Derry Lovins v. Tony Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0082p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

DERRY LOVINS,

-

Petitioner-Appellant,

-

-

No. 11-5545

v.

,

>

-

Respondent-Appellee. -

TONY PARKER, Warden,

N

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:08-cv-2706—Jon Phipps McCalla, Chief District Judge.

Argued: November 27, 2012

Decided and Filed: March 28, 2013

Before: CLAY and STRANCH, Circuit Judges; BELL, District Judge*

_________________

COUNSEL

ARGUED: Ryan T. Holt, SHERRARD & ROE, PLC, Nashville, Tennessee, for

Appellant. Brent C. Cherry, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,

Nashville, Tennessee, for Appellee. ON BRIEF: Ryan T. Holt, SHERRARD & ROE,

PLC, Nashville, Tennessee, for Appellant. Brent C. Cherry, OFFICE OF THE

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. After a Tennessee state court jury convicted

petitioner Derry Lovins of second-degree murder, the state trial court judge made

additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three

*

The Honorable Robert Holmes Bell, United States District Judge for the Western District of

Michigan, sitting by designation.

1

No. 11-5545 Lovins v. Parker Page 2

years based on those findings. In this petition for a writ of habeas corpus under

28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the three-

year sentence enhancement was unconstitutional under the rule of Blakely v.

Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts

that were not found by a jury. The history of Lovins’s requests for relief in state court

is byzantine, but the legal principles are not. Lovins’s direct appeal was not final until

almost three years after the Blakely decision, and therefore Blakely applies to his case

under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314

(1987), and Teague v. Lane, 489 U.S. 288 (1989). For this reason, and because the

procedural default doctrine does not bar our review of the merits of Lovins’s Blakely

claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT

a writ of habeas corpus on the Blakely sentencing claim only. We AFFIRM the district

court’s denial of relief on all of Lovins’s other claims.

I. OVERVIEW

A. Factual background

The facts that led to Lovins’s conviction are largely uncontested. On December

4, 2001, Lovins was driving a van with four passengers, and Geoffrey Burnett was

driving a car with two passengers. In an encounter on a street in Dyersburg, Tennessee,

Lovins used a .357 handgun to fire two shots at Burnett’s car, killing Burnett. Lovins

later turned himself in.

At trial, Lovins was represented by retained counsel Charles Agee, and he

pursued a self-defense strategy. Lovins presented two witnesses who testified that

Burnett had told them he was going to kill Lovins that day. One of those witnesses was

Burnett’s girlfriend. She testified that Burnett stated to her on the day of the murder that

he was going to get a gun, and she understood him to mean he was going to get the gun

“to take care of a problem” he was having with Lovins. State v. Lovins, No. W2003-

00309-CCA-R3-CD, 2004 WL 224482, at *4–5 (Tenn. Crim. App. Feb. 4, 2004)

(“Lovins I”).

No. 11-5545 Lovins v. Parker Page 3

Lovins called two additional witnesses who testified that Burnett was a

dangerous individual who had been involved in shootings previously. Lovins attempted

to procure testimony from one of these witnesses, Kim Floyd, to show Burnett had been

involved in a shooting that resulted in the death of Floyd’s two-year-old child. Though

the trial court limited Floyd’s direct testimony, the testimony presented contained

sufficient information for the jury to infer what had happened. Floyd testified that her

child had been killed “at the hands of a couple people that’s involved with this case.”

Later, the court allowed Lovins to testify that Floyd told him Burnett “was thought to

have been involved in a homicide involving her family.”

The State presented testimony from a passenger in Burnett’s vehicle; testimony

from various police witnesses; forensic and autopsy results; and physical evidence

recovered from the vehicles. A police investigator testified that he recovered three .357

bullets and a single brown work glove from Lovins’s vehicle. An envelope containing

the evidence was admitted without objection, but Lovins now alleges that the State did

not properly disclose this evidence during pretrial discovery.

On August 22, 2002, the jury found Lovins guilty of second-degree murder.

B. Sentencing

In determining Lovins’s sentence, the trial court applied a procedure that the

Tennessee Supreme Court later acknowledged to be unconstitutional under Blakely. The

judge followed the Tennessee sentencing rules then set forth in Tennessee’s Criminal

Sentencing Reform Act of 1989. See Tenn. Code. Ann. § 40-35-210 (2000).1 Section

40-35-210 instructed the court first to determine the appropriate range of the sentence,

stating that “[t]he presumptive sentence for a Class A felony shall be the midpoint of the

range if there are no enhancement or mitigating factors.” § 40-35-210(c). If a judge

found enhancement factors, the sentence could be increased. § 40-35-210(d).

1

Section 40-35-210 was amended in 2005. See Act of June 7, 2005, ch. 353, 2005 Tenn. Pub.

Acts 788. References that follow are to the version of the statute prior to this amendment.

No. 11-5545 Lovins v. Parker Page 4

At this point, a short primer on Blakely is necessary to understand the parties’

arguments. The relevant United States Supreme Court precedent begins with Apprendi

v. New Jersey, which 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).

Four years later, in Blakely, the Court clarified that the definition of “‘statutory

maximum’ for Apprendi purposes is not the high-end that a sentence may not exceed,

but rather the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. A

year later, the Court clarified that the Apprendi/Blakely rule applies to the federal

sentencing guidelines. United States v. Booker, 543 U.S. 220, 226–27 (2005).

In its first encounter with Blakely, the Tennessee Supreme Court determined that

the rule did not necessarily invalidate § 40-35-210. State v. Gomez, 163 S.W.3d 632,

661 (Tenn. 2005) (“Gomez I”). The defendants in Gomez I, however, filed a petition for

certiorari to the United States Supreme Court. On January 27, 2007, the Court

invalidated California’s sentencing procedure, which was virtually identical to

Tennessee’s. Cunningham v. California, 549 U.S. 270 (2007). On February 20, the

Supreme Court vacated Gomez I and remanded the case to the Tennessee Supreme Court

for consideration in light of Cunningham. Gomez v. Tennessee, 549 U.S. 1190 (2007).

On remand, the Tennessee Supreme Court acknowledged that § 40-35-210 “violated the

Sixth Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and

Cunningham.” State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”).

At the time Lovins was sentenced, however, the Supreme Court had not yet

decided Blakely. Pursuant to § 40-35-210, the judge determined that the range for

Lovins would be fifteen to twenty-five years and therefore the presumptive sentence

would be twenty years. He then, without the assistance of a jury, found the existence of

four aggravating factors and the absence of any mitigating factors. He found that Lovins

(1) had a history of criminal convictions or behavior, (2) had a history of unwillingness

to comply with conditions of release, (3) possessed a firearm during the commission of

No. 11-5545 Lovins v. Parker Page 5

his offense, and (4) showed no hesitation about committing a crime with a high risk to

human life. Based on these findings, the judge increased Lovins’s sentence from twenty

to twenty-three years in prison. Lovins’s counsel did not object to the sentencing

methodology by, for example, alleging that it violated Apprendi.

