RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0427p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MANUEL ARIAS,

 Petitioner-Appellee,

v.

STUART HUDSON, Warden,

 Respondent-Appellant.

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No. 08-4513

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 06-02220—Jack Zouhary, District Judge.

Argued: October 6, 2009

Decided and Filed: December 16, 2009 

Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Thelma T. Price, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Kristopher A. Haines, OHIO PUBLIC DEFENDER’S

OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Thelma T. Price, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kristopher A. Haines,

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

_________________

OPINION

_________________

SUTTON, Circuit Judge. The warden appeals an order conditionally granting habeas

corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542

U.S. 296 (2004). Arias’s sentence does not violate Blakely, however, because the judicial

fact-finding at issue merely increased his minimum sentence. We accordingly reverse.

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No. 08-4513 Arias v. Hudson Page 2

I.

In December 2003, an Ohio jury found Arias guilty of two counts of rape, three

counts of kidnapping, three counts of gross sexual imposition and one count of sexual

battery. Consistent with Ohio’s sentencing laws at the time, see O.R.C. §§ 2929.14(B), (C),

(E) (2003), the trial court made a number of factual findings that produced a sentence

totaling thirty years on the nine counts. Because six of the nine counts also carried “sexually

violent predator” specifications, Ohio law converted the thirty-year fixed sentence to an

indeterminate sentence with a minimum term of thirty years and a maximum term of life.

See O.R.C. § 2971.03(A)(3) (2003). 

While Arias’s state court appeal was pending, the United States Supreme Court

decided Blakely, holding that under the Sixth Amendment it is “within the jury’s province

to determine any fact (other than the existence of a prior conviction) that increases the

maximum punishment authorized for a particular offense.” Oregon v. Ice, 555 U.S. ___, 129

S. Ct. 711, 714 (2009); see Blakely, 542 U.S. at 313–14. After the Ohio Court of Appeals

affirmed his conviction, Arias moved to reopen the appeal, claiming that Ohio’s sentencing

procedure violated the Sixth Amendment and that he received ineffective representation in

the process because his attorneys failed to object to the violation at trial and on appeal. The

court of appeals denied his motion, reasoning (1) that “Blakely is . . . inapplicable to

Appellant’s sentence” and (2) that trial and appellate counsel could not be found ineffective

for missing an issue that could not have given him relief. He appealed this decision to the

Ohio Supreme Court, which declined to hear his case, as did the United States Supreme

Court. 

Arias petitioned the district court for a writ of habeas corpus, raising the same

Blakely and ineffective-assistance claims. The State answered that Arias had procedurally

defaulted his Blakely and ineffective trial counsel claims, that the Ohio courts had reasonably

rejected his ineffective appellate counsel claims and that in any event the indeterminate

sentence he received did not violate Blakely. The district court conditionally granted the

writ, reasoning that Arias had not procedurally defaulted his claim and that the trial court had

usurped the jury’s role by increasing his sentence based on the court’s own findings of fact.

The court rejected Arias’s ineffective-assistance claims. The State timely appealed. 
No. 08-4513 Arias v. Hudson Page 3

II.

In the normal course, we first would address the State’s challenge to the district

court’s procedural-default ruling. But in this instance the merits of Arias’s Blakely claim

present a more straightforward ground for decision, prompting us to consider this issue at

the outset. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (allowing courts to skip

procedural-default issues and reject claims on the merits). 

Arias’s sentence arises from the overlap of three Ohio statutes. The first statute,

O.R.C. § 2929.14 (2003), implicates the kind of judicial fact-finding that Blakely prohibits,

as the Ohio Supreme Court has correctly determined. See State v. Foster, 845 N.E.2d 470,

494 (Ohio 2006) (finding §§ 2929.14(B) and (C) unconstitutional under Blakely). To

sentence Arias to ten years on each of the three sets of consolidated counts, for example, the

court had to find that Arias “pose[d] the greatest likelihood of committing future crimes.”

O.R.C. § 2929.14(C). In the absence of this finding (or other statutory ones like it), the

judge could have sentenced Arias only to three nine-year sentences totaling twenty-seven

years, not thirty. Had these procedures been the only ones at issue in Arias’s sentence, we

would have little difficulty concluding that the sentence violated Blakely. See Foster, 845

N.E.2d at 490.

But a second statute, O.R.C. § 2971.03(A)(3) (2003), ultimately determined Arias’s

maximum sentence. Because the judge found that Arias was a “sexually violent predator”

on six of the nine counts, the sentence Arias otherwise would have received—thirty

years—became the minimum parole eligibility date of an indeterminate life sentence under

§ 2971.03(A)(3). As a result of this second statute, the judge’s fact-finding at issue here

merely set the lower bound of his sentence, not the upper bound of life imprisonment. 

