*

The Honorable Karl S. Forester, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GLEN EVANS, SR.,

 Petitioner-Appellee,

v.

STUART HUDSON, Warden,

 Respondent-Appellant.

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No. 08-3717

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 07-01291—Sara E. Lioi, District Judge.

Argued: April 23, 2009

Decided and Filed: August 3, 2009 

Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, District Judge.*

_________________

COUNSEL

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

Columbus, Ohio, for Appellant. Craig M. Jaquith, OHIO PUBLIC DEFENDER’S

OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Jerri L. Fosnaught, OFFICE OF

THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Craig M.

Jaquith, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Respondent-Appellant Stuart

Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the

district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen

1
No. 08-3717 Evans v. Hudson Page 2

Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or

release him. Hudson contends that the district court erred in concluding that Evans

received ineffective assistance of appellate counsel because appellate counsel failed to

raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296

(2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the

reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice,

— U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas

relief.

I. FACTS AND PROCEDURE

The underlying facts of this case are not in dispute and were summarized in the

district court opinion:

On November 16, 2004, following a jury trial, Petitioner[, Evans,]

was convicted in the Cuyahoga County Court of Common Pleas on one

count of aggravated murder (O. R. C. § 2903.01), two counts of

kidnapping (O. R. C. § 2905.01), and two counts of felonious assault (O.

R. C. § 2903.11), with fire arm specifications on all counts. On the same

day, the trial judge sentenced Petitioner as follows: on the aggravated

murder count, life with the possibility of parole after 20 years, plus three

consecutive years for the firearm specification; on each of the kidnapping

counts, three years plus three years for the firearm specifications, all to

run concurrent with each other and with count 1; and on each of the

felonious assault counts, four years plus three years for the firearm

specifications, with the specification running concurrent with each base

sentence. The sentence on the felonious assault count relating to victim

Joseph Dixon (Count 5) was to run concurrent with all the others; but the

sentence on the felonious assault count relating to victim Rocky George

Smith (Count 4) was to run consecutive to all the other sentences.

Therefore, Petitioner was sentenced to a total of 27 years to life.

Represented by counsel, [Patrick E. Talty,] Petitioner filed a

direct appeal to the Eighth District Court of Appeals. He assigned the

following errors:

1. The verdict of the jury finding defendant-appellant

guilty of aggravated murder, kidnapping and

felonious assault is against the manifest weight of the

evidence.
No. 08-3717 Evans v. Hudson Page 3

2. The trial court erred in admitting the State’s exhibits

into evidence because they were prejudicial and

cumulative.

3. The trial court erred in sentencing

defendant-appellant to consecutive terms of

imprisonment when it did not follow the statutory

requirements for the imposition of such a sentence.

On September 1, 2005, the appellate court overruled each

assignment of error and affirmed the judgment of the trial court.

On October 25, 2005, [then] represented by [new] counsel,

Petitioner filed a timely appeal to the Supreme Court of Ohio, raising the

following propositions of law:

1. A trial court commits reversible error when it imposes

consecutive sentences on a criminal defendant

without making the appropriate findings of

proportionality required by R.C. 2929.14(E)(4).

2. An appellate counsel fails to provide effective

assistance of counsel when he or she fails to provide

meritorious assignments of error on appeal.

The Ohio Supreme Court accepted the appeal on the second

proposition of law, but ordered the case held for the decisions in State v.

Quinones (No. 04-1771) and State v. Foster (No. 04-1568). On May 3,

2006, after deciding Foster, the Supreme Court sua sponte dismissed the

appeal “as having been improvidently accepted pursuant to the rule

relating to ineffective assistance of counsel announced in Strickland v.

Washington (1984), 466 U.S. 668.” (Doc. No. 6, Exh. 12.)

On May 2, 2007, Petitioner filed the instant application for a writ

of habeas corpus asserting a single ground for relief based on Blakely.

Respondent filed a Return of Writ (Doc. No. 6) and Petitioner filed a

Traverse (Doc. No. 15).

