RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0256p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ALEXSANDAR CVIJETINOVIC,

Petitioner-Appellee,

v.

MICHELLE EBERLIN, Warden,

Respondent-Appellant.

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No. 08-3629

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-02555—Kathleen McDonald O’Malley, District Judge.

Argued: March 4, 2010

Decided and Filed: August 23, 2010 

Before: KEITH, BOGGS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Aaron Aldridge, Lebanon, Ohio, for Appellee.

ON BRIEF: Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S

OFFICE, Cincinnati, Ohio, for Appellee. 

BOGGS, J., delivered the opinion of the court, in which GRIFFIN, J., joined.

KEITH, J. (pp. 11-14), delivered a separate dissenting opinion.

_________________

OPINION

_________________

BOGGS, Circuit Judge. Warden Michelle Eberlin appeals the district court’s

order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ

of habeas corpus. In the petition, Cvijetinovic claimed that his presumptive sentence

1
No. 08-3629 Cvijetinovic v. Eberlin Page 2

1

That presumption had since been abolished. See State v. Foster, 845 N.E.2d 470, 475 (Ohio

2006). Trial courts now have untrammeled discretion to impose any sentence within the statutory range.

See id. at 476.

was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). Though it determined

that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted

relief, holding that he had established cause and prejudice. The district court’s

conclusion with respect to cause was premised on the notion that, at the time of his

default, the legal basis for Cvijetinovic’s claim was not reasonably available. However,

the principle at the heart of Blakely had already been articulated in Apprendi v. New

Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months

preceding Cvijetinovic’s appeal. We therefore reverse.

I

On January 19, 1999, Cvijetinovic pleaded guilty in the Cuyahoga County Court

of Common Pleas “to multiple charges related to armed robberies he committed around

1998.” Cvijetinovic v. Eberlin, 617 F. Supp. 2d 620, 625 (N.D. Ohio 2008). In addition,

he pleaded guilty “to an intimidation charge related to threats directed toward his

girlfriend in the aftermath of his arrest.” Ibid. Approximately one month later,

Cvijetinovic was sentenced “to an aggregate prison term of sixteen years, including

terms exceeding the statutory minimum based on judicial fact-finding, consecutive terms

of imprisonment, and mandatory firearms specifications.” Ibid.

On July 12, 2002, Cvijetinovic filed his first direct appeal, challenging both his

convictions and his sentence. See id. at 626. The Ohio Court of Appeals for the Eighth

District affirmed his convictions but remanded for re-sentencing. At the time, Ohio Rev.

Code § 2929.14(B) established a presumption that an offender would be sentenced to the

statutory minimum.1

 A trial court could impose a harsher sentence only if the offender

had been previously been incarcerated, see Ohio Rev. Code § 2929.14(B)(1), or the trial

court “f[ound] on the record that the shortest prison term w[ould] demean the seriousness

of the offender’s conduct or w[ould] not adequately protect the public from future crime
No. 08-3629 Cvijetinovic v. Eberlin Page 3

2

“Under Ohio law, the failure to raise on appeal a claim that appears on the face of the record

constitutes a procedural default under the State’s doctrine of res judicata.” Wong v. Money, 142 F.3d 313,

322 (6th Cir. 1998) (citing Ohio v. Cole, 443 N.E.2d 169, 171 (1982)).

by the offender or others.” Id. at § 2929.14(B)(2). Because Cvijetinovic had no prior

record, the trial court was required to make one of the aforementioned findings in order

to justify the sentence it imposed. The Ohio Court of Appeals held that it did not.

On remand, the trial court rectified its error, holding that “[i]mposing minimum

sentence on an eighteen year old drug crazed alcoholic would seriously not adequately

protect the community from future crime.” After making the requisite finding, the trial

court again imposed a sentence of sixteen years of imprisonment. Cvijetinovic appealed,

but this time the Ohio Court of Appeals affirmed. A subsequent appeal to the Ohio

Supreme Court was dismissed as not involving any substantial constitutional question.

On June 24, 2004, the United States Supreme Court handed down its decision in

Blakely. Two months later, Cvijetinovic timely petitioned the Supreme Court for a writ

of certiorari, arguing for the first time that his non-minimum sentence had been

unconstitutionally imposed on the basis of judge-found facts. See Cvijetinovic, 617 F.

