Mark Smith v. Ernie Moore, 415 F. App'x 624

Petitioner Mark E. Smith robbed the Marion Community Credit Union on Oct 19, 2004, with three employees present and no customers, taking $9,480 from one teller.
He was arrested December 9, 2004 in Florida for the Marion, Ohio robbery.
Ohio charged him with one count aggravated robbery, three counts kidnapping, and firearm specifications; jury convicted him on one aggravated robbery and three kidnappings; firearm specs were acquitted.
The trial court sentenced to nine years for aggravated robbery and four years for each kidnapping, to be served concurrently with each other and consecutively to the nine years, totaling 13 years.
On direct appeal, appellate courts upheld the convictions; Ohio Supreme Court did not review the merits.
Petitioner later challenged his sentence in state post-conviction proceedings and then pursued federal habeas corpus under 28 U.S.C. § 2254 after exhausting state remedies; the district court denied relief, and the magistrate judge found Blakely-based Sixth Amendment error but the district court did not adopt that portion; a certificate of appealability was granted on the jury-trial issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the claim is procedurally barred and properly before the court	Smith argues the claim is not procedurally defaulted due to changes post-Foster.	Respondent asserts default under Maupin, later undermined by Foster/remedial changes.	Claim not procedurally defaulted; properly before court.
Whether the sentence violated the Sixth Amendment as articulated in Blakely	Smith asserts judge-found facts increased sentence beyond what the jury could authorize.	Ohio statute allowed minimum termini; no Blakely violation if judge findings were permitted post-Foster/Ice.	Sentence violated Blakely principles as applied; not harmless.
Whether the error was harmless under Fry v. Pliler	Violates Blakely so must be reversed unless harmless.	Error could be harmless due to broader sentencing framework.	Harmless error analysis inapplicable; not harmless; grant of relief affirmed.

Blakely v. Washington, 542 U.S. 296 (2004) (any fact increasing punishment beyond statutory maximum must be juried and proved beyond a reasonable doubt)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that raise penalty beyond statutory maximum must be proven to a jury)
United States v. Booker, 543 U.S. 220 (2005) (guidelines framework advisory post-Booker; severability of mandatory provisions)
Oregon v. Ice, 555 U.S. 160 (2009) (upheld judicial fact finding for consecutive versus concurrent sentences)
Foster, 845 N.E.2d 470 (Ohio 2006) (Ohio severed Blakely-offending portions of sentencing statute; remands for re-sentencing)
Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529 (6th Cir. 2010) (Blakely violation not harmless where sentencing framework remains flexible within statutory maximum)
Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986) (four-step procedural-default analysis for state grounds)
Williams v. Taylor, 529 U.S. 362 (2000) (law established by Supreme Court; application to state court)
Fry v. Pliler, 551 U.S. 112 (2007) (harmless error standard for habeas review)
Thompson v. Warden, 598 F.3d 281 (6th Cir. 2010) (discussed Maupin applicability to Blakely claim)