Evans v. Hudson, No. 1:07 CV 1291, 2008 WL 1929983, at *2 (N.D. Ohio Apr. 29,

2008) (unpublished opinion). In his petition for a writ of habeas corpus, Evans contends

that he “was deprived of his right to the effective assistance of appellate counsel, as

guaranteed by the Sixth Amendment to the United States Constitution, based on

appellate counsel’s failure to raise a claim [at the Ohio Eighth District Court of Appeals]

that Petitioner’s sentence was imposed in contravention of the Sixth and Fourteenth
No. 08-3717 Evans v. Hudson Page 4

Amendments to the United States Constitution.” Record on Appeal (“ROA”) at 8 (Pet.

for Writ at 5).

Evans’s petition was referred to a magistrate judge, who issued a Report and

Recommendation recommending that Evans’s petition be denied. ROA at 336. The

magistrate judge noted that Evans had exhausted his ineffective-assistance-of-appellatecounsel claim and that the claim was not procedurally defaulted. However, after

reviewing the sentencing transcript, the magistrate judge concluded that Evans’s

sentence did not violate Blakely and, therefore, Evans could not show that his appellate

counsel’s representation was in violation of Strickland v. Washington, 466 U.S. 668

(1984), for failing to raise a Blakely claim.

The district court adopted the magistrate judge’s finding regarding procedural

default, but rejected the magistrate judge’s Blakely conclusion. The district court

explained that, in State v. Foster, 845 N.E.2d 470 (Ohio 2006), the Ohio Supreme Court

concluded that the statute that the sentencing judge relied upon in imposing Evans’s

sentence, Ohio Rev. Code § 2929.14(E)(4), violated Blakely because, under

§ 2929.14(E)(4), “an Ohio defendant could not be sentenced to consecutive sentences

without additional judicial fact-findings.” Evans, 2008 WL 1929983, at *6.

Furthermore, although Foster post-dated Evans’s sentence, Blakely did not and thus

Evans’s sentence violated clearly established law.

Turning to the issue of ineffective assistance of appellate counsel, the district

court concluded that “[e]ven though the court in Foster stated that ‘[m]ost Ohio appellate

courts [ . . . ] determined that Blakely [was] inapplicable[,]’ Foster, 109 Ohio St. 3d at

17, at the time of Petitioner’s appeal, the appellate court to which he would have taken

his appeal seems to have been leaning in the opposite direction.” Id. at *7 (first

alteration added). The district court found that, “[i]n light of the developing case law at

the time, counsel’s performance was deficient for failing to at least raise the Blakely

issue” on appeal. Id. Additionally, on the issue of prejudice, the district court noted that

it could “have no sure way of knowing what might have happened had Petitioner’s case

been remanded for re-sentencing by the state court,” but that it could not “say for sure
No. 08-3717 Evans v. Hudson Page 5

that Petitioner, had he been resentenced prior to Foster, would have received the same

sentence.” Id. Thus, the district court concluded that Evans had shown prejudice. The

district court conditionally granted Evans’s petition for a writ of habeas corpus and

ordered that Evans be resentenced within 90 days or released. Hudson timely appealed.

After the parties filed their briefs in this court, but before oral argument, the

United States Supreme Court issued an opinion in Oregon v. Ice, --- U.S. ---, 129 S. Ct.

711 (2009), holding that allowing state judges to find facts when determining whether

to impose consecutive sentences does not violate the Sixth Amendment as interpreted

by Blakely. Id. at 714-15. In response to a request by the panel, the parties submitted

letter briefs concerning the impact of Ice on the current appeal.

II. ANALYSIS

A. Standard of Review

“We review de novo a district court’s determinations regarding a habeas

petitioner’s claim of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d

766, 771 (6th Cir. 2008). Moreover, the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) governs all habeas petitions filed after AEDPA’s effective date.

See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). AEDPA provides that

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2) (emphasis added). However, AEDPA’s “deferential standard

of review . . . applies only to a claim that has been adjudicated on the merits in State
No. 08-3717 Evans v. Hudson Page 6

court proceedings.” Brown v. Smith, 551 F.3d 424, 428 (6th Cir. 2008) (internal

quotation marks omitted). When AEDPA deference does not apply, we apply the preADEPA standard of review and review questions of law de novo and questions of fact

for clear error. Brown, 551 F.3d at 430; see also Maples v. Stegall, 340 F.3d 433, 436

(6th Cir. 2003).

