Petition for Writ of Certiorari — Lonnie Lee Owens, Petitioner v. Mike Parris, Warden

No. ______

In the

Supreme Court of the United States

_______________________

LONNIE LEE OWENS,

v.

Petitioner,

MIKE PARRIS, WARDEN

_______________________

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT

________________________

PETITION FOR WRIT OF CERTIORARI

_______________________

PHILIP M. COOPER

KIRKLAND & ELLIS LLP

300 N. LaSalle

Chicago, IL 60654

KASDIN MITCHELL

Counsel of Record

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5165

kasdin.mitchell@kirkland.com

December 27, 2019

QUESTION PRESENTED

In the decade since this Court ruled in Washington

v. Recuenco, 548 U.S. 212 (2006), that errors under

Blakely v. Washington, 542 U.S. 296 (2004), can be

harmless, the lower courts have struggled to apply

harmless-error analysis where the jury returned a

compromised verdict, the sentencing enhancement at

issue required a subjective assessment of the nature

of the crime, and the application of the enhancement

required the judge to resolve a disputed fact at trial.

Here, a Tennessee jury returned a compromise verdict

finding Lonnie Lee Owens guilty of second-degree

murder, an offense punishable by 20 years in prison.

He is serving 24. At sentencing, the judge enhanced

Owens’s sentence by finding a disputed fact against

Owens to conclude that his crime was exceptionally

cruel. The state appellate court approved the

enhancement, describing Owens’s argument that

Blakely forbids this kind of judicial fact-finding as

having “no merit.” The district court granted Owens’

habeas petition, holding that the state court’s decision

was contrary to or an unreasonable application of

Blakely and that the error was not harmless, but the

Sixth Circuit reversed, holding that the jury

doubtlessly would have agreed that Owens deserved

the enhanced sentence. In finding the Blakely error

harmless, the Sixth Circuit’s decision stands in

conflict with decisions of several other courts.

The question presented is:

Whether a Blakely error is harmless when the jury

returned a compromise verdict and the sentencing

ii

enhancement at issue required a subjective

assessment of disputed facts and witness credibility.

iii

STATEMENT OF RELATED PROCEEDINGS

•

•

•

•

Owens v. Parris, No. 17-5488 (6th Cir.) (opinion

issued and judgment entered July 30, 2019;

mandate issued Aug. 21, 2019).

Owens v. Steward, No. 4:14-cv-00018 (E.D. Tenn.)

(opinion issued and judgment entered Mar. 29,

2017).

Owens v. Tennessee, No. M2011-02188 (Tenn. Ct.

Crim. App. 2013) (opinion issued Apr. 4, 2013,

and permission to appeal denied by Tennessee

Supreme Court Oct. 16, 2013).

Tennessee v. Owens, No. M2005-00362 (Tenn. Ct.

Crim. App. 2005) (opinion issued Oct. 18, 2005,

and permission to appeal denied by Tennessee

Supreme Court Mar. 27, 2006).

There are no additional proceedings in any court

that are directly related to this case.

iv

PARTIES TO THE PROCEEDING

Lonnie Lee Owens is the petitioner here and was

the appellee below.

Mike Parris, Warden, is the respondent here and

was the appellant below, having been substituted for

Henry Steward.

v

CORPORATE DISCLOSURE STATEMENT

Lonnie Lee Owens is an individual, and Mike

Parris, Warden, is an official of the State of Tennessee.

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

STATEMENT OF RELATED PROCEEDINGS ....... iii

PARTIES TO THE PROCEEDING .......................... iv

CORPORATE DISCLOSURE STATEMENT ............ v

TABLE OF AUTHORITIES ...................................... ix

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 3

STATEMENT OF THE CASE ................................... 4

A. Legal Background................................................ 4

B. Owens’s Case ....................................................... 9

REASONS FOR GRANTING THE PETITION....... 14

A. The Decision Below Drew The Wrong

Inference From A Compromise Verdict In

Conflict With The Ninth Circuit And

California Supreme Court ................................. 15

B. The Decision Below Also Conflicts With

Numerous Courts That Have Held That A

Blakely Error Based On a Subjective

Enhancement Supported By Inconclusive

Evidence Cannot Be Harmless ......................... 19

C. This Case Is An Ideal Vehicle For The Court

To Reaffirm Blakely and Clarify Recuenco ....... 25

CONCLUSION ......................................................... 28

vii

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Sixth Circuit, Owens v. Parris,

No. 17-5488 (July 30, 2019) ........................ App-1

Appendix B

Opinion, United States District Court for

the Eastern District of Tennessee, Lonnie

Owens v. Steward, No. 4:14-cv-18-HSMSKL (Mar. 29, 2017) .................................. App-11

Appendix C

Opinion, Court of Criminal Appeals of

Tennessee, at Nashville, Owens v. State,

No. M2011-02188-CCA-R3PC (Apr. 4,

2013)........................................................... App-71

Appendix D

Opinion, Court of Criminal Appeals of

Tennessee, at Nashville, State v. Owens,

No. M2005-00362-CCA-R3-CD

(Oct. 18, 2005) .......................................... App-124

Appendix E

Excerpt

of

Sentencing

Hearing

Transcript, Circuit Court of Franklin

County, in the Twelfth Judicial District of

Tennessee, State v. Owens, No. 15356

(Feb. 1, 2005) ........................................... App-142

Appendix F

Relevant

Tennessee

Statutes

(effective 2003) ........................................ App-144

viii

Tenn. Code Ann. § 39-13-202 .................. App-144

Tenn. Code Ann. § 39-13-210 .................. App-145

Tenn Code Ann. § 40-35-114 ................... App-145

Tenn Code Ann. § 40-35-210 ................... App-148

ix

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013) .............................................. 4, 25

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................. 4, 5, 25, 26