That brings us to the third statute. Under O.R.C. § 2971.02 (2003), Arias had the

right to have a jury determine whether he was a “sexually violent predator” and thus whether

the life term of § 2971.03 would apply to him. But Arias explicitly waived his right to a jury

trial on that issue. In view of Arias’s decision to waive his right to a jury trial with respect

to this enhancement and in view of the trial judge’s subsequent finding on the point, judicial

fact-finding under § 2929.14—the first statute—could not have increased his maximum

sentence because § 2971.03—the second statute—would have added the same “life tail” at
No. 08-4513 Arias v. Hudson Page 4

the end of it no matter what the judge found under § 2929.14. Put another way, the

challenged fact-finding made a difference to Arias’s minimum sentence (from nine years to

thirty years), but it was the accepted fact-finding that determined whether Arias would

receive a maximum term of life imprisonment. 

This kind of sentence does not violate Blakely. The Sixth Amendment gives a

criminal defendant the right to have a jury find any fact that increases the maximum sentence

the defendant faces, not any fact that increases the minimum sentence. See McMillan v.

Pennsylvania, 477 U.S. 79 (1986). And although McMillan pre-dates the Apprendi line of

cases, see Apprendi v. New Jersey, 530 U.S. 466 (2000), this feature of Sixth Amendment

jurisprudence has remained intact. See United States v. Harris, 536 U.S. 545, 568 (2002)

(rejecting an effort to overrule McMillan in the aftermath of Apprendi). Blakely itself

recognized the point. Even as Blakely invalidated Washington’s sentencing system, it

distinguished that system from the one at issue in McMillan, noting that the latter imposed

only “a statutory minimum if a judge found a particular fact” and therefore did not violate

the Sixth Amendment. 542 U.S. at 304. Because the judicial fact-finding at issue here—like

the judicial fact-finding that McMillan upheld and unlike the judicial fact-finding that

Blakely struck down—increased Arias’s minimum term of imprisonment without affecting

his maximum term of imprisonment, his sentence does not violate the Sixth Amendment. 

See Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (applying Harris to judicial

fact-finding that increased the minimum term of an indeterminate sentence). 

Today’s sentence presents one potential twist on Harris (and McMillan). In Harris,

the defendant was eligible for a fixed sentence, and the judge’s finding of fact increased the

minimum duration of his sentence. 536 U.S. at 551. Arias, by contrast, received an

indeterminate sentence of a number of years to life, and the challenged finding of fact

allowed the judge to increase the minimum number of years before he became eligible for

parole. Judicial fact-finding thus limited the range from which the judge could pick Harris’s

sentence, while it limited the range from which the parole board could pick Arias’s release

date. One perhaps could argue that the Sixth Amendment should forbid the latter even

though it permits the former. 
No. 08-4513 Arias v. Hudson Page 5

But we see no reason to treat this case differently from Harris. Here, § 2929.14

shifted some discretion over Arias’s ultimate release date from the parole board to the judge,

but—as in Harris—did not alter Arias’s maximum potential punishment. See Chontos, 585

F.3d at 1002 (“The Sixth Amendment jury trial right simply ‘ensure[s] that the defendant

will never get more punishment than he bargained for when he did the crime’; it does not

‘promise that he will receive anything less than that.’” (quoting Harris, 536 U.S. at 566

(plurality) (quotation marks omitted))). The jury’s verdict, together with the approved factfinding under §§ 2971.02 and 2971.03, authorized a penalty up to and including life

imprisonment, and Arias will receive no more than life imprisonment—and that is all the

Sixth Amendment requires. See id.

One other point. The continuing vitality of McMillan and Harris may be put to the

test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____,

130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a

defendant’s minimum sentence). The case could be decided by overruling McMillan and

Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case

below. See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what

happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge

imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently

depending on whether it affected the minimum sentence faced by a defendant or the

maximum sentence for which the defendant was eligible. Because the courts have not

treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that

should be applied retroactively to cases whose direct appeal concluded before their

announcement, we see little prospect that the courts will apply any such (potential) change

in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th

Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of

Blakely). 

In the last analysis: McMillan and Harris were good law at the time of Arias’s

sentencing, and they remain so today; the two decisions allow judicial fact-finding that

increases a defendant’s minimum sentence; Arias waived his right to have the jury make any

findings of fact that might increase his maximum sentence; and an increase in the minimum
No. 08-4513 Arias v. Hudson Page 6

term of this sentence is governed by Harris. All of this leaves Arias with no cognizable

basis for challenging his sentence. 

III.

For these reasons, we reverse the judgment granting Arias’s petition for a writ of

habeas corpus and remand the case to the district court.