In the instant case, it is clear that Evans’s ineffective-assistance-of-appellatecounsel claim was not adjudicated on the merits in the Ohio Supreme Court; rather, the

Ohio Supreme Court, after granting discretionary review of the issue, dismissed the case

sua sponte, explaining only that discretionary review “ha[d] been improvidently

accepted pursuant to the rule relating to ineffective assistance of counsel announced in

Strickland v. Washington (1984), 466 U.S. 668.” ROA at 303 (5/22/06 Ohio Supreme

Court J. Entry). This perfunctory dismissal is not entitled to AEDPA deference; thus,

we will review Evans’s ineffective-assistance-of-appellate-counsel claim under the preADEPA standard of review.

B. Ineffective Assistance of Appellate Counsel

On an appeal of right, a criminal defendant is entitled to effective assistance of

appellate counsel. Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008). Claims of

ineffective assistance of appellate counsel are subject to the Strickland test, which

requires a defendant to show both deficient representation and prejudice. Id. To meet

his or her burden, “a petitioner must show that the performance of counsel fell below an

objective standard of reasonableness and that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Burton v. Renico, 391 F.3d 764, 773 (6th Cir. 2004) (internal quotation

marks omitted); see also Maples, 340 F.3d at 437. When evaluating the issue of

ineffective assistance of appellate counsel, we review the appellate proceedings to

determine whether prejudice is shown. Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004)

(noting that prejudice is shown if “there is ‘a reasonable probability that, but for his

counsel’s [failings] . . ., [the defendant] would have prevailed on his appeal’” (alterations

in original) (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)). “A reasonable
No. 08-3717 Evans v. Hudson Page 7

1

Hudson further argues that Evans cannot prove that his sentence on remand would have differed

from the sentence imposed originally and thus Evans cannot show prejudice. As explained above, such

a showing is not required; when asserting a claim of ineffective assistance of appellate counsel, a petitioner

need show only a reasonable probability that the result of his appeal would have been different. Mapes, 388 F.3d at 194. In other words, here Evans need show only that had appellate counsel raised the Blakely

issue on appeal, there is a reasonable probability that Evans would have received a new sentencing

proceeding.

probability is a probability sufficient to undermine confidence in the outcome.” Burton,

391 F.3d at 773 (internal quotation marks omitted); Maples, 340 F.3d at 437.

Evans’s habeas petition contends that his counsel during his appeal of right to the

Ohio Eighth District Court of Appeals was ineffective because that appellate counsel did

not challenge Evans’s consecutive sentences based on Blakely. Hudson asserts that the

district court erred when it concluded that Evans’s appellate counsel was deficient for

failing to raise the Blakely argument and when it concluded that this failure prejudiced

Evans. Specifically, Hudson contends that: (1) Ice renders Evans’s argument that he

was sentenced in violation of Blakely meritless; (2) at the time Evans’s appellate brief

was filed, a Blakely claim was not clearly stronger than the claims Evans’s appellate

counsel raised; and (3) Evans has not shown prejudice from any alleged error of

appellate counsel.1 We conclude that, in light of Ice and other Supreme Court precedent,

Evans is not now entitled to habeas relief.

In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court was confronted

with an Arkansas state defendant whose trial counsel failed to make an objection to the

aggravating factor upon which his death sentence was based. At the time of sentencing,

the Eighth Circuit Court of Appeals had held, in Collins v. Lockhart, 754 F.2d 258 (8th

Cir. 1985), that the use of the aggravating factor in question was unconstitutional. On

state collateral review, the defendant raised the claim of ineffective assistance of trial

counsel for failing to make a Collins objection, which the state court denied. Defendant

then filed a 28 U.S.C. § 2254 petition, “argu[ing] that his trial counsel did not perform

effectively because he failed to raise the Collins objection.” Fretwell, 506 U.S. at 367.