Ball v. Ryan,

494 F. App’x 760 (9th Cir. 2012) ........................... 21

Blakely v. Washington,

542 U.S. 296 (2004) ................................. i, 1, 4, 6, 25

Butler v. Curry,

528 F.3d 624 (9th Cir. 2008).............................. 7, 20

Cunningham v. California,

549 U.S. 270 (2007) ............................................ 7, 25

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................ 25

Fults v. Qualls,

635 F. App’x 316 (6th Cir. 2016) ........................... 24

Hurst v. Florida,

136 S. Ct. 616 (2016)................................................ 6

In re Winship,

397 U.S. 358 (1970) .................................................. 4

Johnson v. Kane,

482 F. App’x 227 (9th Cir. 2012) ..................... 21, 22

Leon v. Kirkland,

403 F. App’x 268 (9th Cir. 2010) ........................... 20

Long v. Coursey,

683 F. App’x 561 (9th Cir. 2017) ........................... 27

x

Lyons v. Weisner,

247 F. App’x 440 (4th Cir. 2007) ........................... 20

Mullins v. Ryan,

679 F. App’x 617 (9th Cir. 2017) ..................... 21, 22

Neder v. United States,

527 U.S. 1 (1999) ................................................ 8, 21

O’Neal v. McAninch,

513 U.S. 432 (1995) ................................................ 16

Owens v. Parris,

932 F.3d 456 (6th Cir. 2019).................................... 2

Owens v. Steward,

No. 4:14-cv-18, 2017 WL 1184178

(E.D. Tenn. Mar. 29, 2017) ...................................... 2

People v. Sandoval,

161 P.3d 1146 (Cal. 2007) .......................... 16, 17, 21

Plasencia v. Sec’y, Fla. Dep’t of Corr.,

606 F. App’x 511 (11th Cir. 2015) ......................... 21

Rameses v. Kernan,

377 F. App’x 593 (9th Cir. 2010) ........................... 21

Ramirez v. Vasques,

592 F. App’x 550 (9th Cir. 2014) ..................... 15, 16

Ring v. Arizona,

536 U.S. 584 (2002) .................................................. 6

Rosenberg v. United States, 360 U.S. 367

(1959) ...................................................................... 26

State v. Arnett,

49 S.W.3d 250 (Tenn. 2001) ...................... 11, 22, 23

State v. Gomez,

163 S.W.3d 632 (Tenn. 2005),

vacated 549 U.S. 1190 (2007) .......................... 6, 7, 8

xi

State v. Gray,

960 S.W.2d 598 (Tenn. Crim. App. 1997) ............. 17

State v. Nelson,

No. 03C01-9706-CR-00197, 1998 WL

694971 (Tenn. Crim. App. Sept. 9, 1998) .............. 18

State v. Reid,

91 S.W.3d 247 (Tenn. 2002) .................................. 23

State v. Scott,

No. W2009-00707-CCA-R3-CD, 2011 WL

2420384 (Tenn. Crim. App. June 14, 2011) .......... 18

Stephens v. State,

975 So. 2d 405 (Fla. 2007) ..................................... 22

Sullivan v. Louisiana,

508 U.S. 275 (1993) ................................................ 27

United States v. Booker,

543 U.S. 220 (2005) .......................................... 4, 5, 6

Unruh v. Hall,

577 F. App’x 657 (9th Cir. 2014) ..................... 19, 20

Washington v. Recuenco,

548 U.S. 212 (2006) ..................................... i, 1, 8, 21

Constitutional Provisions

U.S. Const. amend. VI ................................................ 3

U.S. Const. amend. XIV ............................................. 3

Statutes

28 U.S.C. § 1254 ......................................................... 3

28 U.S.C. § 2254 ....................................................... 26

Tenn. Code Ann. § 40-35-105 (2003) .......................... 6

Tenn. Code Ann. § 40-35-210 (2003) .......................... 6

xii

Tenn. Code Ann. §40-35-114 (2003) ........................... 6

PETITION FOR WRIT OF CERTIORARI

While courts have generally had little trouble

applying ordinary harmless-error analysis to Blakely

errors in the decade since Washington v. Recuenco,

548 U.S. 212 (2006), there is a recent, growing division

among the lower courts over whether a Blakely error

can be harmless when the jury returns a compromise

verdict, the sentencing enhancement at issue requires

a subjective assessment of the nature of the crime, and

the factual basis for the enhancement requires the

judge to resolve a disputed fact.

When those

circumstances are present, the protections of the Fifth

and Sixth Amendments should be at their highest.

The Fourth and Ninth Circuits and the California

Supreme Court have recognized as much, holding that

Blakely errors are not harmless when at least one of

those circumstances is present.

The Sixth Circuit, however, reached the opposite

conclusion when all of those circumstances were

present. In the decision below, a Tennessee jury

returned a compromise verdict finding Lonnie Lee

Owens guilty of second-degree murder, an offense

punishable by 20 years in prison. He is serving 24,

because the sentencing judge enhanced his sentence

by finding a disputed fact against Owens to conclude

that his crime was exceptionally cruel. The state

appellate court approved the enhancement as

consistent with Blakely and did not reach the

harmless-error question.

The district court ultimately granted habeas relief

on the ground that the state court’s determination of

2

the constitutional question was contrary to or an

unreasonable application of this Court’s clearly

established law in Blakely, and concluded that in light

of the compromise verdict, the nature of the

enhancement, and the disputed facts it could not

conclude that the constitutional error was harmless.

Owens v. Steward, No. 4:14-cv-18, 2017 WL 1184178,

at *7-11 (E.D. Tenn. Mar. 29, 2017). The Sixth Circuit

reversed. Although it too identified a constitutional

violation, it held that the mistake was harmless

because the defendant’s testimony was, in the court’s

view, “fantastic.” Owens v. Parris, 932 F.3d 456, 459,

461 (6th Cir. 2019).

Whatever is the high-water mark of a harmlesserror finding in the Blakely context, the Sixth Circuit’s

holding plainly exceeds it. The core protection of

Blakely is that the jury—not the judge—decides

disputed issues of fact, and in particular credibility

determinations. In a case where the jury returns a

compromise verdict, the sentencing enhancement at

issue is subjective, and the underlying facts are

disputed, a Blakely error should not be harmless, as

the Fourth and Ninth Circuits and California

Supreme Court have rightly recognized. This Court

should grant certiorari, resolve the conflict between

those courts and the Sixth Circuit, and bring clarity to

the intersection of harmless-error principles and

Blakely.