Supp. 2d at 635. The petition was denied. See Cvijetinovic v. Ohio, 543 U.S. 935 (2004)

Cvijetinovic then pursued collateral review at the federal level, petitioning the

United States District Court for the Northern District of Ohio for a writ of habeas corpus.

He asserted four grounds for relief, and each was dismissed, save one: a Blakely claim.

See Cvijetinovic, 617 F. Supp. 2d at 654. 

In analyzing this claim, the district court noted that Blakely was decided before

Cvijetinovic’s conviction became final, concluding that the claim was therefore

cognizable. See id. at 635. However, given Cvijetinovic’s failure to raise the claim at

the state level, the district court also concluded that it was procedurally defaulted under

Ohio’s doctrine of res judicata. See id. at 636.2

 The district court nonetheless

proceeded to the merits of the claim, holding that Cvijetinovic could show cause and

prejudice to excuse the default. See id. at 636–46. Addressing the underlying

constitutional issue, the district court held that Cvijetinovic was sentenced under
No. 08-3629 Cvijetinovic v. Eberlin Page 4

provisions of Ohio’s sentencing scheme that “permitted sentencing enhancements based

on judicial fact-finding, and thus violate[d] Blakely.” Id. at 647. After finding that this

error was not harmless, see id. at 649, the district court ordered Cvijetinovic re-sentenced

within ninety days or released from incarceration, see id. at 654. 

The warden now appeals.

II

“In appeals of federal habeas corpus proceedings, we review the district court’s

legal conclusions de novo and its factual findings under a ‘clearly erroneous’ standard.”

Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999) (citing Fair v. United States, 157

F.3d 427, 430 (6th Cir. 1998)); see also Moore v. Haviland, 531 F.3d 393, 401 (6th Cir.

2008) (“We review a district court’s legal conclusions in a habeas petition de novo.”).

Accordingly, “we review the district court’s decision applying the ‘cause and prejudice’

rules to the ‘procedural bar’ issues de novo.” Lucas, 179 F.3d at 416 (citing Lusk v.

Singletary, 112 F.3d 1103, 1105 (11th Cir. 1997)); see also Deitz v. Money, 391 F.3d

804, 808 (6th Cir. 2004) (“The district court’s determination regarding procedural

default and its resolution of whether ‘cause and prejudice’ exist to excuse the default are

. . . subject to de novo review.”).

III

It is undisputed that Cvijetinovic procedurally defaulted his Blakely claim, see

Appellee’s Br. at 9 (“Appellee admits that he did not present his Sixth Amendment claim

to the state court.”), a circumstance that typically precludes federal habeas review, see

Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (“If a habeas corpus petitioner is barred

from presenting one or more of his claims to the state courts because of procedural

default, he has waived those claims for purposes of federal habeas corpus review . . . .”).

However, “[w]hen a habeas claim is procedurally defaulted, it may nevertheless be

considered if the petitioner shows ‘cause for the procedural default and prejudice

attributable thereto . . . .’” Burroughs v. Makowski, 411 F.3d 665, 667 (6th Cir. 2005)

(quoting Murray v. Carrier, 477 U.S. 478, 484 (1986)); see also Hall v. Vasbinder, 563
No. 08-3629 Cvijetinovic v. Eberlin Page 5

3

Cvijetinovic disputes the necessity of resolving this issue, arguing that a petitioner “does not

need to prove cause and prejudice where the new constitutional rule was promulgated while [his] case was

not yet final.” Appellee’s Br. at 13. He bases this contention on the Supreme Court’s decision in Griffith

v. Kentucky, 479 U.S. 314, 328 (1987), which held 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 . . . .” However, as the Fifth Circuit has noted, “[p]rocedural default rules are not trumped by the

retroactivity of later decided cases.” United States v. McCrimmon, 443 F.3d 454, 462 n.44 (5th Cir. 2006);

see also United States v. Levy, 391 F.3d 1327, 1329 (11th Cir. 2004) (en banc) (“[T]he rules of

retroactivity are subject to established principles of procedural default, waiver, and the like.”). As a result,

if Cvijetinovic cannot establish cause and prejudice to excuse his procedural default, Blakely’s retroactivity

is immaterial to the disposition of this case.