C. Direct and postconviction review

Though Lovins was sentenced in 2002, direct review of his conviction and

sentence did not ultimately become final until 2007—nearly three years after the Blakely

decision. The procedural history was unusual, however, because Lovins’s counsel at

first failed to file an application for permission to appeal on direct review to the

Tennessee Supreme Court. Then, only after Lovins had filed a pro se motion for

postconviction relief, the Tennessee Court of Criminal Appeals determined that his

counsel’s failure constituted ineffective assistance and re-opened Lovins’s direct review

to allow the filing. As a result of this intertwined direct and postconviction review, the

Tennessee Supreme Court did not finally deny relief on Lovins’s direct appeal until

March 5, 2007.

In Lovins’s initial and unsuccessful direct appeal to the Court of Criminal

Appeals, he presented only one argument: that the evidence was insufficient to support

a conviction for second-degree murder. The Court of Criminal Appeals denied relief on

this claim on February 4, 2004. When Lovins later filed his request for postconviction

relief, however, he significantly expanded his allegations of error. He framed his request

for state postconviction relief as a claim of ineffective assistance of trial and appellate

counsel, arguing that his counsel had (1) failed to appeal the exclusion of Kim Floyd’s

testimony about Burnett’s role in the death of her daughter, (2) failed to appeal the

“length of the sentence and the application of enhancement factors,” and (3) failed to file

the request for permission to appeal to the Tennessee Supreme Court, among other

failures. The petition also noted that the prosecution had failed to disclose the physical

evidence that was introduced at trial.

The trial court held a postconviction relief hearing and denied relief on all claims

in a June 2, 2005 order that noted Lovins was alleging a “Blakely violation.” The trial

No. 11-5545 Lovins v. Parker Page 6

court, however, found no constitutional violation “pursuant to the recent Tennessee

Supreme Court decision in [Gomez I],” in which the Tennessee sentencing procedure

was held not to violate Blakely. Lovins appealed.

The Court of Criminal Appeals then delivered two separate rulings on

postconviction relief. First, the court held that Lovins’s trial counsel, Agee, had

“unilaterally terminated” Lovins’s direct appeal. As a result, the court found that Lovins

was “entitled to seek a delayed Rule 11 application to appeal to the Tennessee Supreme

Court” under Tennessee Supreme Court Rule 28, § 9(D)(2)(b)(i).2 The Court of

Criminal Appeals therefore vacated its original direct appeal order from February 4,

2004, and “reinstate[d]” it as of November 3, 2006, to allow Lovins to seek review by

the Tennessee Supreme Court of his direct appeal. R. 18-1 at PageID #4. In the

meantime, the court stayed the remaining postconviction proceedings. Id.; see Gibson

v. State, 7 S.W.3d 47, 49 (Tenn. Crim. App. 1998) (noting that a petition for

postconviction relief “may not be maintained while a direct appeal of the same

conviction and sentence is being prosecuted”).

Though Lovins had been appointed new counsel for his petition for

postconviction relief, the Court of Criminal Appeals instructed Lovins’s direct appeal

counsel, Agee, to file this application for permission to appeal on direct review. In the

application, despite the fact that Lovins had raised several additional constitutional

claims in his motion for postconviction relief, Agee again only presented one question

for review: whether the evidence had been sufficient to convict. On March 5, 2007, with

a bare form order, the Tennessee Supreme Court denied the request for leave to appeal.

Lovins did not file a petition for writ of certiorari to the United States Supreme Court.

2

Rule 28, § 9(D) empowers trial courts and the Tennessee Court of Criminal Appeals hearing a

petition for postconviction relief to enter an order “granting the petitioner a delayed appeal” from a

judgment entered on direct review of the petitioner’s conviction and sentence. See Stokes v. State,

146 S.W.3d 56, 61 (Tenn. 2004) (noting that such a delayed appeal is available to petitioners for unilateral

termination of their direct appeal, though not for termination of a postconviction appeal). Once a delayed

appeal is granted, and the proper Rule 11 application is filed, “the Appellate Court Clerk shall immediately

reinstate the original appeal on the docket” and the appeal then proceeds as it would otherwise have on

direct review under Rule 11. Tenn. Sup. Ct. R. 28, § 9(D)(2)(b)(iii). “Where a delayed appeal is granted

and the petitioner is unsuccessful on appeal, and new issues cognizable in a post-conviction proceeding

result from the handling of the delayed appeal, the petitioner may amend the original post-conviction

petition to include such new issues.” Id. §9(D)(3)(a).

No. 11-5545 Lovins v. Parker Page 7

After the original appeal had been reinstated and was finally completed, the

Court of Criminal Appeals resumed the postconviction process and filed a second

opinion and order denying postconviction relief on all of Lovins’s claims. In that

September 14, 2007 order, the court did not state that any of Lovins’s claims were

defaulted for state-law procedural reasons. Instead, it addressed and dismissed each

claim on the merits.

On the Blakely claim, the Court of Criminal Appeals noted that the United States

Supreme Court had recently vacated the State v. Gomez decision (Gomez I) on which the

trial court had predicated its conclusion that no Blakely violation had occurred.

Nonetheless, the Court of Criminal Appeals denied relief on the claim, stating that

Blakely was not applicable to cases on collateral review. Because this is the last

reasoned state-court decision on the Blakely issue, we reproduce the relevant language

in full below:

In Blakely, the United States Supreme Court concluded that the

“‘statutory maximum’ for Apprendi [v. New Jersey, 530 U.S. 466

(2000),] 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.” Blakely, 542 U.S. at 303. Subsequent to that decision, our

supreme court decided State v. Gomez, in which a majority of the court

concluded that, unlike the sentencing scheme in Blakely, “Tennessee’s

sentencing structure does not violate the Sixth Amendment.” Gomez,

163 S.W.3d at 661. However, the United States Supreme Court recently

vacated our supreme court’s ruling in Gomez and remanded the case for

reconsideration in light of its recent decision in Cunningham v.

California, 549 U.S. ----, 127 S. Ct. 856 (2007). Thus, we no longer

follow Gomez given the Supreme Court’s instruction. State v. James A.

Mellon, No. E2006-00791-CCA-R3-CD, 2007 WL 1319370, *9 (Tenn.