3

OPINIONS BELOW

The Sixth Circuit’s opinion is reported at 932

F.3d 456 and reproduced at App.1-10. The district

court’s opinion is available at 2017 WL 1184178 and

reproduced at App.11-70.

JURISDICTION

The Sixth Circuit issued its opinion on July 30,

2019. Justice Sotomayor extended the time to file a

petition for a writ of certiorari to and including

December 27, 2019. This Court has jurisdiction under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment provides, in relevant part:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury …” U.S. Const. amend. VI.

The Fourteenth Amendment provides, in relevant

part: “No State shall … deprive any person of life,

liberty, or property, without due process of law ….”

U.S. Const. amend. XIV.

The relevant provisions of Tennessee’s former

sentencing laws, including Tenn. Code Ann. § 40-35114 and Tenn. Code Ann. § 40-35-210, (2003) are

reproduced at App.144-App.148.

4

STATEMENT OF THE CASE

A.

Legal Background

1. The right to a jury trial “is no mere procedural

formality, but a fundamental reservation of power in

our constitutional structure.” Blakely v. Washington,

542 U.S. 296, 305-06 (2004). Equally “vital … in our

criminal procedure” is the “requirement of proof

beyond a reasonable doubt.” In re Winship, 397 U.S.

358, 363 (1970). Taken together, these tenets yield a

simple command: “Other 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.” Apprendi v. New Jersey, 530 U.S.

466, 490 (2000).

This rule matters most in preserving the balance

of power between judges and juries. Historically, the

functions of each were relatively clear. The jury would

find that the defendant had committed all the

essential elements of the offense, and the judge would

simply impose the punishment required by the law.

Apprendi, 530 U.S. at 478-82; see also Alleyne v.

United States, 570 U.S. 99, 108-09 (2013). Judges

sometimes had discretion over the exact sentence, but

only “within the range prescribed by statute.”

Apprendi, 530 U.S. at 481 (emphasis in original).

As time went on, however, “novel[] … legislative

scheme[s]” shifted greater sentencing responsibility to

the judge. Id. at 482; see also United States v. Booker,

543 U.S. 220, 236-37 (2005). Although the jury still

was tasked with finding the defendant guilty of some

5

offense, the judge would determine the minimum and

maximum sentences by making factual findings of his

own—often by just a preponderance of evidence. See,

e.g., Apprendi, 530 U.S. at 468-71, 491-92 (describing

New Jersey’s scheme); id. at 485-86 (referencing

Pennsylvania’s). Indeed, as judicially imposed

“enhancements became greater, the jury’s finding of

the underlying crime became less significant.” Booker,

543 U.S. at 236.

This Court emphatically rejected this usurpation

of the jury’s role in Apprendi. Like Owens’s case,

Apprendi involved a judge-made finding by a

preponderance of the evidence to impose a

punishment above the statutory maximum. 530 U.S.

at 468-71. Specifically, the defendant in Apprendi had

pleaded guilty to a gun-possession charge after firing

several shots into the home of a black family. Id. at

469-70. Although the maximum statutory punishment

was 10 years, the judge sentenced him to 12 years by

applying a hate-crime enhancement. Id. at 470-71; see

also id. 491-92. This Court reversed, explaining that if

factual findings impact “the prescribed range of

penalties to which a criminal defendant is exposed,” it

“is unconstitutional for a legislature to remove [them]

from the jury” or to demand less than “proof beyond a

reasonable doubt.” Id. at 490 (citation omitted).

Several decisions since Apprendi have left little

doubt that judicial findings cannot be the “tail which

wags the dog of the substantive offense.” Id. at 495

(citation omitted). Just two years after Apprendi, this

Court held that a jury must find “an aggravating

circumstance necessary for imposition of the death

6

penalty.” Ring v. Arizona, 536 U.S. 584, 609 (2002); see

also Hurst v. Florida, 136 S. Ct. 616 (2016). And soon

after that, the Court declared in Booker that the

mandatory federal sentencing guidelines were

unconstitutional because they depended on judicial

fact-finding. 543 U.S. at 226-27, 233-35, 245 (2005).

Most relevant for present purposes is this Court’s

2004 decision in Blakely. That case clarified that the

relevant statutory maximum is the longest “sentence

a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the

defendant” and that the judge may not exceed this cap

based on his own findings. Blakely, 542 U.S. at 303-04

(emphasis in original). It is irrelevant, the Court

explained in Blakely, whether requiring a jury to find

all of the necessary facts comports with notions of

“efficiency or fairness,” or whether it might be better

to “leav[e] justice entirely in the hands of

professionals.” Id. at 313. All that matters is that,

under “the Framers’ paradigm for criminal justice …,

every defendant has the right to insist that the

prosecutor prove to a jury all facts legally essential to

the punishment.” Id.

But even after Blakely, Tennessee retained a

judge-centered sentencing regime, in which the jury’s

verdict produced a “presumptive sentence,” Tenn.

Code Ann. §§ 40-35-105, -114, -210 (2003), and the

judge was then “require[d to] find and consider

statutory enhancement factors and mitigating factors”

to determine the sentence. State v. Gomez, 163 S.W.3d

632, 659 (Tenn. 2005), vacated 549 U.S. 1190 (2007).

If there were no judge-found enhancement or

7

mitigating factors, then the law “mandate[d]

imposition of the presumptive sentence.” Id. at 660.

But if the judge found an aggravating factor, he could

then impose a more severe punishment. See id. at 660.

To be sure, unlike Washington’s sentencing regime in

Blakely, Tennessee’s sentencing regime did not

“mandate an increased sentence upon [the] finding of

an enhancement factor.” Id. at 660. But it gave the

judge—and the judge alone—“discretion to select a

sentence at or above the presumptive minimum” based

on judge-found facts. Id.