F.3d 222, 236 (6th Cir. 2009) (“A defendant can overcome a procedural default by

showing (a) cause for the default and (b) actual prejudice from it.”). Consequently, we

may only affirm the district court’s judgment if we are satisfied that Cvijetinovic has

demonstrated both cause and prejudice.3 Ultimately, we are not so persuaded.

Our inquiry begins and ends with the issue of cause. “[T]he existence of cause

for a procedural default must ordinarily turn on whether the prisoner can show that some

objective factor external to the defense impeded counsel’s efforts to comply with the

State’s procedural rule.” Murray, 477 U.S. at 488; see also Shorter v. Ohio Dep’t of

Rehab. & Corr., 180 F.3d 723, 726 (6th Cir. 1999) (noting that petitioner had failed to

demonstrate cause because his “[c]ounsel’s efforts to comply with the State’s procedural

rule were not impeded by some objective factor external to the defense”). “Such factors

may include ‘interference by officials,’ attorney error rising to the level of ineffective

assistance of counsel, and ‘a showing that the factual or legal basis for a claim was not

reasonably available.’” Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004)

(quoting McClesky v. Zant, 499 U.S. 467, 493–94 (1991)).

Invoking the third factor, Cvijetinovic contends that cause exists because, at the

time of his default, his Blakely claim was “so novel that its legal basis [was] not

reasonably available . . . .” Reed v. Ross, 468 U.S. 1, 16 (1984). “A claim may be held

sufficiently novel when, at the time of its default, the legal tools, i.e., case law, necessary

to conceive and argue the claim were not yet in existence and available to counsel.”

Poyner v. Murray, 964 F.2d 1404, 1424 (4th Cir. 1992) (citing Engle v. Isaac, 456 U.S.

107, 130–33 (1982)); see also McBee v. Grant, 763 F.2d 811, 816 (6th Cir. 1985) (noting

that a finding of cause on the basis of novelty is inappropriate where, prior to defaulting
No. 08-3629 Cvijetinovic v. Eberlin Page 6

4

The Supreme Court decided Apprendi on June 26, 2000, whereas Cvijetinovic's first appeal was

not initiated until July 12, 2002.

5

In the words of one such commentator, “[t]he Court’s rationale [in Apprendi] would seem to

support the proposition that any factual determination subjecting the criminal defendant to greater

punishment or stigma should be determined by a jury under the reasonable doubt standard, even if the

defendant’s increased punishment remains within the statutory sentencing range.” Erron W. Smith, Note,

Apprendi v. New Jersey: The United States Supreme Court Restricts Judicial Sentencing Discretion and

Raises Troubling Constitutional Questions Concerning Sentencing Statutes and Reforms Nationwide, 54

Ark. L. Rev. 649, 692 (2001); see also Justin A. Thornton & Mark H. Allenbaugh, Apprendicitis: A

Troubling Diagnosis for the Sentencing of Hackers, Thieves, Fraudsters, and Tax Cheats, 9 Geo. Mason

L. Rev. 419, 420 (2000) (“[T]he implications of Apprendi’s rationale are . . . far-reaching.”). Indeed,

Justice O’Connor suggested as much in her Apprendi dissent. Forecasting the decision’s consequences,

Justice O’Connor noted that Apprendi’s “most significant impact . . . will be a practical one—its unsettling

effect on sentencing conducted under current federal and state determinate-sentencing schemes. . . . [T]he

Court does not say whether these schemes are constitutional, but its reasoning strongly suggests that they

are not.” 530 U.S. at 550–51 (O’Connor, J., dissenting).

his constitutional claim, the defendant had “the tools to construct [it]” (quoting Engle v.

Isaac, 456 U.S. at 133)). “[W]here other defense counsel have raised the claim, the issue

can hardly be novel[.]” Wheeler v. United States, 329 F. App’x 632, 636 (6th Cir. 2009)

(discussing Bousley v. United States, 523 U.S. 614, 623 n.2 (1998)); see also Meanes v.

Johnson, 138 F.3d 1007, 1011 (5th Cir. 1998) (“[W]e note that a claim is not novel if

‘other defense counsel have perceived and litigated that claim.’” (quoting Engle, 456

U.S. at 134)).