Crim. App., at Knoxville, May 7, 2007) (no Tenn. R. App. 11 application

filed). In the present case, Petitioner raised the issue in a collateral

attack. This Court has previously held that retrospective application of

the rule announced in Blakely is not applicable to cases on collateral

review. Roy Allen Burch v. State, No. E2004-02365-CCA-R3-PC, 2005

WL 1584379, *2 (Tenn. Crim. App., at Knoxville, July 7, 2005) (no

Tenn. R. App. P. 11 application filed) (citing Isaac Lydell Herron v.

State, No. W2004-02533-CCA-R28-PC (Tenn. Crim. App., at Jackson,

Nov. 22, 2004)). Petitioner is not entitled to relief on this issue.

No. 11-5545 Lovins v. Parker Page 8

Lovins v. State, No. W2005-01446-CCA-R3-PC, 2007 WL 2700097, at *12 (Tenn. Crim.

App. Sept. 14, 2007) (“Lovins II”). Lovins filed an application for permission to appeal

that postconviction ruling to the Tennessee Supreme Court, but the application was

denied. He then filed a motion to recall the mandate of the Tennessee Supreme Court

and requested leave to file a petition for extraordinary review of the Blakely claim, but

that motion was denied as well.

This habeas case requires a review of the retroactivity reasoning of the Court of

Criminal Appeals—the last state court to enter a reasoned decision on Lovins’s Blakely

claim. And the focus of this inquiry will necessarily be on the timing of each of the

preceding state-court decisions. We recognize that it can be difficult to distill the

temporal relationship from the above narrative and thus (at the risk of repetition) include

below a time-line of the state-court decisions in Lovins’s case:

# September 17, 2002: Sentencing. State trial court finds additional facts

and enhances Lovins’s sentence from 20 to 23 years.

# February 4, 2004: Direct appeal. Conviction and sentence affirmed on

direct appeal by the Tennessee Court of Criminal Appeals.

# June 24, 2004: U.S. Supreme Court decides Blakely v. Washington.

# June 2, 2005: Postconviction review. State trial court recognizes that

Lovins has alleged a Blakely violation, but denies relief.

# November 3, 2006: Postconviction review. Court of Criminal Appeals

finds ineffective assistance of counsel and “reinstate[s]” its February 4,

2004 judgment, in order to allow the direct appeal to be re-opened.

# March 5, 2007: Direct appeal. Tennessee Supreme Court denies

Lovins’s application for permission to appeal on his re-opened direct

review.

# September 14, 2007: Postconviction review. Court of Criminal

Appeals acknowledges the Tennessee sentencing procedures likely

violated Blakely, but still denies relief on Lovins’s postconviction

Blakely claim based on a retroactivity analysis. This is the last reasoned

state court decision.

The key relationship, as discussed below, is between Lovins’s direct appeal and

Blakely—which was decided nearly three years before Lovins’s re-opened direct appeal

No. 11-5545 Lovins v. Parker Page 9

ultimately became final. In the end, despite this unusual procedural history, both the

Court of Criminal Appeals and the Tennessee Supreme Court denied postconviction

relief.

D. Federal habeas

Having exhausted his state court postconviction appeals, Lovins filed a federal

petition for habeas corpus. In that petition, Lovins again alleged, among other claims,

(1) his Blakely claim, (2) the claim based on exclusion of Floyd’s testimony, and (3) his

claim based on the State’s failure to disclose the physical evidence prior to trial. He also

alleged a claim of ineffective assistance of trial and appellate counsel as “cause” to

excuse any procedural default of his Apprendi/Blakely claim. The district court granted

summary judgment to the State on all claims. We granted a certificate of appealability.

Now, on appeal, Lovins maintains his allegations of state-court trial error, but he

devotes his briefing and oral argument almost entirely to the Blakely sentencing claim.

He argues that the Tennessee state courts and the federal district court have improperly

analyzed the question of whether Blakely applies retroactively to his case. In response,

the State does not challenge Lovins’s argument that the sentencing procedure employed

in his case now violates the Sixth Amendment, nor does it challenge the argument that

Lovins’s direct appeal became final three years after Blakely was published. Instead, the

State argues that the Court of Criminal Appeals and the district court were correct that

Blakely does not apply retroactively to cases on collateral review. In any event, the State

argues, no sentencing issue was ever raised on direct appeal for the Tennessee courts to

consider. Though the State did not use the term “procedural default” in its briefing, the

State clarified at oral argument that it believes Lovins procedurally defaulted his Blakely

claim by failing to raise it at the appropriate time on direct review.

II. STANDARD OF REVIEW

Where a district court denies a federal habeas corpus petition, we review the

district court’s legal conclusions de novo and its factual findings under a “clearly

erroneous” standard. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010).

No. 11-5545 Lovins v. Parker Page 10

We review the merits of Lovins’s claims—including his Blakely claim—pursuant

to the deferential standard of review Congress mandated in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), which provides

that:

[a]n 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).

“Clearly established federal law,” for the purposes of § 2254(d)(1), refers to

rulings of the United States Supreme Court in place at the time of “the last state-court

adjudication on the merits.” Greene v. Fisher, 132 S. Ct. 38, 44 (2011). A decision is

“contrary to” clearly established federal law under § 2254(d)(1) if “the state court arrives

at a conclusion opposite to that reached by [the Supreme Court] on a question of law or

if the state court decides a case differently than [the Supreme Court] on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A state-court decision unreasonably applies clearly established federal law if “the

state court identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

“[E]valuating whether a rule application was unreasonable requires considering the

rule’s specificity.” Harrington v. Richter, 131 S. Ct. 770, 786, (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The more general the rule, the

more leeway courts have in reaching outcomes in case-by-case determinations.” Id.

No. 11-5545 Lovins v. Parker Page 11

III. ANALYSIS

A. Blakely claim

“Federal habeas courts reviewing the constitutionality of a state prisoner’s

conviction and sentence are guided by rules designed to ensure that state-court

judgments are accorded the finality and respect necessary to preserve the integrity of

legal proceedings within our system of federalism.” Martinez v. Ryan, 132 S. Ct. 1309,

1316 (2012). In addition to the deferential AEDPA standard of review, these rules

include the judicial doctrines of procedural default and Teague non-retroactivity.

Though the State’s arguments focus almost exclusively on the merits of the last reasoned

state-court decision that denied relief to Lovins, we first address the procedural-default

and Teague defenses.