This Court eventually confirmed what was

already clear in Blakely itself—that sentencing

regimes like Tennessee’s violate the Constitution. See

Cunningham v. California, 549 U.S. 270, 274 (2007)

(holding that California’s similar scheme was

unconstitutional); Butler v. Curry, 528 F.3d 624, 635

(9th Cir. 2008) (“[T]he result in Cunningham was

compelled by precedent …”). Cunningham reiterated

that “any fact that exposes a defendant to a greater

potential sentence must be found by a jury, not a

judge, and established beyond a reasonable doubt,”

invalidating California’s system that permitted an

enhanced sentence “only when the trial judge f[ound]

an aggravating circumstance” on the ground that it

“violate[d] Apprendi’s bright line rule.” 549 U.S. at

281, 288.

Although the Tennessee Supreme Court

invalidated Tennessee’s sentencing regime following

Cunningham, that change came too late for Owens,

who

was

sentenced

between

Blakely

and

Cunningham. Although this Court had already

8

decided Blakely by the time of his direct appeal, the

Tennessee Supreme Court had decided that Blakely

did not invalidate the state’s sentencing regime. See

Gomez, 163 S.W.3d at 661-662 (refusing even “to

accept the state’s concession that the defendants’

sentences were imposed in violation of the Sixth

Amendment”). So when Owens presented his Blakely

argument to the Tennessee Court of Criminal

Appeals, the court decided that it had “no merit.”

App.136.

2. Two years after Blakely, in Washington v.

Recuenco, this Court held that the failure to submit a

fact to the jury in violation of Apprendi, Blakely, and

its progeny was subject to harmless-error review. 548

U.S. 212, 220-222 (2006). The Court explained that an

error of that kind simply was a member of the vast

majority of “constitutional errors [that] can be

harmless.” Id. at 218 (quoting Neder v. United States,

527 U.S. 1, 8 (1999)).

Recuenco created more questions than it

answered. For although it made clear that a Blakely

error can be harmless, the decision offered little

guidance on when that will be the case. This

uncertainty has created confusion and division in the

lower courts, as courts have disagreed over whether to

hold errors harmless when the jury returned a

compromise verdict or when the enhancement

required a subjective evaluation of disputed facts and

witness credibility.

9

B.

Owens’s Case

1. The facts surrounding Owens’ killing of his

estranged wife were heavily disputed at trial. For

present purposes, the dispute centered on whether

Owens believed his wife was alive when he covered her

face and limbs with duct tape. Only two witnesses at

trial testified as to these facts: Owens and the state

medical examiner.

a. Owens testified that he accidentally killed his

wife by striking her in the head, and that he believed

she was dead prior to placing duct tape on her body.

He testified that he knew that his wife planned to stop

by his house at some point to pick up their children,

but she had not given him an exact time when they

spoke over the phone. She ended up deciding to

surprise Owens, entering his house unannounced and

shouting “F-you” at him as he walked into the kitchen.

Startled, Owens “swung as hard as [he] could” because

“somebody was behind [him] and … right on top of

[him].” TT 965, 1024 1. The blow knocked his wife to

the ground, where she lay motionless. She also

urinated on herself. Owens checked her arm for a

pulse, found none, and concluded that she was dead.

Owens tried to move what he believed was his

wife’s dead body out of his house but had difficulty

because her limbs were flailing. He testified that he

sought to solve this problem by binding her feet and

arms with duct tape. He also covered her face in tape

1 “TT” refers to pages from the trial transcript, which can be

found at Dkt.10-15- to 10-24 on the district court docket.

10

because it was turning “gray colored” and he did not

want to “look at her.” TT 970-72. Owens then

temporarily concealed the body in the shed behind his

house, and he also hid his wife’s vehicle by driving it

to the parking lot of a nearby store. Later that

evening, he took the body to an island and buried it.

b. The state advanced a different theory: it claimed

that Owens had purposely suffocated his wife with the

duct tape and allowed her to die in an agonizing

fashion. The state’s evidence, however, was mixed on

the manner of death and lacking on Owens’s cruel

intent. The medical examiner, Dr. Charles Harlan, 2

opined that the victim suffocated because of the duct

tape, but he admitted that this was an “[e]xtremely

unusual form of death” and that no evidence

supported his conclusion besides the presence of the

tape and the lack of another obvious cause. TT 808-11,

813-14. Indeed, he admitted to finding none of the type

of hemorrhaging that can be indicative of “suffocation

or asphyxia.” TT 824-26.

Moreover, the medical testimony failed to

establish that Owens’s wife was conscious as she

suffocated. Although Dr. Harlan was skeptical that

the punch was fatal, he explained that “a blow [could]

render [someone] unconscious” without “leav[ing] a

mark.” TT 809-10, 814-15 (emphasis added). In other

2 Harlan lost his medical license two years after the trial. See

App.74. The revocation order reflected “numerous instances of

inadequate medical examinations and documentation and

erroneous medical findings,” as well as “erratic and

unprofessional conduct.” Id.

11

words, even if Owens’s wife had asphyxiated, Dr.

Harlan could not say that she had suffered while doing

so.

Finally, and perhaps most importantly, the

medical evidence never undermined Owens’s

assertion that he honestly believed that his comatose

wife was already dead when he wrapped her in tape.

On the contrary, Dr. Harlan agreed that “a person

[who] was rendered unconscious might have the

appearance of being dead,” and he also admitted that

someone who was not “a trained medical professional

[who] knew how to check for signs of life” might make

a mistake. TT 815.

c. The jury ultimately returned a compromise

verdict of second-degree murder. Although the state

had urged first-degree murder and Owens had

suggested voluntary manslaughter, the jury settled

in-between. See App.95. Under contemporary

Tennessee law, this conclusion meant that Owens

would spend 20 years in prison unless the judge found

the presence of a statutory enhancing or mitigating

factor.

Here, the judge thought that Owens deserved

more than a 20-year sentence on the ground that he

had treated his wife “with exceptional cruelty during

the commission of the offense.” See App.146. Although

Tennessee law reserved this enhancement for extreme

cases involving “the infliction of pain or suffering for

its own sake or [for] the gratification derived

therefrom,” State v. Arnett, 49 S.W.3d 250, 258 (Tenn.