In light of these principles, Cvijetinovic’s Blakely claim was not novel in a way

that warrants a finding of cause. The instruments necessary for the construction of such

a claim were furnished in Apprendi, which was handed down more than two years in

advance of Cvijetinovic’s initial appeal.4 In Apprendi, the Supreme Court held that,

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 466. This holding was predicated on a simple

premise, namely, “that it is wrong to convict a person of one crime and impose

punishment for another[.]” Erwin Chemerinsky, Supreme Court Review: A Dramatic

Change in Sentencing Practices, 36 Trial 102, 104 (Nov. 2000). As numerous

commentators quickly recognized, the rationale for the holding in Apprendi also

supported the eventual holding in Blakely,

5

 wherein the Court announced “that the

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
No. 08-3629 Cvijetinovic v. Eberlin Page 7

6

Determining that Cvijetinovic’s Blakely claim was nonetheless unavailable, the district court

pointed to our decision in United States v. Burgess, 142 F. App’x 232, 240 (6th Cir. 2005), in which we

held that “trial counsel cannot be deemed ineffective for failing to anticipate the Supreme Court’s . . .

holding in Blakely that the Sixth Amendment precluded the imposition of a sentence . . . based on facts not

found by a jury or admitted by the defendant.” However, “the standard for ‘cause’ to excuse a procedural

default differs from the standard for objective unreasonableness of counsel.” Pitts v. Cook, 923 F.2d 1568,

1571 (11th Cir. 1991) (citing Pelmer v. White, 877 F.2d 1518, 1521–23 (11th Cir. 1989)). The gap in these

standards means that a legal theory may simultaneously be “not so novel as to excuse procedural default

. . . [and] not so established that failure to raise [it] constitute[s] ineffective assistance of counsel[.]” Id.

at 1571–72 (discussing Pelmer, 877 F.2d at 1521–23). Burgess is consequently immaterial to the question

whether Cvijetinovic had cause for procedurally defaulting his Blakely claim.

impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” 542 U.S. at 303 (citing Ring v. Arizona, 536 U.S. 584, 602 (2002)). Thus,

after Apprendi, defense counsel were armed with the weapon they needed to attack the

constitutionality of sentencing enhancements imposed on the basis of judge-found facts.6

And many defense counsel did. Indeed, Apprendi spurred many Blakely-type

claims in fora across the country. See, e.g., Sexton v. Kemna, 278 F.3d 808, 814 n.5 (8th

Cir. 2002) (“[Defendant] also argues that his [state] sentence was based upon ‘sentencing

factors’ not proved beyond a reasonable doubt, contrary to [Apprendi].”); Arizona v.

Cox, 37 P.3d 437, 441–42 (Ariz. Ct. App. 2002) (“Relying on [Apprendi], Appellant

argues that he is entitled to a jury trial on the § 13-604.2(B) allegation.”); Oregon v.

Dilts, 39 P.3d 276, 279 (Or. Ct. App. 2002) (“According to defendant, under the

sentencing guidelines, in the absence of substantial and compelling reasons to depart

from a presumptive sentence, the prescribed statutory maximum for a crime is the

presumptive sentence.”). Even more telling, however, is the fact that a number of

attorneys asserted that Ohio Rev. Code § 2929.14(B)—the very provision under which

Cvijetinovic’s presumptive sentence was increased—was unconstitutional in the wake

of Apprendi. See, e.g., State v. Neal, No. 2001CA00067, 2001 WL 1771034, at *3 (Ohio

Ct. App. August 13, 2001) (“Appellant maintains R.C. 2929.14(B) is unconstitutional

in light of the United States Supreme Court’s holding in Apprendi[.]”); State v. Johnson,

Nos. L-00-1327, L-00-1326, L-00-1325, 2001 WL 256181, at *2 (Ohio Ct. App. March

16, 2001) (dismissing as moot appellant’s argument that Apprendi rendered

§ 2929.14(B) unconstitutional). Given the prevalence of this argument prior to the
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7

The thrust of the dissent is that a petitioner should not be required to raise a claim that is

“actually” futile. The problem is, a Blakely-type claim was not “actually” futile in this case. While many

courts had determined that Blakely-style arguments were unpersuasive, the issue had not been ruled upon

by the Supreme Court. What is more, certain members of the Court had openly opined that the holding

in Blakely was an inevitable outgrowth of the decision in Apprendi. See Apprendi, 530 U.S. at 550–51

(O’Connor, J., dissenting). Thus, it cannot be said that a Blakely-type claim was actually futile. Unless

the Supreme Court has decisively foreclosed an argument, declarations of its futility are premature.

commencement of his appeal, Cvijetinovic cannot rely on the alleged novelty of his

Blakely claim to establish cause for his procedural default.

