## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2161

___________ Timothy J. O'Meara, *
* Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Warden Robert Feneis, *
* Appellee. *

___________ Submitted: May 13, 2010 Filed: August 19, 2010

___________ Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

___________ SMITH, Circuit Judge. Timothy J. O'Meara appeals the denial of a writ of habeas corpus. O'Meara was convicted of two counts of second-degree criminal sexual assault in Minnesota state court in April 2000. O'Meara failed to tim ely file a direct appeal. O'Meara did, however, obtain postconviction relief from the Minnesota Supreme Court, which remanded O'Meara's case for resentencing based upon Apprendi v. New Jersey , 530 U.S. 466 (2000). Before O'Meara's resentenci ng, the Supreme Court of the United States decided in Blakely v. Washington that an upward departure from the maximum statutory sentence is unconstitutional under a guideline sentencing system unless a jury finds the underlying facts or the de fendant admits such facts. 542 U.S. 296 (2004). After O'Meara's resentencing, he app ealed to the Minnesota Court of Appeals,1 The Honorable Donovan W. Frank, United St ates District Judge for the District of Minnesota.

2 Section 609.108, subdivision 2, permit[ted] a court to impose a sentence of up to 40 years, "notwithstanding the
-2- arguing that Blakelyapplied to his case. The Minneso ta Court of Appeals concluded that Blakelydid not apply retroactively and affirmed O'Meara's new sentence. The Minnesota Supreme Court subsequently denied review.

O'Meara filed the instant case for federa l habeas relief contending that his new sentence violates Blakely . The district court 1 denied O'Meara's petition after concluding that the Minnesota Court of Appeals did not act contrary to, or unreasonably apply, clearly established fede ral law when it concluded that O'Meara's conviction became final in 2000 when his dir ect-appeal period expired and that, as a result, Blakelydid not apply retroactively to hi s case. We granted a certificate of appealability to address whether the Minnesota Court of Appeals's decision that Blakely did not apply to the determination of O'Meara's sentence was contrary to, or involved an unreasonable application of, clearly established federal law. We now affirm the judgment of the district court.

I. Background In 1999, O'Meara was charged with two counts of second-degree criminal sexual conduct, in violation of Minnesota Statute § 609. 343, subdivision 1(a)(2). He waived his right to a jury trial and stipulatedthat he used a video camera to record two naked boys, ages 9 and 10, ma sturbating. The state trial court convicted O'Meara of both counts.

Prior to sentencing, the prosecution request ed that the state trial court sentence O'Meara as a patterned sex offender unde r Minnesota Statute § 609.108, subdivision 2. 2At the sentencing hearing, a licensed ps ychologist testified that, in his opinion,statutory maximum imprisonment penalty otherwise provided for the offense." A de fendant c[ould] be sentenced to an increased penalty under subdivision 2 only if "the factfinder determines, at the time of the trial or the guilty plea, that a predatory offens e was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration, as defined in section 609.341, and the court is imposing a sentence under subdivision 1."

State v. Grossman , 636 N.W.2d 545, 549 (Minn. 2001) (quoting Minn. Stat. § 609.108, subdiv. 2). In turn, § 609.108, subdivision 1(a), require[d] a court to impose a sentence of not less than double the presumptive sentence and not more th an the statutory maximum sentence when each of the following three cond itions [was] satisfied: First, the court must be imposing a sentence for a conviction of any of four enumerated offenses, including firs t-degree criminal sexual conduct, or for a conviction of any other predat ory crime "if it reasonably appears to the court that the crime was motivat ed by the offender's sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as its goal." Minn. Stat. § 609.108, subd. 1(a)(1) (2000). Second, the court must find "that the offende r is a danger to public safety." Id

. subd. 1(a)(2). Third, the court must also find "that the offender needs long-term treatment or supervis ion beyond the presumptive term of imprisonment and supervised release." This finding "must be based on a professional assessment by an examiner experien ced in evaluating sex offenders that concludes that the o ffender is a patterned sex offender." Id . subd. 1(a)(3).

Id . Section 609.108 was repealed effective August 1, 2006.
-3- O'Meara was a "patterned sex offender" w ithin the meaning of § 609.108. The state trial court concluded that O'Meara was a patterned sex offender and sentenced him to two consecutive 40-year prison terms pursuan t to § 609.108, subdivi sions 1 and 2. If the state trial court had sentenced O' Meara under § 609.343, subdivision 2—criminal3 O'Meara filed his appeal three days after the August 6, 2000 due date. As a result, his appeal was dismissed.