2001) (citation omitted), the judge still found it

12

appropriate here. In doing so, the judge placed

particular emphasis on his belief that Owens’s wife

had been “duct taped while alive” and “allowed to

suffocate and die.” App.142.

On appeal, the Tennessee Court of Criminal

Appeals affirmed the enhancement based on

sufficiency-of-the-evidence analysis, concluding that

there was sufficient evidence to show that Owens’s

wife was alive and conscious as she suffocated. In

particular, the court emphasized that she had

“desperately … tried to continue breathing” and that

Owens had “treated [her] with a calculated

indifference to her suffering and … achieved some

form of gratification from murdering [her].” App.135.

The state court also relied on a key allegation that was

not presented at trial and that later proved to be false:

an erroneous statement in the presentence report that

Dr. Harlan “found traces of duct tape in one of the

victim’s lungs.” App.133; cf. App.101.

The Tennessee Court of Criminal Appeals,

applying the Tennessee Supreme Court’s decision in

Gomez, rejected Owens’s Blakely claim. The court

reasoned that Tennessee’s sentencing scheme did not

violate Blakely, so Owens’s theory had “no merit.”

App.135-36. Having found no Blakely error, the state

appellate court never considered whether any error

would have been harmless.

2. Both federal courts to have considered Owens’s

claims squarely rejected the Tennessee Court of

Criminal Appeals’ conclusion that Owens’s Blakely

error had “no merit.” Both the district court and the

13

Sixth Circuit concluded that Owens’s sentence was

clearly unconstitutional following Blakely. See App.5;

App.28-29. The only real question is whether this clear

error was harmful.

a. The district court concluded that the Blakely

error here was not harmless. The court first reiterated

the high legal standard for the cruelty enhancement,

App.31. (surveying Tennessee law), and then

emphasized the inconclusive nature of the medical

evidence at trial. App.36. In particular, it noted the

thin proof that asphyxiation was the cause of death

and Dr. Harlan’s inability to determine whether

Owens’s wife “was rendered unconscious first.”

App.34-35 (citation omitted). The district court

explained that the “limited and open-ended testimony

regarding the timing and nature of the victim’s cause

of death,” coupled with the fact that the jury

“specifically rejected a conviction for first-degree

murder,” left the court with “grave doubt” that the

enhancement was harmless. App.36-37. Accordingly,

the district court granted the writ. App.38.

b. The Sixth Circuit disagreed. The central

premise of its holding was that “the jury rejected

Owens’s account of the murder and accepted the

State’s.” App.10. Specifically, the court stressed the

“fantastic aspects” of Owens’s testimony, the

prosecution’s “simple[r]” theory of the crime, and the

jury’s decision to return a verdict of second-degree

murder instead of manslaughter. App.9-10; see also id.

App.10 (expressing skepticism “that any sentient

juror would have believed any of [Owens’s story]”). So

given that the state’s version of events showed that

14

Owens suffocated his wife under circumstances

“amount[ing] to psychological abuse or torture” and

exhibiting “calculated indifference toward her

suffering,” the Sixth Circuit had “little doubt that, if

asked, the jury would have made the requisite

finding.” Id.

REASONS FOR GRANTING THE PETITION

The decision below highlights and entrenches two

points of division in the lower courts about how to

assess the harmlessness of Blakely errors. The first

concerns the effect of a verdict showing that the jury

at least partially rejected the prosecution’s theory of

the case. The Ninth Circuit and the California

Supreme Court have held that such a verdict means

that an enhancement based on the state’s version of

events is not harmless, whereas the Sixth Circuit has

taken the opposite approach. The second is about

whether an enhancement can be harmless if it

requires a subjective evaluation of disputed facts and

witness credibility. Many decisions have refused to

hold such qualitative enhancements harmless unless

overwhelming and undisputed proof supported the

judge’s findings. But the Sixth Circuit, again, has

taken a contrary approach. This Court should step in

to clarify that, although Blakely errors can be

harmless, the core protections of Blakely do not permit

a harmless-error finding where the jury returns a

compromise verdict, the sentencing enhancement at

issue requires a subjective assessment of the nature of

the crime, and the facts underlying the enhancement

are disputed.

15

A. The Decision Below Drew The Wrong

Inference From A Compromise Verdict

In Conflict With The Ninth Circuit And

California Supreme Court.

1. Any assessment of harmless error based on a

Blakely error should start by looking at what the jury

actually did. Often a jury verdict does not reflect the

binary choice of believing either the prosecution or the

defense, but reflects that it rejected both sides’

theories. Specifically, where a jury rejects the most

serious crime charged and rejects the defendant’s

request—settling for a conviction in the middle—then

it is hard to tell which version of disputed facts the

jury believed.

In such cases of compromise verdicts, courts have

refused to find Blakely errors harmless when a judge

imposed an enhancement based on the prosecution’s

account of the crime. In Ramirez v. Vasques, for

example, the Ninth Circuit held harmful an

enhancement that rested on three aggravating factors:

“planning, sophistication or professionalism,” the

“vulnerab[ility]” of the victim, and the “cruelty” of the

offense. 592 F. App’x 550, 552 (9th Cir. 2014). In the

underlying prosecution, the state had charged the

defendant with murder for the shooting death of his

sister’s boyfriend, whereas the defendant claimed selfdefense. Id. at 551. Although the jury had taken the

middle road of voluntary manslaughter, the judge

imposed an enhanced sentence after “reciting in large

part the prosecution’s view of the evidence.” Id. at 55152. The Ninth Circuit held that the judge’s usurpation

of the jury’s role was not harmless: “Although one view

16

of the evidence—that espoused by the prosecution—

could likely support one of more of the aggravating

factors,” that “the jury did not fully accept that version

of events” gave the court “grave doubt” about whether

the defendant had suffered prejudice. Id. at 552.