Nor can he rely on his claim’s perceived futility. In excusing Cvijetinovic’s

default, the district court placed heavy emphasis on the observation that, when he

initiated his direct appeal, resort to a Blakely-type claim would have been “manifestly

futile,” as “every [federal] Circuit Court believed Apprendi permitted judicial factfinding within the [G]uidelines range . . . .” Cvijetinovic, 617 F. Supp. 2d at 643, 646.

But as the Supreme Court held in Bousley v. United States, “futility cannot constitute

cause if it means simply that a claim was ‘unacceptable to [a] particular court at [a]

particular time.’” 523 U.S. 614, 623 (1998) (quoting Engle, 456 U.S. at 130 n.35); see

also Smith v. Murray, 477 U.S. 527, 535 (1986) (noting that it is an “established rule that

perceived futility alone cannot constitute cause” (citations and internal quotation marks

omitted)). As a result, the alignment of the circuits against a particular legal argument

does not equate to cause for procedurally defaulting it. See Wheeler, 329 F. App’x at

636 (“The fact that we were unreceptive to the Apprendi argument at the time cannot

excuse [defendant’s] failure to raise the issue.” (citing Bousley, 523 U.S. at 623)); see

also McCoy v. United States, 266 F.3d 1245, 1258–59 (11th Cir. 2001) (“The fact that

every circuit which had addressed the issue had rejected the proposition that became the

Apprendi rule simply demonstrates that reasonable defendants and lawyers could well

have concluded it would be futile to raise the issue. . . . [But] the Supreme Court could

not have been clearer that perceived futility does not constitute cause to excuse a

procedural default.”); United States v. Moss, 252 F.3d 993, 1002 (8th Cir. 2001) (“The

Supreme Court has rejected the argument that default can be excused when existing

lower court precedent would have rendered a claim unsuccessful.”).7
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8

Although the dissent finds a contradiction, we cite Newton accurately for his exposition of what

the law is, not for what he thinks it ought to be. 

Admittedly, this rule could, under certain circumstances, lead to some potentially

undesirable results. One jurist predicted that “defense counsel will have no choice but

to file one ‘kitchen sink’ brief after another, raising even the most fanciful defenses that

could be imagined based on long-term logical implications from existing precedents.”

United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting from

denial of rehearing en banc). However, “[u]nless and until the Supreme Court overrules

its decisions that futility cannot be cause, laments about those decisions forcing defense

counsel to file ‘kitchen sink’ briefs in order to avoid procedural bars are beside the

point.” McCoy, 266 F.3d at 1259; see also Brent E. Newton, An Argument for Reviving

the Actual Futility Exception to the Supreme Court’s Procedural Default Doctrine, 4 J.

App. Prac. & Process 521, 544 (2002) (“Bousley . . . appear[s] to have nailed the coffin

shut on futility as an exception to the procedural default doctrine in the federal

courts[.]”).8

 Furthermore, allowing defendants to refrain from making certain arguments

on the basis of perceived futility would also have deleterious consequences: it would

“invite criminal defendants to bypass the preferred procedural avenue of trial and direct

appeal in favor of collateral review. Collateral review would come in turn to serve as

an all-purpos[e] receptacle for claims which in hindsight appear more promising than

they did at the time of [appeal].” United States v. Sanders, 247 F.3d 139, 145–46 (4th

Cir. 2001). 