1. Procedural default

Procedural default is a threshold rule that a court generally considers before

reviewing the applicable law and available remedies in a habeas petition. See Lambrix

v. Singletary, 520 U.S. 518, 524 (1997) (noting that procedural default should

“ordinarily” be considered before retroactivity). The procedural default rule is related

to the statutory requirement that a habeas petitioner must exhaust any available state-

court remedies before bringing a federal petition. See 28 U.S.C. § 2254(b), (c). Both

rules have the purpose of allowing state courts the opportunity to address federal

constitutional claims “in the first instance” before the claims are raised in federal habeas

proceedings. Coleman v. Thompson, 501 U.S. 722, 732 (1991).

We pause before engaging in a procedural default analysis because the State did

not squarely present procedural default as a defense to the Blakely claim in its briefing

before this court. The State did not discuss exhaustion at all and discussed procedural

default only with regard to Lovins’s claims of trial error and his claim of ineffective

assistance of counsel. The most robust treatment of the issue with regard to Lovins’s

Blakely claim consisted of the following paragraph:

No. 11-5545 Lovins v. Parker Page 12

The respondent concedes that Blakely was decided before the Tennessee

Supreme Court denied permission to appeal in the petitioner’s case.

However, the petitioner raised no sentencing issue in his direct appeal to

the Tennessee Court of Criminal Appeals and raised no sentencing issue

in his application to appeal to the Tennessee Supreme Court. The

petitioner seems to argue that the Tennessee Supreme Court was

obligated to raise the issue sua sponte.

Resp. Br. 13. The brief does not use the term “procedural default,” otherwise develop

this argument, or provide any case law in support.

Under similar circumstances, this court has declined to address the procedural

default defense. See Slagle v. Bagley, 457 F.3d 501, 515 (6th Cir. 2006) (“The warden’s

vague assertion of the procedural default defense is not sufficient to bar federal

review.”); see also White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005) (noting that the

procedural default defense is not jurisdictional and therefore “we are not obligated to

raise the issue sua sponte”). Nonetheless, even if the State does waive a procedural

default defense, we may raise it sua sponte. See Howard v. Bouchard, 405 F.3d 459, 476

(6th Cir. 2005). We do so here to clarify the relationship between procedural default,

retroactivity, and AEDPA.

Under the procedural default rule, a federal court acting on a state prisoner’s

habeas petition will not review a question of federal law if the last state-court judgment

denying relief on the claim rests on a procedural state-law ground that is “independent

of the federal question and is adequate to support the judgment.” Coleman, 501 U.S. at

729–30. The rule “has its historical and theoretical basis in the ‘adequate and

independent state ground’ doctrine” that governs direct review of state court cases by the

United States Supreme Court. Harris v. Reed, 489 U.S. 255, 260 (1989) (citing

Wainwright v. Sykes, 433 U.S. 72, 78–79, 81–82, 87 (1977)). “In the absence of the

independent and adequate state ground doctrine in federal habeas, habeas petitioners

would be able to avoid the exhaustion requirement by defaulting their federal claims in

state court.” Coleman, 501 U.S. at 732.

“A claim may become procedurally defaulted in two ways.” Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted

No. 11-5545 Lovins v. Parker Page 13

where state-court remedies have been exhausted within the meaning of § 2254, but

where the last reasoned state-court judgment declines to reach the merits because of a

petitioner’s failure to comply with a state procedural rule. Id. Second, a claim is

procedurally defaulted where the petitioner failed to exhaust state court remedies, and

the remedies are no longer available at the time the federal petition is filed because of

a state procedural rule. Id.

At oral argument, the State repeatedly argued that Lovins procedurally defaulted

on his Blakely claim because he never raised it in state court—implicating the second

type of procedural default. But Lovins did raise his claim in state court: he raised it in

his state-court request for postconviction relief. Claims not exhausted on direct appeal

may be exhausted through a properly raised and appealed application for state

postconviction relief. See Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009); Banks

v. Jackson, 149 F. App’x 414, 418 (6th Cir. 2005). Lovins exhausted his Blakely claim

by raising it in his request for postconviction relief and appealing the initial denial of

relief by the trial court to the Court of Criminal Appeals, thereby “invoking one

complete round of the State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); see Thompson v. Bell, 580 F.3d 423, 433 (6th Cir.

2009) (noting that Tennessee Supreme Court Rule 39 “clarified that litigants need not

appeal criminal convictions or post-conviction relief actions to the Tennessee Supreme

Court to exhaust their appeals”).

Because Lovins exhausted his Blakely claim, the procedural default defense will

only bar our review of the merits of Lovins’s claim if the last reasoned state-court

judgment denying relief on the claim—here, the final postconviction judgment of the

Court Criminal Appeals—rests on a procedural state-law ground that is “independent of

the federal question and is adequate to support the judgment.” Coleman, 501 U.S. at

729–30.

Under the independent and adequate state ground doctrine, a federal habeas claim

is procedurally defaulted when:

No. 11-5545 Lovins v. Parker Page 14

(1) the petitioner fails to comply with a state procedural rule; (2) the state

courts enforce the rule; (3) the state procedural rule is an adequate and

independent state ground for denying review of a federal constitutional

claim; and (4) the petitioner cannot show cause and prejudice excusing

the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc). The second prong of

this test requires that the state courts “actually enforce[]” the state procedural rule in

denying relief. Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir.1986)). In other words, “it is not sufficient that the

state court could have applied a procedural default under state law; it must actually have

done so.” Skipper v. French, 130 F.3d 603, 609 (4th Cir. 1997) (citing Caldwell v.

Mississippi, 472 U.S. 320, 327 (1985)).

In determining whether a state court actually enforced a procedural rule, we

apply the “plain statement” rule of Michigan v. Long, 463 U.S. 1032 (1983). See Harris,

489 U.S. at 263. Because a plain statement is required, “a procedural default does not

bar consideration of a federal claim on either direct or habeas review unless the last state

court rendering a judgment in the case ‘clearly and expressly’ states that its judgment

rests on the procedural bar.” Id.

While the State now requests that we apply the procedural default doctrine to

Lovins’s Blakely claim, it does not and cannot argue that the last Court of Criminal

Appeals decision “clearly and expressly” denied postconviction relief to Lovins based

on a state procedural bar. The final Court of Criminal Appeals decision contains no

express discussion of waiver, procedural default, or of any specific Tennessee procedural

rule.

The decision’s treatment of the Blakely claim consisted entirely of two

statements. First, the decision acknowledged that the United States Supreme Court had

rejected the argument that Tennessee’s sentencing procedures did not violate Blakely.

Second, the decision stated:

In the present case, Petitioner raised the issue in a collateral attack. This

Court has previously held that retrospective application of the rule

No. 11-5545 Lovins v. Parker Page 15

announced in Blakely is not applicable to cases on collateral review. Roy

Allen Burch v. State, No. E2004-02365-CCA-R3-PC, 2005 WL 1584379,

*2 (Tenn. Crim. App. July 7, 2005) (no Tenn. R. APP. P. 11 application

fi l e d ) ( c i t i n g I s aac Lydell Herron v . St at e, No.