The district court granted the habeas petition and the Eighth Circuit Court of Appeals

affirmed, even though it had overruled Collins while defendant’s habeas petition was

pending. The Court of Appeals reasoned
No. 08-3717 Evans v. Hudson Page 8

2

We recognize that Fretwell deals specifically with an ineffective-assistance-of-trial-counsel

claim; however, there is no language in Fretwell suggesting that its principles should not be applied to

ineffective-assistance-of-appellate-counsel claims. Moreover, we previously have applied Fretwell to an

ineffective-assistance-of-appellate-counsel claim. Hicks v. United States, 122 F. App’x 253, 257-59 (6th

Cir. 2005).

that the Arkansas trial court was bound under the Supremacy Clause to

obey the Eighth Circuit’s interpretation of the Federal Constitution [in

Collins]. Based on this belief, it reasoned that had counsel made the

objection, the trial court would have sustained the objection and the jury

would not have sentenced respondent to death. . . . It held that since

respondent was entitled to the benefit of Collins at the time of his

original sentencing proceeding, it would only perpetuate the prejudice

caused by the original sixth amendment violation to resentence him

under current law.

Fretwell, 506 U.S. at 368 (internal quotation marks omitted).

The Supreme Court reversed, holding “that the court making the prejudice

determination may not consider the effect of an objection it knows to be wholly meritless

under current governing law, even if the objection might have been considered

meritorious at the time of its omission.” Id. at 374 (O’Connor, J, concurring); id. at 371-

72. The Court noted that “the Sixth Amendment right to counsel exists ‘in order to

protect the fundamental right to a fair trial.’” Id. at 368 (quoting Strickland, 466 U.S.

at 684). Moreover, the Court reasoned that, when evaluating the prejudice prong of

Strickland,

an analysis focusing solely on mere outcome determination, without

attention to whether the result of the proceeding was fundamentally

unfair or unreliable, is defective. To set aside a conviction or sentence

solely because the outcome would have been different but for counsel’s

error may grant the defendant a windfall to which the law does not entitle

him.

Id. at 369-70 (footnote omitted).

Although the holding of Fretwell is very narrow, Northrop v. Trippett, 265 F.3d

372, 385 (6th Cir. 2001), the circumstances of the instant appeal are strikingly similar

to Fretwell.

2

 At the time of Evans’s direct appeal, Evans’s Blakely claim was arguably

meritorious. However, this alone is not enough to show prejudice, because the Supreme
No. 08-3717 Evans v. Hudson Page 9

3

The fact that Foster may still be good law in Ohio does not alter our conclusion. Evans has

asserted only that his appellate counsel was ineffective for failing to raise a Blakely claim, not for failing

to raise a Foster claim. See, e.g., ROA at 8 (Pet. for Writ at 5). Indeed, Evans could not assert that

appellate counsel was ineffective for failing to raise a Foster claim because Foster postdates Evans’s direct

appeal to the Eighth District. Thus, what effect Ice has on Foster is irrelevant to the current appeal, and

we will not speculate on that issue.

Court changed the applicable law with its decision in Ice while Evans’s habeas appeal

was pending. In Ice, the Supreme Court held, “in light of historical practice and the

authority of States over administration of their criminal justice systems, that the Sixth

Amendment does not exclude” a state’s practice of requiring a judge to find certain facts

before she can sentence a defendant to consecutive, rather than concurrent, terms of

imprisonment. Ice, 129 S. Ct. at 714-15. Pursuant to Ice’s holding, Evans’s underlying

claim—that his sentence to consecutive terms based on judge-found facts violates

Blakely—is meritless. Thus, according to Fretwell, Evans cannot show the necessary

prejudice for his claim of ineffective assistance of appellate counsel based on the failure

to raise a now-meritless claim, regardless of the fact that the Blakely claim may have had

merit at the time of Evans’s appeal, because Evans cannot show that his appellate

proceeding was “fundamentally unfair or unreasonable.”3 Fretwell, 506 U.S. at 369;

Hicks v. United States, 122 F. App’x 253, 259 (6th Cir. 2005). A holding to the contrary

would give Evans “a windfall to which the law does not entitle him.” Fretwell, 506 U.S.

at 370. Therefore, we conclude that Evans’s ineffective-assistance-of-appellate-counsel

claim must fail after the Supreme Court’s decision in Ice.

III. CONCLUSION

Because Ice forecloses Evans’s ineffective-assistance-of-appellate-counsel claim,

we REVERSE the district court’s grant of a conditional writ of habeas corpus.