The Supreme Court of California embraced

similar logic in People v. Sandoval, holding that a

Blakely error was not harmless where a judge

enhanced a sentence for voluntary manslaughter

based on judge-found facts. 161 P.3d 1146, 1154-57

(Cal. 2007). Three of the underlying aggravating

factors at issue in that case concerned the defendant’s

mental state: that her actions were “callous,” that she

had no “concern regarding the consequences of her

actions,” and that “the offense reflected planning and

premeditation.” Id. at 1156. Although some evidence

supported these conclusions, the court stressed that

the “defendant’s state of mind was hotly contested at

trial” and that, “[e]vidently, the jury rejected the

prosecution’s view of the evidence” by finding the

“defendant guilty … only of the lesser included offense

of voluntary manslaughter.” Id. (emphasis added). “In

view of th[is] verdict and the state of the evidence,” the

court could not “conclude with any degree of

confidence … that the jury would have found [the

necessary facts].” 3 Id.; see also id. at 1157 (rejecting

To be sure, the California Supreme Court was directly

reviewing the sentence and thus had to decide whether the error

was harmless beyond a reasonable doubt, see Sandoval, 161 P.3d

at 1154, whereas federal courts apply a more lenient standard

when examining state convictions, see O’Neal v. McAninch, 513

U.S. 432, 436 (1995) (explaining that an error is harmful if the

reviewing court has “grave doubt about whether [it] had

3

17

another aggravator because the jury’s verdict showed

that it “found [the defendant] to be less culpable” than

other participants).

2. Here, the Sixth Circuit drew precisely the

opposite conclusion from the jury’s compromise verdict

of second-degree murder. As explained above, the

state charged Owens with first degree murder—that

is, a “premeditated and intentional killing.” App.144.

But the jury rejected that charge, instead convicting

Owens of second-degree-murder, meaning the jury

found that Owens “knowing[ly]” killed his wife.

App.145. That verdict hardly compels the conclusion

that the jury thought that the wife was alive or

conscious when Owens wrapped her body in tape.

Rather, it simply means that the jury believed that

Owens knowingly did something to kill his wife, even

if he did not “intend[] the consequences” of his actions.

State v. Gray, 960 S.W.2d 598, 604-05 (Tenn. Crim.

App. 1997). For example, the jury may have been

skeptical that Owens inadvertently punched his wife;

perhaps it instead concluded that she and Owens had

argued in the kitchen, that he had struck her in a fit

of anger, that the blow had killed her (or at least

knocked her unconscious), and that he had hastily

wrapped the body in tape to assist in moving it. Under

this version of events, the jury could have convicted

Owens of second-degree murder without concluding

substantial and injurious effect or influence”). But this

distinction is irrelevant here, as the Sandoval court made clear

that it lacked “any degree of confidence” that the jury would have

made the required findings. 161 P.3d at 1156 (emphasis added).

18

that his wife suffered—much less that Owens

knowingly let her suffocate. 4

Indeed, ample trial evidence supported a version

of events in which Owens meant to hurt his wife with

the punch but earnestly believed that she was dead

when he taped up her body. Starting at the beginning

of the story, it is plausible that the jury disbelieved

Owens’s claim that he hit his wife wholly out of

surprise—after all, he knew that she was coming by

his house to pick up their children at some point that

day. But it at the same time is plausible that the jury

believed that Owens honestly thought that the blow

had killed her. The testimony at trial showed that

Owens was a strong, heavy man whose job involved

physical labor, and he admitted to hitting his wife in

the temple “as hard as [he] could.” TT 965, 988. He

testified that the blow knocked her to the ground, left

her without a pulse, and caused her to urinate. TT

966-69. Nothing in the testimony of the medical

examiner directly contradicted that theory of events:

the medical evidence could not establish whether the

wife was conscious when Owens wrapped her in tape,

and the medical examiner even agreed that someone

who “was rendered unconscious might have the

appearance of being dead.” TT 815. In light of all these

facts, the jury could have plausibly decided that

4 An unarmed assault can support a conviction for seconddegree murder in Tennessee. See, e.g., State v. Scott, No. W200900707-CCA-R3-CD, 2011 WL 2420384, at *29-30 (Tenn. Crim.

App. June 14, 2011); State v. Nelson, No. 03C01-9706-CR-00197,

1998 WL 694971, at *5 (Tenn. Crim. App. Sept. 9, 1998).

19

Owens was guilty of second-degree murder without

thinking that the crime was exceptionally cruel.

B. The Decision Below Also Conflicts With

Numerous Courts That Have Held That

A Blakely Error Based On a Subjective

Enhancement Supported By

Inconclusive Evidence Cannot Be

Harmless.

1. The very core of the protections afforded to

criminal defendants by the Fifth and Sixth

Amendments as interpreted by this Court in

Apprendi, Blakely, and their progeny is that the

Constitution guarantees a defendant that a jury—not

a judge—will resolve factual disputes and ascertain

witness credibility when that fact-finding may

enhance the defendant’s sentence. Many courts have

recognized as much. In Unruh v. Hall, for example, the

Ninth Circuit confronted an enhancement based on

three subjective aggravators: the “cruelty” of the

crime, the dangerousness of the defendant, and the

vulnerability of the victim. 577 F. App’x 657, 658 (9th

Cir. 2014). The court granted habeas relief because it

had “grave doubt that a jury would have found any of

these aggravating factors beyond a reasonable doubt.”

Id. The Ninth Circuit reached that conclusion

notwithstanding that the defendant had shot a woman

in the face, pointed a gun at her 13-year-old son’s

head, and held the son “hostage for two

minutes … causing him to believe he was going to die.”

Id. at 659 (Clifton, J., dissenting). All that mattered,

according to the court, was that there was just enough

contrary evidence that a reasonable jury could reach a

20

different conclusion. See id. at 658 (majority opinion)

(stressing the brevity of the crime, the defendant’s

military service and law-abiding history, and the lack

of premeditation).