W2004-02533-CCA-R28-PC (Tenn. Crim. App. Nov. 22, 2004)).

Petitioner is not entitled to relief on this issue.

Lovins II, 2007 WL 2700097, at *12. In neither of the two Tennessee state court cases

cited here, Burch and Herron, was the question of procedural default relevant. In fact,

those cases applied federal, rather than state, retroactivity rules. See Herron v. State, No.

W2004-02533-CCA-R28-PC, 2004 Tenn. Crim. App. LEXIS 1181 (Tenn. Crim. App.

Nov. 22, 2004). The reference to the retroactivity doctrine, and the citation to these

cases, therefore, cannot be read as “clearly and unambiguously” invoking a state

procedural bar.

In sum, Lovins exhausted his Blakely claim by raising it in his petition for

postconviction relief and related appeals, and the last reasoned judgment in state court

ignored the question of procedural default. Accordingly, because the Tennessee state

courts did not “actually enforce” a state procedural rule in denying Lovins relief, the

procedural default doctrine does not bar federal habeas review of the merits of Lovins’s

Blakely claim.

2. Retroactivity and the merits

Having concluded that the Tennessee state courts did not deny relief to Lovins

based on the invocation of a state procedural rule, we now must consider what the state

courts did instead—and whether and how to apply AEDPA’s standard of review.

The parties agree that the last reasoned state-court opinion on Lovins’s Blakely

claim was the Court of Criminal Appeals decision denying postconviction relief, dated

September 14, 2007. That decision denied relief on the Blakely claim because the court

determined that Blakely was not retroactively applicable to Lovins’s case. The question

of whether a specific rule of law applies retroactively to a case is a natural part of a

decision “on the merits” of a claim. See Greene, 132 S. Ct. at 44 (describing the

retroactivity rules that apply to the merits of habeas claims). When deciding the merits

No. 11-5545 Lovins v. Parker Page 16

of a claim, courts generally consider (1) what law applies to the dispute, and (2) how the

relevant law applies to the specific facts of the dispute. Whether a Supreme Court

decision applies retroactively to a dispute fits comfortably within the first half of this

inquiry.

In the federal habeas context, however, the statutory AEDPA standard for

reviewing a decision on the merits adds a layer of complexity to this analysis. The

Supreme Court has recently clarified that federal habeas courts should treat the

judicially-created Teague bar to retroactivity and the decision of whether a rule was

“clearly established” for the purposes of AEDPA review on the merits as “distinct”

inquiries. Greene, 132 S. Ct. at 44 (quoting Horn v. Banks, 536 U.S. 266, 272 (2002)).

“[N]either abrogates or qualifies the other.” Id.

To begin, therefore, we review the judicially-created law of retroactivity as it

applies to federal constitutional rules of criminal procedure in federal and state

proceedings—and consider whether this common law of retroactivity bars the

application of Blakely in Lovins’s case. We then turn to statutory AEDPA requirements,

under which we review “the last state-court adjudication on the merits” in Lovins’s case

and determine what Supreme Court rulings were applicable at that time, and whether the

state court applied the law in a contrary or unreasonable manner. Greene, 132 S. Ct. at

44–45.

a. Retroactivity in federal habeas proceedings

In federal habeas proceedings, the retroactivity of a new rule of criminal

procedure is governed by the twin Supreme Court cases of Griffith v. Kentucky, 479 U.S.

314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).3 In 1987, the Court settled a long

debate about retroactivity by holding that “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending on direct

review or not yet final.” Griffith, 479 U.S. at 326. Two years later, in Teague, the Court

3

“Although Teague was a plurality opinion that drew support from only four Members of the

Court, the Teague rule was affirmed and applied by a majority of the Court shortly thereafter.” Danforth

v. Minnesota, 552 U.S. 264, 266 n.1 (2008).

No. 11-5545 Lovins v. Parker Page 17

laid down the modern rule of retroactivity for federal habeas proceedings: “[u]nless they

fall within an exception to the general rule, new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the new

rules are announced.” Id. at 310 (plurality opinion). The Teague rule thus “prevents a

federal court from granting habeas corpus relief to a state prisoner based on a rule

announced after his conviction and sentence became final.” Danforth v. Minnesota,

552 U.S. 264, 281 (2008) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)).

A federal court applies the Teague non-retroactivity rule by proceeding in three

steps:

First, the court must ascertain the date on which the defendant’s

conviction and sentence became final for Teague purposes. Second, the

court must survey the legal landscape as it then existed, and determine

whether a state court considering the defendant’s claim at the time his

conviction became final would have felt compelled by existing precedent

to conclude that the rule he seeks was required by the Constitution.

Finally, even if the court determines that the defendant seeks the benefit

of a new rule, the court must decide whether that rule falls within one of

the two narrow exceptions to the nonretroactivity principle.

Caspari, 510 U.S. at 390 (citations and alterations omitted). In Lovins’s case, we do not

need to proceed to the third step of the Teague analysis because it is apparent from the

parties’ arguments about the first two steps that Teague does not bar consideration of

Lovins’s Blakely claim in this federal habeas proceeding.

In the first step, we consider when Lovins’s conviction and sentence became

final. A defendant’s conviction is “final” for the purposes of Griffith and Teague when

the time elapses for filing a petition for writ of certiorari to the United States Supreme

Court from the state’s highest court’s denial of the defendant’s application for review

on direct appeal. See Danforth, 552 U.S. at 267 (citing Caspari, 510 U.S. at 390).

Lovins argues, and the State does not contest, that Lovins’s case became final on June

3, 2007, ninety days after the Tennessee Supreme Court denied his application for

permission to appeal on direct review. See Lovins Br. 20–23; State Br. 13.

No. 11-5545 Lovins v. Parker Page 18

The second prong of the test is dispositive in Lovins’s case. If Lovins’s direct

appeal became final nearly three years after the Supreme Court decided Blakely, then it

also became final four months after the Court decided Cunningham and three months

after the Court vacated the Tennessee Supreme Court’s ruling in Gomez I—in which the

Court plainly rejected the premise that Tennessee’s sentencing scheme did not violate

Blakely. Because Lovins’s direct appeal was still pending at this time, Griffith mandated

that all of these decisions be applied retroactively to his sentencing. The legal landscape

at the time Lovins’s direct appeal became final thus left nothing to the imagination. A

court considering Lovins’s claim “at the time his conviction became final would have

felt compelled by existing precedent to conclude that the rule he seeks was required by

the Constitution.” Caspari, 510 U.S. at 390.

