NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0535n.06 No. 09-4531 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHARLES B UTLER, P etitioner -Appellant,

v. WARDEN, LEBANON CORRECTIONAL INSTI TUTION, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP PEAL F ROM THE UNITED STA T ES DISTRICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

Before: G IBBO NS, GRIF F IN and DONALD, Circuit Judges. JULIA SMITH G IBBO NS, C ircuit Judge. Petitioner-appe llant Charles Butler , an Ohio inmate convicted of m anslaug hter and possessing a wea pon under a

disability , appea ls the district court’s denial of his petition for a writ of habeas corpus pursuan t t o 2 8 U. S

. C

. § 2254. For the

rea sons below, we a ffirm the district c ourt’s dec ision to deny Butler ’s habeas petition. I. I n Marc h 2005, an Ohio g rand jury returne d a three -count indictment ag ainst Charles Butler

. The indictment char g ed Butler with murder with an associate d firea rm specific ation, in violation of Ohio Revised Code § 2903.02(A); car ry ing a wea

pon under a disability , in violation of Ohio Revised Code § 2923.13(A)( 3 ); and car ry ing a conce aled wea

pon, in violation of Ohio Revised Code §

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arden, Lebanon Corr. Inst. 2923.12(A). Butler pled g uilty to two counts: (1) a reduc ed char g e of voluntary manslaug hter with a fire arm spec ification and ( 2) having a we apon under a disability . The c oncea led wea pon char g e

wa s dismiss ed. The plea ag ree ment stated that the sentenc e rang e was three to ten y ea rs ’ imprison me n t f o r th e manslaug hter char g e, a mandatory three y ear s’ imprisonment for the associate d firea rm specific ation, and o n e to five y ear s’ imprisonment for the conce aled wea pon char g e—a maxi mum of eig hteen y ear s of i mprisonment. The plea ag ree ment set forth a

n ag ree d sentenc e of
sevente en y ear s of imprisonment. This ag ree d-upon sentenc e repr esente d ten y ear s for the voluntary manslau gh t er count, three y ear s for the firea rm specific ation, and four y ear s for having a wea pon under a disability

. The plea ag ree ment stated the following : “I understand my rig ht t o ap p eal a maxi mum sentence , my other limited appellate rig hts, and that any appea l must be filed within 30 day s of my

sentenc e.” On Aug ust 1, 2005, the state trial cour t conducted a pl ea colloquy

. At that hear ing, B utler indicated that he had rea d and understood the form in which he enter ed a plea of g uilty to an ag ree dupon sentenc e. The trial judge confirme d that Butler had voluntari l y s i gn ed the plea ag ree ment containing the ag ree d-upon sentenc e, and w ished to plead g uilty to voluntary manslaug hter with a firea rm specific ation and having a wea pon under a disability

. The trial judge also stated t hat “the maxi mum pe nalty y ou fac e here today under the plea ag ree ment y ou ag ree d to with the State is 18 y ear s in the state penitentiary

. . . .” The trial judge continued that “I ’m not obliga ted to g ive y ou the ag ree d sentenc e. I

don’t have to give y ou that. I can g ive y ou any thing in this case from the thre e

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y ear s for the g un specific ation all the way up to 18 y ear s.” The trial judge then found Butler g uilty of voluntary

manslaug hter with a f

irea rm specif ication and ha ving a

wea pon under disability

. On Aug ust 15, 2005, the trial judge conducte d a sentenc ing hear ing and imposed the ag ree dupon sentenc e of sevente en y ea rs ’ imprisonment. This sentenc e repr esente d, as in the plea ag ree ment, ten y ear s for manslaug hter and three y ear s for the firea rm specific ation, plus four y ear s for having a wea

pon under a disability

. The judge s u b s eq u en t ly stated that “I have g iven y ou in Count I [t he manslaug hter count] the maxi mum sentenc e, beca use I find that y ou possess the g rea test likelihood of future crime.” Finally , the trial judge stated that “You do have cer tain rig hts to appea l, Mr. Butler

. You can appea l a ny thing in this case that y ou want to. I f y ou can’ t a ffor d an attorney , one will be provide d for y ou at no cost.” Butler appea led. He arg ued t h at t h e i m p osition of a maxi mum sentenc e was contra ry to Blakely v. W

ashington , 542 U.S. 296 (2004), beca use it require d judicial fac t-finding bey ond those fac ts he specific ally admitted. Butler also arg ued that, beca use his rig hts under Blakley wer e never explained to him, he did not enter into the plea knowing ly or voluntarily