4 The Supreme Court decided Apprendi on June 26, 2000.
-4- sexual misconduct—rather than the pattern ed sex offender statute, the maximum sentence for each count would have been 25 years' imprisonment.

O'Meara failed to timely appeal his judgment of conviction. 3 But before the time period in which he could have directly appealed e xpired, the Supreme Court of the United States decided Apprendi

. 4 In April 2002, O'Meara petitioned for state postconviction relief, arguing, inter alia, that his sentence violated Apprendi . The state trial court denied O'Meara's petition for postconviction relief, and the Minnesota Court of Appeals affirmed. O'Meara v. State , No. C0-02-1982, 2003 WL 21743557 (Minn. Ct. App. July 29, 2003) (unpublished) (" O'Meara I ").

On May 13, 2004, the Minnesota Suprem e Court reversed, holding that the Minnesota Court of Appeals erred in concluding that O' Meara was not entitled to the benefit of Apprendi

. O'Meara v. State , 679 N.W.2d 334, 341 (Minn. 2004) (" O'Meara II "). According to the court,

if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule. But if the defendant's conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.

Id . at 339–40 (footnotes omitted) (citing Griffith v. Kentucky , 479 U.S. 314 (1987); Teague v. Lane , 489 U.S. 288 (1989)). The court then addressed when O'Meara's conviction became "final," stating:-5- O'Meara's appeal period expired on August 6, 2000. Having failed to perfect a direct appeal, his conv iction became final on that date

. Apprendiwas decided on June26, 2000. Because the Apprendidecision was handed down before O'Meara's conviction b ecame final, O'Meara is entitled to benefit from the Apprendi rule, as we applied it in Grossman

. The state has conceded that if O' Meara is entitled to benefit from the Apprendi rule, his sentence was imposed in violation of Apprendi , and must therefore be reduced.

Id . at 340 (emphasis added). In light of its holding, the court

[r]eversed and remanded for imposition of the statutory maximum sentences of two consecutive 25-year terms under Minn. Stat. §§ 609.108, subd. 1, and 609.343, subd. 2, plus the conditional release term of 10 years mandated by Minn. Stat. § 609.109, subd. 7(a).

Id . at 341.

While O'Meara awaited resentencing, on June 24, 2004, the Supreme Court issued Blakely , holding that an upward departure from the maximum statutory sentence is unconstitutional under a guide line system unless a jury finds the underlying facts or the defendant admits such facts.

On August 11, 2004, the state trial court resentenced O'Meara. At the resentencing hearing, O'Meara argued that "under Blakely and Apprendi , the longest sentences he could receive were the 't op of the box' presumptive guidelines." State v. O'Meara , No. A-04-2140, 2005 WL 3527124, at *2 (Minn. Ct. App. Dec. 27, 2005) (unpublished) (" O'Meara III "). The state trial court re jected O'Meara's argument, concluding "that Blakelydid not apply to [O'Meara's] case because [O'Meara's] case had become final in August 2000, well before the decision in Blakely . Based on its earlier findings under the patterned sex offende r statute, the court sentenced [O'Meara] to two consecutive 25-year prison terms." Id

.5 As the magistrate judge pointed out in his report and recommendation to the district court, O'Meara waived a jury trial and agreed to stipulated facts. The State does not argue that O'Meara's waiver of a jury trial encompassed facts found at sentencing, and the Minnesota Court of Appeals's decision under review did not consider such argument. Therefore, we will not address it.
-6- O'Meara appealed to the Minnesota C ourt of Appeals, asserting that "his sentence is unconstitutional because a judge, not a jury, decided the facts supporting the upward durational departure based on the patterned sex offender statute. He argue[d] that his case was still pending, not yet final, and therefore, the holding in Blakelyapplies to his case." Id

. 5 The court rejected O'Mear a's argument, reasoning that O'Meara's "case became final on August 6, 2000, almost four years prior to Blakely ." Id . at *4. The court also rejected O'M eara's contention that "the holding in Blakelyis to be applied retroactively" based on a prior holding of the Minnesota Supreme Court. Id . (citing State v. Houston , 702 N.W.2d 268, 274 (Minn. 2005)). On March 14, 2006, the Minnesota Supreme Court denied review of the Minnesota Court of Appeals's decision.