In other words, “Teague’s rule of non-retroactivity . . . applies only ‘to those

cases which have become final before the new rules are announced.’” United States v.

Becker, 502 F.3d 122, 129 (2d Cir. 2007) (emphasis added) (quoting Teague, 489 U.S.

at 310). Teague does not, as the State seems to suggest here, bar collateral relief for a

petitioner whose direct appeal became final after the date on which a new rule of

constitutional law was announced. See Whorton v. Bockting, 549 U.S. 406, 416 (2007)

(considering first whether respondent’s conviction had already become final on direct

review when Crawford was announced, and only proceeding to the rest of the Teague

analysis after determining that it had).

To understand why the State’s preferred reading would be incorrect, one need

not look any further than Teague itself, where the Supreme Court expressly adopted the

view of retroactivity in collateral proceedings that Justice Harlan had advanced in a

series of dissents:

Given the “broad scope of constitutional issues cognizable on habeas . . .

[it is] sounder, in adjudicating habeas petitions, generally to apply the

law prevailing at the time a conviction became final than it is to seek to

dispose of the [habeas] cases on the basis of intervening changes in

constitutional interpretation.”

No. 11-5545 Lovins v. Parker Page 19

Teague, 489 U.S. at 306 (quoting Mackey v. United States, 401 U.S. 667, 689 (1971)

(Harlan, J. dissenting)). Justice Harlan envisioned that habeas courts would apply “the

law prevailing at the time a conviction became final,” id., and the Supreme Court in

Teague expressly adopted this understanding of retroactivity, id. at 310. (“[W]e now

adopt Justice Harlan’s view of retroactivity for cases on collateral review.”).

As Justice Souter helpfully noted in Wright v. West, a post-Teague but pre-

AEDPA case, “[t]he crux of the analysis when Teague is invoked, then, is identification

of the rule on which the claim for habeas relief depends.” 505 U.S. 277, 311 (1992)

(Souter, J., concurring in the judgment). “To survive Teague, it must be ‘old’ enough

to have predated the finality of the prisoner’s conviction . . . .” Id. The consideration

of whether the rule at issue is “old” enough such that its application is not Teague-barred

begins with a bare review of the calendar and comparison of dates. In Lovins’s case, we

are not barred from considering Blakely in this collateral proceeding because Blakely

was announced before Lovins’s conviction became final.

b. Retroactivity in state proceedings

Whether and how the federal rules of retroactivity should be applied in state

proceedings are separate questions. The Supreme Court has clarified that Teague was

a rule that was “tailored to the unique context of federal habeas and therefore had no

bearing on whether States could provide broader relief in their own postconviction

proceedings than required by that opinion.” Danforth, 552 U.S. at 277. The language

of Griffith, meanwhile, leaves no question as to its applicability in state courts: new

federal rules of criminal procedure must be applied retroactively “to all cases, state or

federal, pending on direct review or not yet final.” Griffith, 479 U.S. at 326 (emphasis

added). The “[f]ailure to apply a newly declared constitutional rule to criminal cases

pending on direct review violates basic norms of constitutional adjudication.” Id. at 322.

In Danforth, the Court acknowledged that it is appropriate for states to develop

their own “state law to govern retroactivity in state postconviction proceedings.”

552 U.S. at 289. But the opinion also reiterated the principle that a state’s authority to

make and enforce its own laws exists “as long as they do not infringe on federal

No. 11-5545 Lovins v. Parker Page 20

constitutional guarantees.” Id. at 280. Because the Griffith retroactivity rule draws its

authority from the Constitution, it provides a retroactivity floor that governs the law

applicable on direct review. As a result, a state postconviction court determining what

law should have been applied on direct review may afford greater retroactivity than

Griffith requires (or that Teague allows), but no less. In the criminal context, as in the

civil context, federal law “sets certain minimum requirements that States must meet but

may exceed in providing appropriate relief.” Danforth, 552 U.S. at 288 (quoting Am.

Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 178–79 (1990)).

In the wake of Danforth and Greene, we are left to consider what standard of

review to give to state-court retroactivity determinations. Prior to those two cases, we

held that federal habeas courts should review state Teague inquiries under the deferential

§2254(d) standards accorded to determinations on the merits. See Henley v. Bell,

487 F.3d 379, 385 (6th Cir. 2007) (noting AEDPA deference would apply to a state

court’s determination of retroactivity). Both parties in this case assume that §2254(d)

should continue to apply to those determinations, and we agree—at least to the extent

that the state-court determination appears to depend on an interpretation of Griffith or

Teague, as opposed to an independent and more forgiving state-law retroactivity

standard.

c. The Tennessee Court of Criminal Appeals decision

We turn now to the last reasoned state-court decision in Lovins’s case—the

September 14, 2007 postconviction decision of the Court of Criminal Appeals. As the

basis for the conclusion that Blakely did not apply retroactively in Lovins’s case, the

decision cited a prior unpublished opinion of that court, Burch, 2005 WL 1584379, at

*2, for the core retroactivity rule—and specifically cited to Burch’s reference to another

unpublished case, Herron, 2004 Tenn. Crim. App. LEXIS 1181. To understand the

reasoning of the court’s decision in Lovins’s case, therefore, we look to the retroactivity

reasoning in Herron.

In Herron, which pre-dated any consideration of Blakely by the Tennessee

Supreme Court, the petitioner had filed a motion to re-open a request for state

No. 11-5545 Lovins v. Parker Page 21

postconviction relief after Blakely was published. This motion came almost twenty years

after the petitioner’s conviction had become final. While the Herron court

acknowledged that Tennessee has created a separate retroactivity determination for state

constitutional rules, Herron, 2004 Tenn. Crim. App. LEXIS 1181, at *13 n.6, the court

identified Griffith and Teague as governing the retroactivity analysis with regard to the

federal constitutional rule announced in Blakely, id. at *12–13. Because Herron’s case

was no longer pending on direct review at the time Blakely was announced, Griffith did

not mandate the retroactive application of Blakely. Thus, after determining that the rule

in Blakely did not fit into either of the two narrow Teague exceptions, the Herron court

concluded that Blakely was not retroactively applicable to the petitioner’s case on

collateral review.

We find no fault with the analysis in Herron, but we do find fault with how the

Court of Criminal Appeals applied that analysis in Lovins’s case. The factual distinction

between the two cases causes the Griffith/Teague analysis articulated in Herron to

produce a different result for Lovins. When Blakely was decided, Lovins’s case was not

yet final, but Herron’s conviction had been final for decades. Unlike Herron’s claim,

Lovins’s Blakely claim is therefore available under Griffith and not barred by Teague.