. The Ohio Court of Appea ls aff irmed the trial c ourt along the following lines: Even a fter the rele ase of State v. Foster , [845 N.E.2d 470 ( Ohio 2006)], a sentenc e like But l er ’s “that is authorized by law, rec ommended jointly by defe nse and prosec ution, and imposed by the sentenc ing judge is not subject to revie w.” State v. Mathis , [846 N.E.2d 1 (Ohio 2006)], at ¶ 24[.] Although R.C. 2953.08(D) fore closes revie w of an agr eed sentence , appellate revie w of the trial cour t’s compliance with the dictates of Crim.R. 11(C) is still pr oper. The rec ord re flec ts that the trial court, pursuant to Crim.R. 11(C), ensure d that Butler ’s plea was made kn o wi ng ly and voluntarily . We, theref

ore, . . . a ffirm the judg ment of the trial c ourt. Butler then soug ht leave to a

ppeal to the Ohio Supre me Court but was denie d.

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Butler subsequently filed a habeas petition in federa l court. He arg ued, inter alia , that his
sentenc e violated Blakely , that he wa s ineffe ctively advised by

counsel a bout Blakely , and that the Ohio Court of Appea ls’s ref usal to consider his claim pursuant to Ohio Revised Code § 2953.08(D) violated his due proce ss and equal protec tion rig hts. A United States Mag istrate J udg e issued a Report and Recommenda tion (“R& R”), which rec ommended deny i n g al l of Butler ’s asser ted g rounds of relief

. Butler filed objections to the R&R. The district c ourt subsequently adopted the R&R in its entirety and denied Butler ’s habeas petition. Butler v. W arden, Lebanon Corr. Inst. , No. 1:08cv1, 2009 WL 4250028 (S.D. Ohio Nov. 23, 2009). Butler then appealed. We g rante d a certifica te o f ap p eala

bility with respe ct t o two issues: (1) whether Butler’ s non-minimum sentenc es were imposed in violation of t he S ix th Amendment and Blakely ; and (2) whether the Ohio Court of Appea ls violated Butl er ’s due proce ss and equal protec tion rig hts by ref

using to revie w the alleg edly illega l sentenc es pursuant to Ohio Revised Code § 2953.08(D). II. Be cause the Antiterror ism and Effe ctive Dea th Penalty Act (“A EDPA”) g overns this case ,
we r eview de novo the district c ourt’s conclusions on issues of law and on mix ed questions of law and fac t. Montgomery v. Bobby , 654 F.3d 668, 676 (6th Cir. 2011) ( en banc ). We also revie w the district court’s fac tual finding s de novo , as the district court did not conduct an evidentiar y hear ing and relied solely upon the state court rec ord. See Matthews v. Ishee , 486 F.3d 883, 889 (6th Cir. 2007).

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Under AEDPA, we revie w “the last rea soned state-c ourt decision on the issue to deter mine whether that decision ‘wa s contra ry to, or involved an unrea sonable applica t ion of, clea rly established Feder al l aw, as deter mined by the S upreme Court of the United States,’ or ‘wa s based

on an unrea sonable deter

mination of the fac ts.’” Ruhlman v. Brunsman , 664 F.3d 615, 619 (6th Cir. 2011) (quoting 28 U.S.C. § 2254(d))

. “A state court’s d etermination is contra ry to clea

rly established fede ral law if ‘t h e state court arr ives at a conclusion opposite to that rea ched by [t he Supreme Court] on a question of law or if the state court decide s a case differ ently than [t he Supreme Court] has on a set of materia lly indisti ng uishable fac ts.’” Id. (quoting W illiams v. Taylor , 529 U.S. 362, 412–13 (2000))

. “A state-c ourt decision is a n unrea sonable application of clea rly established fede ral law ‘if the state court identifies the correct g overning leg al principle from [t he Supreme Court’s] decisions but unreasonably applies that principle to the f acts of the prisoner’ s case .’” Id

. (quoting W

illiams , 529 U.S. at 413). I mportantly , “an unreasonable applicatio n o f fe dera l law is differ ent from a

n incorrect application of fede ral law,” W illiams , 529 U.S. at 410, suc h that “eve n

a strong case for re l i ef does not mean the state court’s contra ry conclusion was unrea sonable.” Harrington v. Richter , 131 S. Ct. 770, 786 (2011). This “hig hly defe rential standard” require s that deter minations made in state court “be g iven the benef it of the doubt.” Cullen v. Pinholster , 131 S. Ct. 1388, 1398 (2011) (interna l quotations marks omitt ed). III.