As Cvijetinovic offers no other excuse for his default, we conclude that he has

not established cause, thereby freeing us of the duty to evaluate whether he has shown

prejudice. See Bonilla v. Hurley, 370 F.3d 494. 497 (6th Cir. 2004) (“Since both cause

and prejudice must be shown to excuse a procedural default, the failure to establish

cause eliminates the need to consider prejudice.” (citing Murray, 477 U.S. at 494–95)).
No. 08-3629 Cvijetinovic v. Eberlin Page 10

IV

Because Cvijetinovic has not shown cause for procedurally defaulting his Blakely

claim, we REVERSE the district court’s conditional grant of a writ of habeas corpus.
No. 08-3629 Cvijetinovic v. Eberlin Page 11

1

Significantly, this Circuit has never before specifically addressed whether failure to present an

argument to expand Apprendi prior to Blakely precludes the defendant from establishing “cause” in the

habeas context.

_________________

DISSENT

_________________

KEITH, Circuit Judge, dissenting. The majority’s interpretation of Engle v.

Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require

defense counsel to anticipate and articulate constitutional arguments that are contrary to

controlling Supreme Court precedent. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th

Cir. 1991). This reading is not only unfounded but also poses worrying policy concerns.

Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes

sufficient cause to excuse procedural default, I respectfully dissent. 

The majority cites the Eleventh Circuit for the proposition that cases involving

cause for procedural default are governed by a different and more difficult standard than

those challenging the adequacy of counsel’s performance. Id. Under the latter,

counsel’s failure to predict changes in constitutional law is not error. See United States

v. Burgess, 142 F. App’x 232, 241 (6th Cir. 2005) (citing Fuller v. United States, 398

F.3d 644, 651 n.4 (7th Cir. 2005)). Under the former, counsel must advance federal

constitutional claims in state courts if fellow attorneys have done so. Smith v. Murray,

477 U.S. 527, 535 (1986). The majority contends that the duty holds even if no court in

the nation has credited the claim.1

 However, the Supreme Court could not have intended

that defense counsel be required to advance actually futile claims.

In support of its view, the majority notes that “futility cannot constitute cause if

it means simply that a claim was ‘unacceptable to [a] particular court at [a] particular

time.’” Engle, 456 U.S. at 130 n.35 (emphasis added). Yet, even two years after

Apprendi, every federal circuit upheld judicial fact-finding as an acceptable means of

enhancing a sentence within the prescribed Guidelines range. See, e.g., United States

v. Leachman, 309 F.3d 377 (6th Cir. 2002) (collecting cases). Such unanimity at the
No. 08-3629 Cvijetinovic v. Eberlin Page 12

federal level is quite a different beast than “the futility of presenting an objection to the

state courts.” Engle, 456 U.S. at 130. Further, such unanimity was not present in Engle,

wherein “numerous courts [had] agreed” that the defendant’s lead argument, that “the

Due Process Clause requires the prosecution to bear the burden of disproving certain

affirmative defenses,” was colorable. 456 U.S. at 133. The Engle Court warned the

defendant who “perceives a constitutional claim and believes it may find favor in the

federal courts” not to “bypass the state courts simply because he thinks they will be

unsympathetic to the claim.” 456 U.S. at 130 (emphasis added). Here, Cvijetinovic was

sentenced below the statutory maximum though his sentence was increased on the basis

of judicially-found facts. He simply had no claim in a pre-Blakely world. I would

therefore “hesitate to adopt a rule that would require trial counsel either to exercise

extraordinary vision or to object to every aspect of the proceedings in the hope that some

aspect might mask a latent constitutional claim.” Engle, 456 U.S. at 131. 

To that end, I believe the majority too quickly disposes of the argument that its

holding will compromise judicial economy. To preserve claims on appeal, even futile

ones, defense counsel must serve as both representative and prophet. Their briefs

become experiments in, rather than mere exercises of, advocacy. One commentator has

indicated that “encouraging prisoners to repeatedly urge state judges to rethink old

precedents shows little respect for state courts and their decisions, but instead

encourages defense counsel to raise issues the state courts consider settled, thereby

wasting judicial time and resources and perhaps exacerbating federal-state tensions.”

Kit Kinports, Habeas Corpus, Qualified Immunity, and Crystal Balls: Predicting the

Course of Constitutional Law, 33 Ariz. L. Rev. 115, 135 (1991). Accordingly, I agree

with Judge Woods’s prediction that “defense counsel will have no choice but to file one

‘kitchen sink' brief after another, . . . based on long-term logical implications from

existing precedents.” United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001). The

potential consequences of requiring “a virtually omniscient counsel in the cause sphere”

are serious, because the requirement makes it more likely that procedural deficiencies

will trump a prisoner's meritorious assignments of constitutional error. See Yale L.

