that Henley’s appellate counsel did make a Blakely claim
on direct review, albeit unsuccessfully. Henley, 2005 Ohio App. LEXIS 5531, at **22. However,
the conduct of appellate counsel on that issue is not before us now.

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       MERRITT, Circuit Judge, dissenting. We do not need to rely on the habeas statutory

language to know that the federal law in habeas cases is “determined by the Supreme Court of the

United States” and must be followed by state courts as well as federal courts after the Supreme Court

speaks. 28 U.S.C. § 2254(b)(1). We learned this simple principle the first year in law school.

Unfortunately, the majority resists applying it in this case.

       Thus, the majority holds that it was not ineffective assistance of counsel when Henley’s

lawyer failed to raise and rely on Blakely v. Washington, decided four months before Henley was

sentenced. The application of the Blakely case would have forbidden the Ohio courts from using the

“sexual predator” designation to enhance the sentence because the jury in Henley’s case had not so

found. Its Blakely application would have significantly reduced Henley’s 22-year sentence.

Henley’s counsel was guilty of ineffective assistance of counsel for not raising it in order to protect

his client from an unnecessarily long sentence.

       I disagree with the majority that the new rule of Blakely runs in favor of Henley only after

the date on which the Ohio courts recognized and applied it in their sentencing scheme rather than

after Blakely itself was decided. Henley’s counsel had a clear duty to raise Blakely at sentencing and

was ineffective for failing to do so. We should not need to be reminded of the elementary principle

that generally we may not “require attorneys to foresee changes in the law [but] once a change —

particularly an important and relevant change — does come about, we do expect counsel to be aware

of it.” Ballard v. United States, 400 F.3d 404, 408 (6th Cir. 2005) (holding that Apprendi v. New

Jersey, 530 U.S. 466 (2000), must be immediately applied and the failure of counsel to raise the

issue on appeal was ineffective assistance of counsel). Blakely was an important change for it

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ameliorates unnecessarily long sentences based on an authoritarian judge’s sentencing enhancement

policies. It gives the defendant the right to a jury trial on the elements of the crime that produce his

sentence. Our court should not resist applying very clear law in an unpublished opinion based on

another unpublished opinion that was simply wrongly decided.




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