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The hear t of Butler ’s cl aim is that the trial judge impermissibly eng ag ed in judicial fac tfinding during sentenc ing. A brief summary of rele van t Un i t ed States Supreme Court and Ohio Supreme Court pre cede nt is necessa ry to understand this arg ument. I n Apprendi v. New Jerse

y , 530 U.S. 466, 490 (2000), the Supreme Court held that “[o] ther than the fac t of a prior convictio n , an y fac t that incre ases the penalty for a crime bey ond the presc ribed statutory maxi mum must be submitt ed to a jury , and proved bey ond a rea sonable doubt.” Four y ear s later, in Blakely , the Supreme Court c larified its holding in Apprendi when considering

a judge ’s decision to sentenc e the defe ndant to 90 months in prison—three y ear s above the 53-month statutory maxi mum—on gr ounds that the defe ndant had a cted with “de liberate crue lty .” 542 U.S.
at 303–04

. T h e Court held that beca use the judge could not have imposed a 90-month sentenc e solely on the basis of facts admit ted by the guilty plea or found by the j ury , the s entenc e ran afoul of the Six th Amendment. Id. at 304–05. The Court he ld: the statutory maxi mum . . . is the maxi mum sentenc e a judge may impose solely on the basis o

f t h e f a cts reflecte d in the jury verdic t or admitted by the defendant

. I n other wor ds, the rele vant statutory maxi mum is not the maxi mum sentence a judg e may impose afte r finding additional fac ts, but the maxi mum he may impose without any addi t i o nal finding s. When a judge inflicts punishment that the jury ’s verdic t alone does n o t al low, the jury has not found all the fac ts which the law makes essential to the punishment, and the judg e excee ds his proper a uthority

. Id. at 303–04 (citations and internal quotation marks omi tted). Subsequently , the C ourt exte n d ed Blakely ’s ra tionale to the Sentencing Guidelines. United St ates v. Booker , 543 U.S. 220, 233–34, 244 (2005).

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Butler was sentenc ed in Aug ust 2005, a y ear afte r Blakely was decide d. Whil e his appea l was pending befor e the Ohio Court of Appea ls, the Ohio Supreme Court decide d State v. Foster , 845 N.E.2d 470 (Ohio 2006 ), wh i ch found a number of provisions of Ohio’s sentenc ing statutes unconstitutional in light o f B l a kely. Most rele vant to this appea l is Ohio Revised Code § 2929.14(C), which stated that “ the court imposing a sentenc e u p o n an o ffe nder for a felony may impose the longest prison term authorized for the offe nse . . . only upon offe nders who c ommitt ed the worst forms of the offe nse, [or] upon offe nders who pose the g rea test likelihood of committing future crimes

. . . .” Id. at 490. Be cause this provision require d the judge to make specific finding s of fac t not admitted by the defe ndant or found by the jury befor e imposing the maxi mum sentenc e, it was not compliant with Blakely

. Id. To reme dy this provision and others deeme d unconstitutional, Foster sever ed them. Id. at 497–98. The result afte r Foster was straig htforwa rd: in Ohio, “trial
courts have full discretion to impose a prison sentenc e within the statutory rang e and are no longe r require d to ma

ke finding s or g ive their rea sons f or imposing maxi mum, c onsecutive, or more than the minimum sentenc es.” Id. at 498. I n other words, post- Foster , trial judge s had the discretion to rende r any

sentenc e within the statutory rang e—without making any finding s of fa ct at all. A. Butler ’s first claim is that the ten-y ear maxi mum sentenc e impose d for his voluntary manslaug hter conviction violated Blakely as interpre ted in Foster. The Ohio Court of Appea ls held that there was no Blakely /Foster violation beca

use the court had imposed a j o i n t l y rec ommended

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sentenc e that was authorized by law—and thus his sentenc e was insulated from appellate revie w under O hio law. See Ohio Rev. Code § 2953.08(D)

