FILED
NOT RECOMMENDED FOR PUBLICATION Sep 28, 2010
File Name: 10a0627n.06 LEONARD GREEN, Clerk
No. 08-3683
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JASON FLANNERY, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
STUART HUDSON, Warden, ) NORTHERN DISTRICT OF OHIO
)
Respondent-Appellee. )
)
)
BEFORE: MERRITT, ROGERS, and SUTTON, Circuit Judges.
MERRITT, Circuit Judge. Jason Flannery appeals the district court’s denial of his petition
for a writ of habeas corpus. We granted a certificate of appealability as to two issues: (1) whether
the trial court violated the Sixth Amendment by imposing a sentence greater than the maximum
based on fact findings not inherent in the verdict or expressly found by the jury, and (2) whether
Flannery’s appellate counsel was ineffective for failing to raise this argument. This circuit has
answered these questions in the negative in a recent series of cases with facts and procedural
histories that are materially indistinguishable from the instant case. See Baker v. Voorhies, No.
09-3484, 2010 WL 3278228 (6th Cir. Aug. 20, 2010); Henley v. Brunsman, No. 08-3288, 2010 WL
2181804 (6th Cir. June 2, 2010); Carter v. Timmerman-Cooper, No. 08-3535, 2010 WL 2089536
(6th Cir. May 25, 2010); Thompson v. Warden, 598 F.3d 281 (6th Cir. 2010). Although one of us
No. 08-3683
Flannery v. Hudson
has questioned the wisdom of this result, Henley, 2010 WL 2181804, at *4 (Merritt, J., dissenting),
we are now constrained by the overwhelming weight of precedent. We, therefore, AFFIRM the
judgment of the district court.
In January 2003, Flannery was convicted of multiple felonies in an Ohio state court. That
court sentenced him to twenty-eight years of imprisonment pursuant to an Ohio felony-sentencing
statute that required a shorter sentence unless the judge found certain facts. See Ohio Rev. Code §
2929.14(B)(2). Flannery filed a direct appeal to the Ohio Court of Appeals in November 2004. Five
months earlier, the U.S. Supreme Court held that a similar sentencing statute violated the Sixth
Amendment. Blakely v. Washington, 542 U.S. 296 (2004). But Flannery’s appellate counsel failed
to raise a Blakely argument in the Ohio Court of Appeals, which issued its opinion in April 2005.
Flannery did raise that argument in a petition for discretionary review to the Ohio Supreme Court,
but it declined to hear his case in August 2005. Several months later, after Flannery’s conviction
became final, the Ohio Supreme Court applied Blakely to invalidate the statute under which Flannery
was sentenced. State v. Foster, 845 N.E.2d 470 (2006). Flannery then petitioned for habeas relief.
Flannery’s arguments are foreclosed by the precedent of this circuit. His Blakely claim is
procedurally defaulted because he did not raise it at the Ohio Court of Appeals. See Thompson, 598
F.3d at 285 (holding petitioner’s Blakely claim was procedurally defaulted when he raised it at Ohio
Supreme Court but not Ohio Court of Appeals). His claim that his appellate counsel was
constitutionally ineffective, if successful, would establish cause and prejudice to excuse this default.
Beuke v. Houk, 537 F.3d 618, 631 (6th Cir. 2008). But Flannery cannot show that his appellate
counsel’s performance was deficient for failing to raise the Blakely claim. At the time his direct
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No. 08-3683
Flannery v. Hudson
appeal was pending at the Ohio Court of Appeals, several districts of that court had recently held that
Blakely did not apply to Ohio’s sentencing scheme. See Thompson, 537 F.3d at 286–87 (collecting
cases). More importantly, the Fifth District — the very court in which Flannery’s appeal was
pending — had just rejected the same Blakely argument. State v. Iddings, No. 2004CAA06043,
2004 WL 3563921, at *1–4 (Ohio Ct. App. 5th Dist. Nov. 8, 2004). Because Flannery’s appellate
counsel could have reasonably concluded that the Blakely argument would be unsuccessful, he was
not constitutionally ineffective. See Baker, 2010 WL 3278228, at *3–6; Henley, 2010 WL 2181804,
at *2–3; Carter, 2010 WL 2089536, at *3. Thompson, 598 F.3d at 284-85. Flannery cannot use
ineffective assistance of counsel as cause to excuse his procedural default, nor can he prevail on it
as a freestanding claim for relief.
The precedent of this circuit is clear. He defaulted his Blakely claim by failing to raise it to
the Ohio Court of Appeals, and he cannot show that his appellate counsel was ineffective because
the Ohio courts in which his case was pending clearly rejected the Blakely argument at the time. As
a result, we must affirm the judgment of the district court. We also deny the pending motion to
appoint counsel.
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