Mark Allen v. Tony Parker
542 F. App'x 435
6th Cir.2013Background
- Allen was convicted in 2003 by a jury of child rape, especially aggravated exploitation of a minor, and exhibition of materials harmful to a minor, and was sentenced to 24 years with three statutory enhancements increasing the presumptive term.
- The enhancements were leadership in a crime with multiple actors, commission to gratify pleasure or excitement, and abuse of a position of private trust; these enhancements allowed judicial discretion to exceed the presumptive sentence under Tennessee’s hybrid regime.
- On direct appeal, Allen challenged the sentence as violating the Sixth Amendment jury-trial right because enhancements were based on findings by the judge, not by a jury.
- Cunningham v. California (2007) later held such hybrid schemes unconstitutional; but for his habeas petition, Allen could rely on Blakely v. Washington (2004) as the controlling law at the time of his state court decision.
- The district court and this court address whether the state may waive a meritorious § 2254(d) claim and whether the Blakely error was harmless under AEDPA; ultimately, the court deems the waiver permissible and the error harmless, denying relief.
- The court also discusses whether § 2254(d) is jurisdictional and concludes it is nonjurisdictional, yet mandatory, and that the state’s waiver of the merits of a § 2254(d) claim is valid under controlling precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the state's waiver of the § 2254(d) merits permissible? | Allen | Tennessee may waive nonjurisdictional § 2254(d) issues | Yes; waiver permissible; relief not granted on merits. |
| Was the Blakely error harmless under AEDPA? | Allen | Record supports enhancements; error harmless | No grave doubt of harsh impact; harmless; relief denied. |
| What is the governing AEDPA standard at the time of the state court decision? | Allen | Cunningham governs now | Backward-looking; apply law as of the state court decision; Cunningham not applied retroactively to habeas purposes. |
| Are the three enhancements supported by uncontroverted evidence? | Allen | Record supports all enhancements | Yes; record shows substantial evidence for each enhancement; harmless error. |
Key Cases Cited
- Cunningham v. California, 549 U.S. 270 (2007) ( Sixth Amendment applies to sentencing Schemes with extra factual findings.)
- Blakely v. Washington, 542 U.S. 296 (2004) (Imposed sentence based on judge-found facts violates Sixth Amendment.)
- Gonzales v. Thaler, 132 S. Ct. 641 (2012) (AEDPA § 2253/2254 procedural implications; jurisdictional analysis.)
- Greene v. Fisher, 132 S. Ct. 38 (2011) (Backwards-looking review under § 2254(d).)
- Pinholster, 131 S. Ct. 1399 (2011) (Limitations on evidentiary review in habeas petitions.)
- Neder v. United States, 527 U.S. 1 (1999) (Harmless-error standard for jury instructions.)
- Recuenco, 548 U.S. 212 (2006) (Treating sentencing factors as jury-triable facts for harmless review.)
- Hazelwood, 398 F.3d 792 (2005) (Harmless-error standard post-Booker era in AEDPA review.)
- Villagarcia v. Warden, 599 F.3d 529 (2010) (Pre-Foster Ohio-like sentencing framework; harmless-relief analysis.)
- Moore v. Mitchell, 708 F.3d 760 (2013) (Discussion of whether § 2254(d) is jurisdictional; waiver considerations.)
- Lovins v. Parker, 712 F.3d 283 (2013) (Harmless error and forfeiture considerations post‑Cunningham.)