. At the time Bu t l er was sentenc ed, the sentenc ing provision g overning his manslaug hter conviction stated that “[f]or a felony of the first deg ree , the prison term shall be three , four, five, six , seven, eig ht, nine, or ten y ear s.” Ohio Rev. Code § 2929.14(A)( 1) (2005). Howeve r, the same statute also provided tha t “the cour t . . . may impose the long est prison term authorized for [a first deg ree felony ] only upon offe nders who committed the worst forms of the o ff en s e, [and] upon offe nd er s wh o pose the g rea test likelihood of committing future crimes

. . . .” Ohio Rev. Code § 2929.14(C) (2 0 0 5 ). I n other words, to impose the maxi mum ten-y ear sentenc e, the judge had to eng ag e in judicial fac t-finding

. Butler arg ues that this is exactly what the trial judge did when he told Butler during the sentenc ing hear ing that “I have g iven y ou in Count I [t he manslaug hter count] the maxi mum sentenc e, beca

use I find that y ou possess the g rea test likelihood of future crime.” Wit hout improper judicial f

act- finding , Butler

arg ues, he w as only

subject to nine y ear s in prison. Had Butler not enter ed into a pl ea agreement setting forth an ag ree d-upon sentenc e, his
sentenc e woul d h av e v i o l ated Blakely as interpre ted in Foster and his case would have been

rema nded. But this ag ree ment is signific ant beca use of two interre lated and important c o nsequenc es of enter ing into such ag ree ments in Ohio. First, under Ohio law, “[o] nce a defe ndant stipulates that a par ticular sente nce is justified, the sente ncing judge no longe r needs to independently justify the
sentenc e.” State v. Porterfield , 829 N.E.2d 6 9 0 , 6 9 4 (O h io 2005). Thus, Porterfield , which was decide d prior to Foster , relie v ed s en t encing judge s from making any judicial finding s when the

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prosec ution and defe nse jointly rec ommend a sentenc e. And second, as long as the ag ree d-upon
sentenc e is “author ized by law,” it is shielded from ap p el l at e re v i ew. See Ohio Rev. Code § 2953.08(D) (“A sentenc e imposed upon a defe ndant is not subject to revie w under this section if the
sentenc e is authorized by law, has been rec ommended jointly by the defe ndant and the prosec ution in the case , and is imposed by a sente ncing judge .”). Butler has failed to show that the Ohio Court of Ap p ea l s’s decision was contra ry to, or an

unrea sonable application of, clea rly established fede ral law as articula ted in Blakely

. Butler enter ed into a plea ag ree ment with the g overnme nt rec ommending a j o i ntly ag ree d-upon sentenc e of
sevente en y ear s and rec eived exactly that sentenc e, which was within the statutory rang e. Thus, he

was sentenc ed pursuant to the terms of his plea ag ree ment and not upon any judicially found fac ts. We have uncover ed no clea rl y established fede ral law sug g esting that a trial judge ’s extraneous comments at a sentenc ing hear ing amount to a Blakely / Foster violation under these circ umstances. I n fac t, persua sive authority among fede ral district and Ohio appellate courts sug g ests the contra ry . See Kelley v. Brunsman , 625 F. Supp. 2d 586, 604 (S.D. Ohio 2009) (adopting Mag istrate J udg e’s
statement that “[t] he trial judge ’s sentenc e arose direc tly from the plea ag ree ment itself and not on any judicially -found fac ts. The trial court acc epted the terms barg ained for by the parties and, under these circ umstances, the Court cannot say that petitioner’s sentenc e violated the Six th Amendment

or Blakely

. . . .”); Carley v. Hudson , 563 F. Supp. 2d 760, 778 (N.D. Ohio 2008) (“A lthough the trial judge made

. . . finding s, he was not require d to do so under Ohio’s sentenc ing laws and the validity of Carley ’s sentenc e was not depende nt on those finding s. Acc ording ly , the trial court’s finding s do