By holding otherwise, the Court of Criminal Appeals misconstrued the federal Teague

standard and infringed the federal constitutional Griffith guarantee.

In denying federal habeas relief to Lovins, the district court made a similar

mistake. The district court cited our decision in Humphress v. United States, 398 F.3d

855, 860 (6th Cir. 2005), for the proposition that ‘Blakely is not retroactively applicable

to cases on collateral review.’ In Humphress, however, we followed the three-step

Teague analysis elaborated above. 398 F.3d at 860. Humphress’s conviction had

become final in January 2000, several months prior to Apprendi, over four years prior

to Blakely, and five years prior to the Booker decision extending Blakely to the federal

sentencing guidelines. To determine whether the rule in Blakely/Booker was “new,” the

Humphress panel then surveyed the legal landscape as of January 2000 to see if the rule

was “dictated by precedent” at that time and concluded correctly that it was not. Id. at

No. 11-5545 Lovins v. Parker Page 22

860–61. Of course, the outcome of this second prong of the Teague analysis is entirely

different where—as in Lovins’s case—a Supreme Court decision has resolved the

precise legal question at issue prior to the date at which the defendant’s direct review

became final. In such a case, barring some relevant factual distinction, there is no

question that the rule is “dictated by precedent.”

In applying the deferential § 2254(d) standard of review here, we consider the

rulings of the United States Supreme Court in place at the time of “the last state-court

adjudication on the merits.” Greene, 132 S. Ct. at 44. We therefore consider Supreme

Court jurisprudence as it existed on September 14, 2007, the date the Court of Criminal

Appeals decided Lovins’s case. As of that date, Blakely had been decided, Cunningham

had been decided, and the United States Supreme Court had vacated the Gomez I

decision in which the Tennessee Supreme Court had held that its sentencing regime

satisfied Blakely. Thus, when the Court of Criminal Appeals rendered the last reasoned

state-court decision in 2007, there is no question (and the State does not contest) that

Blakely was clearly established federal law.

While the AEDPA standard of review is a high bar, the application of the

Griffith/Teague retroactivity analysis here does not indicate that courts could reasonably

come to different conclusions. Like Blakely, Griffith was clearly established federal law

at the time of the decision by the Court of Criminal Appeals. See Williams, 529 U.S. at

412 (explaining that “‘clearly established Federal law’ in § 2254(d)(1) ‘refers to the

holdings . . . of [the Supreme Court’s] decisions as of the time of the relevant state-court

decision”). And considering whether Griffith required retroactive application of Blakely

does not involve a multi-factor test; it involves only the calendar, which we use to

determine whether Lovins’s case became final before or after the Supreme Court’s

decision in Blakely. Neither the state courts, nor the State, nor the district court below

suggest that Lovins’s conviction became final—in the language of Griffith and

Teague—before the Blakely decision. It was therefore both contrary to and an

unreasonable application of Griffith for the Tennessee Court of Criminal Appeals to

deny Lovins relief on the basis of non-retroactivity.

No. 11-5545 Lovins v. Parker Page 23

d. Remedies

Retroactivity concerns aside, the State does not contest that the judicial

factfinding in Lovins’s sentencing was unconstitutional under Blakely. The Court of

Criminal Appeals acknowledged as much in its decision denying postconviction relief

to Lovins, and the Tennessee Supreme Court confirmed this conclusion in Gomez II,

239 S.W.3d at 740. The Tennessee sentencing statute wrongly allowed “a presumptive

sentence”—in Lovins’s case, twenty years—“to be enhanced based on judicially

determined fact.” Id. Because the statute “permitted enhancement based on judicially

determined facts other than the fact of a prior conviction, it violated the Sixth

Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and

Cunningham.” Id.

Of course, the determination that the Court of Criminal Appeals unreasonably

applied Griffith and Teague—and therefore that Blakely applies retroactively in this

case—does not alone mandate relief for Lovins. As the Supreme Court recently

clarified, “retroactivity jurisprudence is concerned with whether, as a categorical matter,

a new rule is available on direct review as a potential ground for relief.” Davis v. United

States, 131 S. Ct. 2419, 2430 (2011). “Retroactive application under Griffith lifts what

would otherwise be a categorical bar to obtaining redress for a government’s violation

of a newly announced constitutional rule.” Id. (citing Danforth, 552 U.S. at 271).

“Retroactive application does not, however, determine what ‘appropriate remedy’ (if

any) the defendant should obtain.” Id.

While the question of whether a constitutional violation occurred in a § 2254

case is a “pure question of federal law,” the “availability or nonavailability of remedies”

is a “mixed question of state and federal law.” Danforth, 552 U.S. at 291 (quoting Am.

Trucking, 496 U.S. at 205 (Stevens, J. dissenting)). Thus, the retroactive application of

a new rule is generally “subject . . . to established principles of waiver, harmless error,

and the like.” Shea v. Louisiana, 470 U.S. 51, 58 n.4 (1985) (applying pre-Griffith

retroactivity doctrine); see also United States v. Booker, 543 U.S. 220, 268 (2005)

(noting Blakely would be applicable to all federal sentencing guidelines cases pending

No. 11-5545 Lovins v. Parker Page 24

on direct review, but “expect[ing] reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised below and whether it

fails the ‘plain-error’ test”).

Similarly, the determination that a new rule of constitutional law is retroactively

available does not limit a state court from invoking procedural default based on state

procedural rules. It follows that the outcome in Lovins’s case would be very different

if the Court of Criminal Appeals had denied relief to Lovins because he had failed to

raise an Apprendi claim on direct appeal and could not meet a state-law “cause and

prejudice” procedural default standard. As discussed above, though, our procedural

default doctrine leaves the determination of state procedural issues to the state courts to

decide. And the fact that a state court “could have” applied a state procedural rule to bar

review of the merits of a claim is only relevant where a petitioner never properly

exhausted his claims in state court—which is not the case here. See supra Part III.A.1.

Harmless error, however, here is a federal-law question. In determining the

proper remedy for a Blakely error, we ordinarily consider whether the error was

harmless. See Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529, 536 (6th Cir.

2010). In Villagarcia, we 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.” Villagarcia, 599 F.3d at 536–37

(citing Hereford v. Warren, 536 F.3d 523, 532–33 (6th Cir. 2008)). Under that standard,

“an error is considered not harmless when ‘the matter is so evenly balanced that the

habeas court has grave doubt as to the harmlessness of the error.’” Id. at 537 (quoting

Hereford, 536 F.3d at 533).