Rosenberg, Constricting Federal Habeas Corpus: From Great Writ to Exceptional
No. 08-3629 Cvijetinovic v. Eberlin Page 13

Remedy, 12 Hastings Const. L.Q. 597, 627 (1985). Arguing that mention of “kitchen

sink briefs” is “beside the point,” the majority cites Brent E. Newton, An Argument for

Reviving the Actual Futility Exception to the Supreme Court’s Procedural Default

Doctrine, 4 J. App. Prac. & Process 521, 544 (2002) (hereinafter “Reviving”). However,

that author's analysis might well compel a result other than that reached here. “Logically

and equitably,” Newton writes, “actual futility—as opposed to a defendant’s mere

perception of futility when in fact an objection would not necessarily have been

futile—should excuse a procedural default.” Id. (emphasis added). “If, however, a court

before which a defendant appears has the power to grant relief on particular claim of

error (i.e., a superior court addressing the same issue has not already ruled that such a

claim lacks merit), then the futility exception should not apply.” Id. Cvijetinovic’s

second direct appeal became final on May 26, 2004, just nine days prior to the Supreme

Court's decision in Blakely. The Ohio courts to which Cvijetinovic appealed roundly

rejected Blakely-like arguments before Blakely was handed down. See, e.g., State v.

Neal, No. 2001CA00067, 2001 WL 1771034, at *3 (Ohio Ct. App. August 31, 2001);

State v. Johnson, Nos. L-00-1327, L-00-1326, L-00-1325, 2001 WL 256181, at *2 (Ohio

Ct. App. March 16, 2001). It follows that Cvijetinovic’s strongest argument, that the

statute under which he was sentenced was unconstitutional, was actually futile. Newton

writes that “no legitimate governmental interest would be served by requiring an

objection” where a “state or federal trial court would be utterly powerless to grant any

relief on the objection,” and indicates that “a state or federal appellate court—even a

state supreme court or en banc United States Court of Appeals—would be without power

to overrule precedent of the United States Supreme Court.” Reviving, 4 J. App. Prac.

& Process at 555. It follows that the majority's own authority cuts in Cvijetinovic’s

favor on policy grounds. 

Finally, the aforementioned competing standards seem to disaggregate the

counsel-client relationship. In Burgess, for example, we noted that “[a]s a matter of law,

there simply is no basis for Burgess's assertion that his counsel's failure to predict th[e]

novel line of authority [stemming from Blakely] ‘fell below an objective standard of
No. 08-3629 Cvijetinovic v. Eberlin Page 14

2

See also, e.g., United States v. McDaniel, 398 F.3d 540, 547 (6th Cir. 2005) (collecting cases

in which failure to raise Apprendi prior to Blakely was not bar to defendants challenging their sentence

post-Blakely); and States v. Stines, 313 F.3d 912, 917 (6th Cir. 2002) (“[i]t would have been impossible

for the defendants to have intentionally relinquished or abandoned their Apprendi claims considering

Apprendi was decided after they were sentenced”). And in Foster, the Ohio Supreme Court noted that “no

one could have predicted that Blakely would extend the Apprendi doctrine to redefine ‘statutory

maximum.’” Foster, 109 Ohio St. 3d at 11. I therefore find persuasive the notion that “a claim is not

reasonably available, without more, when the claim is based on the Supreme Court’s intervening

overruling of its own precedent.” Richardson v. McCann, 653 F. Supp. 2d 831, 844 (N.D. Ill. 2008).

reasonableness.’”2 Burgess, 142 F. App’x 232, 241. Counsel’s boon is his client’s

burden. Where, as here, counsel advances a Blakely claim only after Blakely, itself, was

decided, the client pays the price of his freedom. I submit that requiring prescience in

cases involving a question of cause, while excusing lack of prescience in cases involving

the ineffective assistance of counsel, establishes a potentially inconsistent framework for

the adjudication of habeas claims. For these reasons, I respectfully dissent.