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not chang e the conclusion that Blakely is inapplicable to Carley ’s s en t ence.”) ; see also Batista v. W arden, Lebanon Corr. Inst. , No. 1:08-CV-00635, 2009 WL 3259289, at *10 & n.8 (S.D. Ohio Oct. 7, 2009) (adopte d R&R) (“O hio’s appellate c ourts are in acc ord that the Supreme Court case s leading up to and resulting from Blakely are inapplicable to a stipulated sentenc e authorized by state law and imposed in acc ordanc e with the parties’ plea ag ree ment, which relieve s the onus of fac t-finding from the trial cour

t.”). 1 Acc ording ly , the decision of the Ohio Court of Appea ls, which pursuant t o Ohio Revised Code § 2953.08(D) declined to revie w Butler ’s sentenc e for an alleg ed Blakely /Foster violation, was neither c ontrary

to, nor an unre asonable application of, c lear ly established fe dera l law. B. Butler also arg ues t hat hi s equal protection and due proce s s ri gh t s we re violated when the Ohio Court of Appea ls invoked Ohio Revised Code § 2953.08(D) and ref used to revie w the leg ality of his sentenc e. Under § 2953.08(D), a jointly rec ommended sentenc e that is imposed by the judge

One cour t h a s d e p a r te d f r o m th e o th e r

w is e consistent trend of courts reje cting Blakley /Foster 1 claims simil ar to Butler ’s. See Friley v. W olfe , No. 2:05-cv- 396, 2006 WL 3420209, at *10 (S.D. Ohio Nov. 27, 2006) (holding , contra ry t o t h e p re ce d ent above, that entry into plea containing a jointly -re commended sentenc e did not prec lude the petitioner from making a Blakley claim). Friley does support Butler ’s position. But tellingly , no other courts have relied upon Friley for the proposition Butler advanc es; in fac t, courts have ex pressly disavowed Friley

. See, e.g

. , W arren v. W arden, Noble Corr. Inst. , No. 1:06cv534, 2008 WL 1732976, at * 1 7 (S.D. Ohio Apr. 10, 2008) (“ Friley appea

rs to be contra

ry to the Ohio and fede ral case autho ri ty
. . . .”). Moreove r, Friley mistakenly

relied in pa

rt upon our dec ision in United States v. Amiker , 414 F.3d 606, 607–08 ( 6th Cir. 2005), wher e the defe ndant did not, like Butler , stipulate to a sentenc e and rec eive exactly that same sente nce. T hus, we too dec line to follow Friley

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and “author ized by law” is larg ely shielded from appellate revie w. I n considering Butler ’s 2 challeng e, the Ohio Court of Appea ls found that it did not have au t h ority to revie w his sentenc e beca use it comported with § 2953.08(D ). Butler arg ues that the Ohio Court of Appea ls err ed beca use his sentenc e could not have been “author ized by law” beca

use it violated Blakely

. But as explained in Part I I I .A., supra , his sentenc e

was based not on ju d i ci al fact-finding but on a jointly -re commended sentenc e that fell within the statutory rang e. Thus, beca use there was no violation of Blakely , Butler ’s sentenc e was “author ized by law” unde r Ohio Revised Code § 2953.08( D). Butler also contends that, even if his sentenc e was “author ized by law,” the Ohio Court of Appea ls improperly declined to rea ch the merits of hi s due process claim. Butler arg ues t hat “the

rec ord is reple te with repr esenta tions that [he] was specific ally told that he could appea l,” and thus he was “ig norant of the impact that his plea, and the imposit ion of the rec ommended sentenc e, would have on his ability to appea l his sen t en ce . . . .” Essentially , Butler contends that even though § 2953.08(D) strictly limit ed his rig ht to appea l, he was led to believe otherwise—a nd his due proce ss rig hts were there by

violated. As an initial matter, Foster left Ohio Revised Code § 2953.08(D) fully intact. Batista , 2009 WL 3259289, at *9 n.7; State v. Giesey , No. 05-06-31, 2006 WL 3771982, at *1 (Ohio Ct. App. Dec

.

Ohio Revised Code § 2953.08(D) does not bar a defe ndant’s challeng e that his plea was not 2 knowing or voluntary

. See S t a t e v. S immons , No. C-050817, 2006 WL 3111415, at *2 (Ohio Ct. App. Nov. 3, 2006). I ndeed, Butler did arg ue briefly on direc t appea l that his plea was not knowing , but the Ohio Court of Appea ls rejec ted this arg ument. -11-No. 09-4531

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ther, b y p as sing § 2953.08(D), the Ohio “Ge nera l Assembly intended a jointly ag ree d-upon sentenc e to be protec ted from revie w prec isely beca use the parties ag ree d that the
sentenc e is ap propriate .” Porterfield , 829 N.E.2d at 694. Thus, Butler is asking this court to find—under the highly defe rential standard that AEDPA d em an d s