On March 6, 2007, O'Meara petitioned for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that (1) his sentence was unconstitutional because it was premised on facts found by a judge and not by a jury; (2) he is entitled to the benefit of Blakelybecause his conviction was not final when Blakelywas decided; and (3) even if his sentence was final when Blakelywas decided, Blakelyannounced a watershed rule that should apply retroactively to his case.

The magistrate judge issued a report and recommendation in which he recommended that the district court deny O'Meara's petition and dismiss the action with prejudice. The magistrate judge determined that the Minnesota Court of Appeals committed no habeas error "in concluding that O'Meara's conviction was final in August 2000." As a result, the magistrate j udge found that the court's decision "cannot be contrary to clearly estab lished federal law" and that th e court's "application of the6 O'Meara acknowledges in his brief that he is not arguing that, even if his sentence was final when Blakelywas decided, Blakelyannounced a watershed rule that should apply retroactively to his case.
-7- Griffith line of cases, the closest releva nt precedent, was not objectively unreasonable." Furthermore, the magistrate judge concluded that the court reasonably applied Teague in holding that Blakelydid not retroactively apply to O'Meara's final judgment of conviction. The district court adopted the magistrate judge's report and recommendation.

Thereafter, we issued a certificate of appealability on the following question:

Whether the decision of the Minnesota Court of Appeals that the rule of Blakely v. Washington , 542 U.S. 296 (2004), did not apply to the determination of Mr. O'Meara's sent ence was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

II. Discussion O'Meara argues that the Minnesota Court of Appeals's decision that Blakelydid not apply to his sentence was contrary to established precedent of the Supreme Court. According to O'Meara, becau se he was awaiting resenten cing in 2004 when the Court decided Blakely , his conviction and sentence werenot "final," meaning that Blakely applies to him. 6 Additionally, O'Meara argues that his conviction was no longer "final" after the Minnesota Supreme Court's d ecision in May 2004 because his original sentence was no longer in existence.

In response, the State asserts that th e Minnesota Court of Appeals correctly applied Griffith —a decision of the Supreme Court—in determining that O'Meara's conviction became final before Blakelywas decided. According to the State, Griffith stated that a judgment of conviction becomes final upon the conclusion of direct-8- review and held that new rule s of federal criminal procedur e apply retroactively to all cases pending on direct review or are not yet final. As a result, the State concludes that because Blakelywas decided in 2004—long after O'Meara's direct-appeal period expired in August 2000— Blakelydoes not apply retroactively to O'Meara.

We must determine "whether the stat e supreme court acted contrary to or unreasonably applied clearly established fede ral law when it ruled against [O'Meara]." Losh v. Fabian , 592 F.3d 820, 823 (8th Cir. 2010) (c iting Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1)). We may grant O'Meara's habeas petition

on one of two grounds under the "contrary to" clause of § 2254(d)(1): "if the state court arrive[d] at a conc lusion opposite to that reached by [the Supreme] Court on a question of law" or if it "decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 412–13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). [His] petition could be granted under the "unreasonable application" clause only if the state court applied the correct governing lega l principle in an objectively unreasonably manner. Id . at 409, 413, 120 S. Ct. 1495. Only rulings in Supreme Court decisions issued before the state court acts are considered clearly established federal law, id . at 412, 120 S. Ct. 1495, for a state court does not act contrary to or unreasonably apply clearly established federal law if there is no controlli ng Supreme Court holding on the point, see Evenstad v. Carlson , 470 F.3d 777, 784 (8th Cir. 2006).

Id

.