Like procedural default, the harmless error defense can be waived. See United

States v. Johnson, 467 F.3d 559, 564 (6th Cir. 2006) (finding the government waived the

harmless error defense because it provided only a “perfunctory discussion” in its

briefing, without any relevant case law). Here, the State did not argue harmless error

before the district court and did not argue it in briefing this appeal. While the State did

contend at oral argument that the error was harmless, we “need not reward

No. 11-5545 Lovins v. Parker Page 25

quick-thinking counsel by entertaining grounds brought to [the court’s] attention for the

first time at oral argument.” Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 714

(6th Cir. 2001).

The State’s waiver is of no consequence, however, because the Blakely error was

not harmless. The Tennessee trial judge enhanced Lovins’s sentence on the basis of the

judge’s finding of four aggravating factors: that Lovins (1) had a history of criminal

convictions or behavior, (2) had a history of unwillingness to comply with conditions of

release, (3) possessed a firearm during the commission of his offense, and (4) showed

no hesitation about committing a crime with a high risk to human life. Of these four,

only the existence of prior criminal convictions and the possession of the firearm could

possibly be considered to be facts found by a jury beyond a reasonable doubt. And, with

regard to the criminal-history factor, the judge noted that it was “not a lengthy criminal

history,” suggesting that this factor was not important in determining the sentence.

A finding that the error was not harmless in this case is supported by Villagarcia,

in which we recognized that the sentencing court could end up exercising more

discretion on remand than it had the first time around. Nonetheless, we still concluded

there that “we simply cannot know whether the sentencing judge would accord the

relevant factors the same weight when reassessing the matter outside the dictates of the

severed provisions.” 599 F.3d at 539. Such a finding is also supported by Gomez II, in

which the Tennessee Supreme Court reviewed the judicial factfinding of only two

factors—a previous history of criminal convictions or behavior and a finding that Gomez

had been a “leader” in the commission of the offense. 239 S.W.3d at 736. On

application of the plain error standard, the Tennessee Supreme Court found that this

judicial factfinding had “adversely affected” a substantial right of the accused, id. at 741,

and that consideration of the error was “necessary to do substantial justice,” id. at 742.

In sum, even had the State not waived the argument in Lovins’s case, we would conclude

that the Blakely sentencing error was not harmless.

Having considered the procedural default doctrine, Teague nonretroactivity, the

deferential AEDPA standard of review on the merits, and the harmless error doctrine,

No. 11-5545 Lovins v. Parker Page 26

we are constrained to conclude that the judicial factfinding in Lovins’s sentencing was

unconstitutional and that the remedy Lovins requests is due. We need not instruct the

State how to provide this remedy, only that the remedy must either result in a reduction

of Lovins’s sentence from twenty-three to twenty years, or in resentencing under a

procedure that does not violate the Sixth Amendment. We afford the State 180 days

from the date of this order to initiate the necessary proceedings.

B. Trial error claims

In addition to his sentencing claim, Lovins also levies two claims of trial error

for which he requests habeas relief. Both claims fail.

Lovins alleges the prosecution violated his due process rights under Brady v.

Maryland, 373 U.S. 83 (1963), by failing to disclose the existence of physical

evidence—the ammunition and work glove found in his car—until the evidence was

presented at trial. Prejudice, or “materiality,” is “an essential element” of a Brady claim,

Smith v. Mitchell, 348 F.3d 177, 212 (6th Cir. 2003), and because the physical evidence

was eventually presented at Lovins’s trial, we consider only the prejudice caused by the

delay in making the items available to Lovins. The claim fails because Lovins cannot

show prejudice from the delay.

Lovins suggests that, with more time, he could have disputed that the gloves and

the ammunition were his. But, given that Lovins admitted the .357 firearm belonged to

him and that he had used it in the shooting, it is not clear how Lovins could have

successfully argued that the .357 rounds were not his, or even why that would help him.

As for the glove, Lovins suggests that with more time for preparation he may have been

able to determine that the glove did not fit him. But, even if the glove did not fit, it is

not clear how that would have been exculpatory. Lovins was accompanied in his car by

four other individuals; to the extent that the glove belonged to one of them, it would no

less suggest that Lovins and his friends had anticipated a violent conflict than if the

glove belonged to Lovins. And, though Lovins testified during his postconviction

hearing that the glove had a big impact on the jury, neither the prosecution nor defense

discussed the glove before or after it was introduced into evidence.

No. 11-5545 Lovins v. Parker Page 27

Under these circumstances, the fact that the State may have failed to disclose the

existence of the glove and the ammunition to Lovins prior to the trial can hardly be

considered to have materially prejudiced Lovins’s defense. See O’Hara v. Brigano,

499 F.3d 492, 502 (6th Cir. 2007) (noting evidence is material “only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different”). As no Brady violation is apparent even on

de novo review, the district court was correct to deny relief on Lovins’s Brady claim.

Lovins’s second argument of trial error is that the suppression of part of Kim

Floyd’s testimony amounted to a violation of the right of an accused to present witnesses

in his own defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Lovins

acknowledges that he procedurally defaulted this claim by failing to raise it on direct

appeal, but he argues that the default is excused by his showing of ineffective assistance

of counsel. The Court of Criminal Appeals considered this argument and rejected it, and

the district court agreed.

We agree with the Court of Criminal Appeals that defense counsel’s approach

to Floyd’s testimony cannot be considered to be “anything other than reasonable

appellate strategy.” Lovins II, 2007 WL 2700097, at *10. As an initial matter, the trial

court allowed testimony from Floyd and Lovins from which the jury could infer that

Floyd blamed Burnett for the death of her child and that Lovins had been aware of this

before he shot Burnett. In addition, there was already extensive evidence from other

witnesses as to Burnett’s violent tendencies and as to Lovins’s awareness of them, so we

cannot conclude that any additional testimony from Floyd would have made a difference

in the outcome of the trial. Lovins cannot show actual prejudice from any failure on his

counsel’s part, and he thus cannot overcome his procedural default. See Nields v.

Bradshaw, 482 F.3d 442, 450 (6th Cir. 2007) (“To excuse [a procedural] default for the

purpose of habeas review, [the petitioner] must establish both ‘cause’ and ‘prejudice.’”).

The district court was therefore correct to deny relief on Lovins’s claim of error as to

Floyd’s testimony.

No. 11-5545 Lovins v. Parker Page 28

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s denial of relief

on all of Lovins’s claims of trial error and DENY his request for a new trial.

We REVERSE the district court’s denial of habeas corpus as to Lovins’s Blakely

claim, and conditionally GRANT a writ of habeas corpus unless the State initiates

proceedings within 180 days of this order to either (1) reset Lovins’s sentence to the

presumptive statutory sentence of twenty years, or (2) provide Lovins a new sentencing

hearing under a sentencing procedure that satisfies the Sixth Amendment right to trial

by jury.