— that a state court err ed by invoking a valid and fr eq u ently applied state law. By implication, he is also asking this court to ignor e the Ohio leg islature’s intent to shield these ty pes of case s from appellate revie w. By any

measure , this is a tall order. Butler makes a number of arg uments in support of his claim. First, he a rg ues that the trial judge misinformed him that “[y ]ou ca n appea l a

ny thing in this case that y ou want to” when in f act he could not. But the trial judge made this c omment dur ing sentenc ing—two w eeks after the plea hear ing in which Butler ’s plea beca me binding. Thus, the trial judge ’s words could not have aff ecte d Butler ’s dec ision to pl ead g uilty

. Next, Butler asser

ts that no one ever told him of the eff ect that Ohio Revised Code § 2953.08(D) would have o n his rig ht to appea l. Yet Butler cites no authority —let alone clea

rly established fede ral law—for the proposition that a trial court has a positive duty to inform defe ndants who stipulate to sentenc es how § 2953.08(D) will aff ect their appellate rig hts. I n fac t, case law 3 sug g ests the opposite. See Thompson v. Sheets , No. 3:07CV2423, 2009 WL 2176050, at *1–3 (N.D. Ohio J uly 21, 2009) (holding that “the trial court did not have a duty to inform Petitioner of any rig ht

Butler ag ain cites Friley but, as discussed in Part I I I .A., supra , we do not ad o p t F r i ley ’s 3 approa ch, which nume rous cour ts have disavowe d.

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to appea l his stipulated sentenc e” and there fore finding n o due proce ss violation); Holcomb v. W ilson , No. 3:05 CV 803, 2008 WL 2568303, at *3 (N.D. Ohio J une 24, 2008) (holding that, beca use petitioner enter ed into a stipulate d s en tence that prec luded appellate revie w, a failure to inform petitioner a

bout the appellate rig hts he believe d he had w as not err or). That lea ves Butler’s last arg ument. Although his plea ag ree ment stated t hat “I understand my rig ht to appea l a maxi mum sentenc e,” Butler was sentenc ed to ten y ear s (the maxi mum) on the manslaug hter count but could not appea l that sentenc e beca use it was “author ized by law” under Ohio Revised Code § 2953.08(D). This lang uag e appea rs to be boilerplate for Ohio plea ag ree ments during this time period, making Butler ’s case unrema rkable

. See, e .g. , Snead v. W arden, Madison Corr. Inst. , No. 1: 11-cv- 127, 2011 WL 6817872, at *2 (S.D. Ohio De c. 28, 2011) ( R&R); Kelley , 625 F. Supp. 2d at 600. More importantly , a sing le sentenc e fr om Butler’ s plea a g ree ment should
not be stripped from the context of his case . During the plea hear ing, the trial judge informed Butler of t he many rig hts he was waiving by not g oing to trial and specifically ensure d that Butler ’s pl ea

was voluntary

. I ndeed, Butler does not contest the Ohio Court of Appea ls’s conclusion that his “plea

was made knowing ly and voluntarily ” under Ohio law. Not once did Butler indicate—e ither at the plea hear ing or the sentenc ing hear ing—tha t his decision to plead g uilty turned on his understanding of his appellate rig hts or that he was conce rned about his appellate rig hts. See, e.g. , State v. W infield , No. 2005-CA-32, 2006 WL 367 1 2 4 , at * 4 (Ohio C t. App. Feb. 8, 2006) (rejec ting claim that trial
court improperly fa i l ed t o ad vise defe ndant about the eff ect of § 2953.08(D) in part beca use defe ndant “did not premise hi s p l ea o n any discussion about his appellate rig hts” and “did not

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indicate that he wanted to appea l any particula r issue”). Finally , it bear s repe ating that Butler knew the ag ree ment proposed a sevente en-y ear

sentenc e and tha t he re ceive d prec isely that sentenc e. Under these c ircumstance s, we c annot conc lude that the Ohio Court of Appe als’s dec ision
to invoke Ohio Revised Code § 2953.08(D) in the fac e of Butler ’s due proce ss and equal protec tion challeng es wa s contrar

y to, or an unre asonable application of, c lear ly established fe dera l law. IV. For the fore g oing r easons, we aff irm the order

of the district cour

t.

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