In Blakely , the Supreme Court decided "that an upward departure from the maximum statutory sentence is unconstituti onal under a guideline system unless the underlying facts have been found by a ju ry or admitted by the defendant." Id . at 821–22 (citing Blakely , 542 U.S. at 296). The Court in Blakely "clarified that 'the [relevant] 'statutory maximum' . . . is the maximum sentence a judge may impose-9- solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'" Id . at 823 (quoting Blakely , 542 U.S. at 303). We have previously recognized that "[t]he constitutional rule of criminal procedure established in Blakely is only available to defendants whose criminal cases were not yet final at the time the decision was issued." Id . (citing United States v. Stoltz , 149 F. App'x. 567, 569 (8th Cir. 2005); United States v. Price , 400 F.3d 844, 849 (10th Cir. 2005); Schardt v. Payne , 414 F.3d 1025, 1038 (9th Cir. 2005); United States v. Phillips , 109 F. App'x 627, 628 (4th Cir. 2004); In re Dean , 375 F.3d 1287, 1290 (11th Cir. 2004)). According to this court, "[w]hen a Suprem e Court decision results in a 'new rule' of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are alr eady final, the rule applies only in limited circumstances." Id . (internal quotations and citations omitted).

In Losh , we determined that the Minnesota Supreme Court "correctly concluded that the retroactivity issue is govern ed by the Supreme Court decisions in Schriro v. Summerlin , 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and Griffith v. Kentucky , 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)." Id . In those precedents, the Court "clearly established that '[a] stat e conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied .'" Id . (quoting Caspari v. Bohlen , 510 U.S. 383, 391 (1994)) (emphasis added); see also Griffith , 479 U.S. at 321 n.6 ("By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhaus ted, and the time for a petition for certiorari elapsed or a petition for certiorari fi nally denied.") (emphasis added).-10- Losh controls. Here, the Minnesota Court of Appeals, relying on the Minnesota Supreme Court's decision in O'Meara II, concluded that

[O'Meara's] case was final before Blakelywas decided. In O'Meara [ II ], the Minnesota Supreme Court determined that [O'Mear a's] case became final on August 6, 2000, almost four years prior to Blakely . [679 N.W.2d at 340]. "[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari withthe Supreme Court has been filed and finally denied." Id . at 339. The court found that [O'Meara's] appeal period expired on August 6, 2000 becausehe failed to perfect a direct appeal. Id . at 340.

O'Meara III, 2005 WL 3527124, at *4. In turn, just as in Losh , the Minnesota Supreme Court in O'Meara II "reasonably applied" the precedent of Teague and Griffith in determining that O'Meara's conviction became final on August 6, 2000—the date his period of direct app eal expired. 592 F.3d at 823–24 (stating that "[t]he supreme court reasonably applied that precedent when it concluded that Losh's conviction and sentence had 'become final the date her period of di rect appeal expired' because she had failed to seek direct revi ew within the 90 day period prescribed by Minn. R. Crim. P. 28.02, subdiv. 4(3)").

As in Losh , the Minnesota Court of Appeals "concluded that [O'Meara] was not entitled to appeal [his] sentence on the basis of Blakelybecause the date on which [his] period of direct appeal expired and [his] conviction and sentence became final ([August 6, 2000]) preceded the date on which Blakelywas decided (June 24, 2004)." 592 F.3d at 824. We explained in Losh that "[t]he Supreme C ourt has yet to consider whether Blakelyapplies retroactively to cases that became final before it was decided" and that, as a result, where "no clearly established federal law therefore exists, § 2254(d)(1) affords no grounds for disturbing the supreme court's conclusion." Id

.-11- Additionally, we reject O'Meara's argum ent that his conviction was no longer "final" after the Minnesota Supreme Court' s decision in May 2004 because his original sentence was no longer in ex istence. The Minnesota C ourt of Appeals ruled that O'Meara's "case was final" on August 6, 2000, because O'Meara was not being resentenced under a different statute in 2004, but rather was just "having the same statutory sentence reduced." O'Meara III, 2005 WL 3527124, at *3. This was not an unreasonable application of clearly establis hed federal law because, as the district court, adopting the magistrate judge's report and recommendation, recognized, "no Supreme Court case directly addresses wh ether resentencing after collateral review renders a previously final conviction pe nding for the purpose of applying a new rule of federal constitutional criminal procedure." See also Losh , 592 F.3d at 825 ("Neither the Supreme Court nor any federal court of appeals has considered whether state law governs the characterization of a type of state appellate review for purposes of retroactivity analysis.").

Therefore, we hold that the Minneso ta Court of Appeals's decision that O'Meara's conviction became final before Blakelywas decided is not contrary to, or an unreasonable application of, federal law.

III. Conclusion Accordingly, we affirm the judgment of the district court.

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