Brandon Long v. Richard Coursey, 683 F. App'x 561

Brandon Long convicted in Oregon state court of attempted first-degree rape, two counts of attempted first-degree sodomy, and two counts of attempted first-degree sexual abuse.
On two counts the trial court imposed upward-departure sentences, citing multiple aggravating factors, including violations of court orders (failure to remain in sex-offender treatment and contact with his children).
Long filed a 28 U.S.C. § 2254 habeas petition arguing (1) the upward departures violated his Sixth Amendment jury-factfinding rights under Blakely v. Washington, and (2) trial counsel provided ineffective assistance by failing to advise him of his Blakely rights.
The district court denied habeas relief; Long appealed to the Ninth Circuit. The panel reviewed the denial de novo under AEDPA standards.
The panel assumed, for purposes of analysis, that any Blakely error and counsel deficiency occurred but held any Blakely error was harmless and that Long suffered no Strickland prejudice because the jury would have found the court-order violations beyond a reasonable doubt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether upward-departure sentencing violated Blakely jury-factfinding	Blakely rights were violated when judge imposed upward departures based on facts not found by jury	Any Blakely error was harmless because at least one aggravating factor (court-order violations) would have been found by the jury	Court: Any Blakely error was harmless; affirm denial of habeas
Whether counsel ineffective for not advising Blakely rights	Counsel failed to inform Long of Blakely rights, constituting deficient performance	Even if deficient, no Strickland prejudice because sentence would not have changed; jury would have found aggravating facts	Court: No prejudice; Strickland claim fails
Standard of review under AEDPA	Long sought relief; claims must show state decision contrary to or unreasonable application of clearly established federal law	Respondent invoked AEDPA; district court decision reviewed de novo but constrained by AEDPA standards	Court applied AEDPA; affirmed under harmless-error and Strickland principles
Harmless-error burden on habeas	Error requires reversal unless not substantially injurious to verdict	Harmless if no grave doubt jury would have found aggravating factors beyond reasonable doubt	Court: No grave doubt; error harmless

Blakely v. Washington, 542 U.S. 296 (holding judicial factfinding that increases a sentence beyond statutory maximum violates Sixth Amendment)
Strickland v. Washington, 466 U.S. 668 (establishing two-prong test for ineffective assistance of counsel)
Washington v. Recuenco, 548 U.S. 212 (Blakely errors are subject to harmless-error review)
Brecht v. Abrahamson, 507 U.S. 619 (harmless-error standard for habeas relief requires showing substantial and injurious effect)
Kotteakos v. United States, 328 U.S. 750 (formulation of prejudice standard for harmless-error review)
O'Neal v. McAninch, 513 U.S. 432 (clarifying "grave doubt" standard for harmless-error review)
United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. application that Blakely errors are subject to harmless error)
Butler v. Curry, 528 F.3d 624 (9th Cir. discussing "grave doubt" standard in habeas context)
Murray v. Schriro, 745 F.3d 984 (9th Cir. standard for reviewing district court denial of habeas petitions)