So too in other cases featuring enhancements that

require a subjective assessment of the nature of the

crime. In Lyons v. Weisner, for example, the Fourth

Circuit “f[ound] it impossible to conclude with any

assurance” that the jury would have agreed that the

defendant “took advantage of a position of trust” when

he sexually assaulted a minor, notwithstanding that

the victim had been left in the defendant’s care by his

parents and had been living at the defendant’s home

for some time. 5 247 F. App’x 440, 441-42, 445-46 (4th

Cir. 2007). Similarly, the Ninth Circuit has repeatedly

refused to hold that similarly subjective “vulnerable

victim” enhancements were harmless. See, e.g., Leon

v. Kirkland, 403 F. App’x 268, 269-70 (9th Cir. 2010)

(granting relief even though the defendant ambushed

his victim “inside a dark apartment … as she was

entering the residence”); Butler, 528 F.3d at 651

(expressing “grave doubt” that the jury would have

applied this enhancement “based solely on the

circumstance of [the victim] being attacked from

behind”). And the Supreme Court of California has

taken the same approach, rejecting a vulnerablevictim enhancement even though some evidence

suggested that the killers had ambushed their

5 These facts were taken from a proffer and never formally

admitted by the defendant, but the court assumed that they were

true for the purposes of its analysis. Lyons, 247 F. App’x at 445.

21

intoxicated victims at a bar. Sandoval, 161 P.3d at

1154, 1156-57.

To be clear, these courts have heeded this Court’s

instructions in Recuenco—they do not hold, for

instance, that every fact-based enhancement is

harmful. On the contrary, these courts recognize that

an error can be harmless where the enhancement

involves a clear-cut factual question such as the age of

the victim, Ball v. Ryan, 494 F. App’x 760, 762 (9th

Cir. 2012), or whether the records of the defendant’s

earlier convictions show that he “committed each of

his prior murders with a firearm or deadly weapon,”

Rameses v. Kernan, 377 F. App’x 593, 595 (9th Cir.

2010). Those conclusions follow directly from this

Court’s decision that approved harmless-error review

for Blakely errors in the first place, where the

enhancement at issue involved a simple yes-or-no

question about whether the defendant was armed

with a handgun during his crime. See Recuenco, 548

U.S. at 214-15.

Moreover, a Blakely error may be harmless where

the enhancement requires a subjective assessment of

the nature of the crime but the supporting evidence

“was uncontested and … overwhelming.” Neder, 527

U.S. at 17. See, e.g., Mullins v. Ryan, 679 F. App’x 617,

618 (9th Cir. 2017) (analyzing an enhancement for

“la[ying] in wait”); Johnson v. Kane, 482 F. App’x 227,

230 (9th Cir. 2012) (considering a vulnerable-victim

enhancement). 6 Importantly, however, these decisions

6

See also Plasencia v. Sec’y, Fla. Dep’t of Corr., 606 F.

App’x 511, 516 (11th Cir. 2015) (holding harmless the judge’s

application of a cruelty enhancement under Florida law based on

22

stress that the proof truly was “[un]dispute[d]” and

“overwhelming,” Mullins, 679 F. App’x at 618, or

“clear-cut, obvious, and indisputable,” Johnson, 482 F.

App’x at 230. In other words, just some evidence

favoring the government’s theory is not sufficient

when the enhancement demands a subjective

judgment call.

2. The decision below took the opposite approach

as the Fourth and Ninth Circuits and the California

Supreme Court. The exceptional cruelty enhancement

under Tennessee law required a subjective

assessment of the nature of the crime and a rigorous

review of the evidence. And in Owens’s case, the

evidence was disputed, turning principally on an

assessment of the defendant’s credibility. In these

circumstances, it will be the extraordinarily rare

case—if any—that the absence of a jury finding could

be harmless.

a. Under Tennessee law, whether the evidence

supports a cruelty enhancement is not an easy or

straightforward question. The prosecution must

establish that “the infliction of pain or suffering for its

own sake or from the gratification derived therefrom,

and not merely pain or suffering inflicted as the means

of accomplishing the crime charged.” Arnett, 49

S.W.3d at 258. Indeed, “the facts must demonstrate a

evidence that the victim “was conscious and struggling” as the

defendant strangled her, relying on the fact that the Florida

Supreme Court has “consistently upheld the [cruelty] aggravator

in cases where a conscious victim was strangled,” Stephens v.

State, 975 So. 2d 405, 423 (Fla. 2007)).

23

culpability distinct from and greater than that

incident to the offense.” State v. Reid, 91 S.W.3d 247,

311 (Tenn. 2002). And because this enhancement “is a

matter of degree,” id., the factfinder must holistically

evaluate all of the circumstances of the crime and

decide whether it was so cruel as to merit additional

punishment, see, e.g., Arnett, 49 S.W.3d at 259

(conducting a fact-intensive inquiry).

Here, the inquiry was far from straightforward in

light of the inconclusive evidence about whether

Owens’s wife suffered before she died. If Owens’s

account were completely true, then his wife was

already dead from the punch before he applied the

tape. And even if Dr. Harlan were correct about the

cause of death, it is still quite plausible that she was

unconscious as she suffocated. While there is

theoretically the possibility that Owens’s wife

regained consciousness before dying and suffered in

her final moments, the crucial point is that there are

many ways to construe the relevant testimony. That

interpretive task belongs to a jury, and not a panel of

judges more than 15 years after the fact.

Indeed, the only way that the Sixth Circuit was

able to reach its conclusion was by writing off Owens’s

testimony

as

not

credible,

but

credibility

determinations are uniquely within the province of

the jury. According to the Sixth Circuit, the state’s

theory was so convincing, and Owens’s so “fantastic,”

that it “doubt[ed] that any sentient juror would have

believed any of [Owens’s account].”App.10. Never

mind that the jury’s verdict showed that it had similar

skepticism about the state’s proof.

24

b. Owens’s case is not a one-off error. In Fults v.

Qualls, the Sixth Circuit held harmless enhancements

based on, among other things, the vulnerability of a

sex-abuse victim. 635 F. App’x 316, 321-24 (6th Cir.

2016). On the question of victim vulnerability, the

court downplayed the defendant’s argument that, if

the jury had been asked, it “could have accepted the

defense’s trial portrait of the victim, which was of a

sexually experienced, homosexual teenager who

manipulated [the defendant].” Id. at 322. Instead, the

court focused almost exclusively on the prosecution’s

evidence, explaining that “the question is not whether

some evidence in the record supports [the defendant’s]

version of events.” Id. 7

The Sixth Circuit’s approach is contrary to the

approach of numerous other courts and effectively

renders Blakely a dead letter when it matters most—

when a sentence may be enhanced only by deciding

disputed facts based on credibility determinations.

When a judge imposes an enhancement that requires

a subjective assessment of the allegations in the face

of a conflicted record, a reviewing court should decide

that judges have done enough and that it is time to let

a jury weigh in. The Constitution demands nothing

less.

7

Similarly, on the issue of the location of the rapes, the

Sixth Circuit had little doubt that all five occurred on school

property, even though it was “not clear whether the victim

testified that the fifth incident occurred on school property” and

the defendant had “only admitted that ‘one or two’ of the fellatio

incidents occurred [there].” Id. at 324.

25

C. This Case Is An Ideal Vehicle For The

Court To Reaffirm Blakely and Clarify

Recuenco.

This case presents a clean opportunity to draw one

(or both) of two clear lines: a Blakely error cannot

harmless if either (1) the jury’s verdict suggests that

it disbelieved the prosecution’s evidence that

supported the enhancement, or (2) the enhancement

required a subjective assessment of disputed facts and

witness

credibility.

Both

principles

are

straightforward applications of “Apprendi’s ‘brightline rule’” that the jury must find all facts essential to

punishment. Cunningham, 549 U.S. at 291.

That a subjective, qualitative enhancement

cannot stand in the face of a compromise verdict

follows from settled principles of constitutional law.

This Court has repeatedly stressed the primacy of the

jury, explaining that it is the “great bulwark of our

civil and political liberties,” Apprendi, 530 U.S. at 477,

a “longstanding tenet[] of common-law jurisprudence,”

Blakely, 542 U.S. at 301, and the mechanism that

“prevent[s] oppression by the Government,” Duncan v.

Louisiana, 391 U.S. 145, 155 (1968); see also Alleyne,

570 U.S. at 114 (collecting cases). In light of this

critical function, it cannot be that “a lone employee of

the State” has the power to override “the unanimous

suffrage of twelve of [the defendant’s] equal and

neighbours.” Blakely, 542 U.S. at 313-14 (citation

omitted). Where the Constitution clearly does not

allow the court to take an enhancement out of the

jury’s hands in the first place, it should not find that

26

error harmless where doing so would put the

enhancement at odds with the jury verdict.

Second, a jury determination is especially critical

for enhancements that require a holistic evaluation of

disputed facts and testimony. While the jury-trial

right attaches to every factual finding, regardless of

how clear-cut it is, see Apprendi, 530 U.S. at 500

(Thomas, J., concurring) (“[I]n order for a jury trial of

a crime to be proper, all elements of the crime must be

proved to the jury.” (emphasis added)), as a matter of

the common-sense underpinnings of the harmlesserror inquiry, see Rosenberg v. United States, 360 U.S.

367, 371 (1959), a jury verdict is of the utmost

important when the evidence is disputed, see

Apprendi, 530 U.S. at 475 (“We assume that [the facts]

will sometimes be hotly disputed, and that the

outcome may well depend in some cases on the

standard of proof and the identity of the factfinder.”).

In those circumstances, the interests protected by

Apprendi and Blakely are at their greatest, and the

interests protected by harmless-error doctrine are at

their weakest.

This case is an ideal vehicle to settle these

important questions. Although arising from federal

habeas review of a state-court decision, the question

presented does not require AEDPA deference because

the Tennessee Court of Criminal Appeals did not

decide the harmless-error question on the merits. See

28 U.S.C. § 2254(d). That court decided that Owens’s

Blakely claim had “no merit” because the Tennessee

Supreme Court had decided that Tennessee’s

27

sentencing scheme did not violate Blakely in the first

place. App. 136.

The harmless-error question is also case

dispositive. Both the district court and the Sixth

Circuit concluded that Owens’s constitutional rights

were violated when the judge enhanced his criminal

sentence based on facts not found by the jury. The

only question is whether the error was harmless. This

case thus does not arrive in the posture where the

court below reached the harmless-error question

without having first decided whether there was an

error—for example, by “[a]ssuming arguendo [the

defendant]’s rights were violated,” and concluding

that “the violation was harmless.” Long v. Coursey,

683 F. App’x 561 (9th Cir. 2017).

Finally, it is no obstacle to this Court’s review that

harmless-error questions typically are factbound, as

the entire point of harmless-error review is to examine

whether a constitutional error was actually injurious

to the defendant in light of the facts of the case. See

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). And

the factual dispute in this case is exceptionally

straightforward: The defendant testified that he

believed his wife was dead when he placed duct tape

on her; the medical examiner testified that she died

from suffocation, but he did not know whether she was

conscious or unconscious at the time. The district

court concluded in a well-reasoned opinion that in

light of those facts, and in view of the compromise

verdict, it could not conclude that the application of

the exceptional-cruelty enhancement was harmless.

The Sixth Circuit disagreed on the ground that it

28

simply did not believe the defendant’s testimony. The

Court would not need to wade through an extensive

factual record to conclude that the Sixth Circuit’s

ruling offends the very core of the protections this

Court recognized in Blakely. This case thus presents

an ideal vehicle for the Court to clarify Blakely and

Recuenco and the circumstances in which a Blakey

error is not harmless.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari.

Respectfully submitted,

PHILIP M. COOPER

KIRKLAND & ELLIS LLP

300 N. LaSalle

Chicago, IL 60654

KASDIN MITCHELL

Counsel of Record

KIRKLAND & ELLIS LLP

1301 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 389-5165

kasdin.mitchell@kirkland.com

Counsel for Petitioner

December 27, 2019