Jimmy Ray Valentine (04-2116) Kenneth Jerome Valentine (05-1877) v. United States

Supreme Court’s light in tenced COOK, Circuit and MARTIN Before: Jersey, 530 v. New in ruling Judge.* BUNNING, District Judges; 435 2348, L.Ed.2d 466, 120 S.Ct. argument rejected opinion (2000). court J., This COOK, delivered conviction, States D.J., United BUNNING, joined. his affirmed court, and which in (6th Cir. Valentine, Fed.Appx. 339-52), delivered MARTIN, (pp. v. J. 20, October on final part in concurring 2003), became which opinion separate part. in dissenting Ray moved Jimmy year, following The

OPINION 2255, alleging § 28 U.S.C. relief COOK, Judge. While Circuit counsel. assistance ineffective district pending motion his were Kenneth Valentine Ray and Jimmy for leave Ray moved court, Jimmy and dis- possess conspiring convicted argument include petition his amend cocaine. crack powder cocaine tribute Blake- decision intervening on based challenges to numerous raise They now 296, 124 S.Ct. 542 U.S. Washington, ly v. U.S.C. to 28 pursuant convictions their (2004). The district L.Ed.2d sever- Valentines, jointly § 2255. amend, conclud- leave him denied court based arguments a number ally, make defen- apply did Blakely ing Booker, 543 U.S. States on United district review. collateral (2005). dants L.Ed.2d ineffective-assistance his also denied articulated this court for reasons Largely a notice filed Ray then claims. v. United Humphress ap- a certificate applied appeal Peti- fail. Cir.2005), (6th claims these denied. the district pealability, of ineffective- a number make also tioners the Su- pending, application While lack of which claims, one all but assistance designation. sitting Kentucky, United Bunning, L. David *The Honorable District the Eastern Judge for District States preme Court announced its decision in be futile as Blakely was inapplicable on review, collateral a conclusion we review (2005), 160 L.Ed.2d 621 to which de novo. Parry v. Mohawk Motors of Jimmy Ray directed this Mich., court’s Inc., attention 236 F.3d Cir. pursuant to Fed. R.App. 28(j). 2000). P. The issue both cases is essential granted court then of appeala- ly certifícate the same: Kenneth is entitled to if relief bility on both his ar- ineffective-assistance Booker applicable to his case on collater guments and his Booker claim. review, al and Jimmy Ray is entitled to petition amend his to include a Booker B. Kenneth J. Valentine argument if applies Booker on collateral Kenneth was tried with his review. brother Were applicable Jim- to their my Ray and six cases, defendants, other and both was Valentines cognizable state convicted of conspiracy to possess claims entitling with them to resentenc- intent to distribute ing. cocaine base. Kenneth

was sentenced months, to 292 predicated B. Booker

on Is a the New district Rule court’s Criminal finding that at least Jimmy Ray 1.5 Procedure: kilograms of and cocaine Ken- base were in- neth volved in the offense. Kenneth appealed, asserting, alia, inter arguments on based Jimmy Ray and Kenneth both con Apprendi and ineffective assistance of tend that the district court erred counsel. This rejected court appeal his in Booker applies to their cases collateral 2003, Valentine, 70 Fed.Appx. 314, at review because Booker did not announce a his conviction final 26, became on January “new rule” of procedure. criminal Blakely 2004. Following the Supreme Court’s is- and Booker were applications mere Ap- suance of Kenneth filed a motion prendi, they argue, and not “new rules” pursuant to § 28 2255, U.S.C. which the purposes of collateral review of their district court denied. Kenneth then ap- convictions, which became final Ap- after pealed, and this court granted a certificate prendi. of appealability, allowing Kenneth to raise In instances, most defendants seeking ineffective-assistance and Booker collateral relief may rely on new rules claims. procedure criminal announced after their convictions have become final on di- II. ApprendilBlakely/Booker rect appeal. Summerlin, Schriro v. A. Procedural Issues 348, 352, U.S. 2519, S.Ct. 159 L.Ed.2d (2004). Although Jimmy Ray Lane, Teague Kenneth both rely on Booker challenge S.Ct. aspects L.Ed.2d 334 sentences, (1989), their their Supreme cases arrive in Court differ- announced a ent procedural postures. three-step analysis for determining merits of when a Kenneth’s new procedural Booker challenge rule will are properly apply retroactive- us, before ly but Jimmy Ray’s cases on case collateral arrives review. As the the procedural posture Supreme of a explained Court denied motion Beard v. Banks, for leave to amend. U.S. distinction is S.Ct. irrelevant, however, (2004) (internal 159 L.Ed.2d 494 because the district citations omitted): court based its ruling on legal conclu-

sion that Jimmy Ray’s proposed First, amend- the court must determine when ment to include a Blakely argument would the defendant’s conviction became final. deci on this court’s bearing no had prendí “legal ascertain

Second, it must Humphress. existed,” ask sion then as it landscape interpreted Constitution, as whether pointed court Second, Humphress existing, compels then precedent clear made in Booker dissents out decide must is, That rule. preordained was result Bookeds Fi- actually “new.” rule whether Booker, 543 (citing at id. Blakely. See new, must the court rule if nally, J., (Breyer, either falls within consider factual distinc (opining dissenting) nonretroactivity. exceptions two refusing basis” principled “offer tions explained further Beard Blakely and to extend analysis Teague step second Guidelines)). The Sentencing Federal ... rule [relevant] “whether asks dissent, as the Hum expressed views precedent— then-existing dictated indicative were explained, phress of [peti- is, the unlawfulness whether, that “newness”: rule’s the Booker all apparent conviction[s] tioners’] observed O’Connor Justice Although 413, 124 S.Ct. Id. jurists.” reasonable is almost scheme “Washington’s omitted). (internal citations re- departure upward identical became convictions Kenneth’s and Ray’s 3553(b) § 18 by U.S.C. established gime Blakely. prior to and Apprendi final after 5K2.0,” § in USSG implemented Book- addressed decision Humphress Our J., (O’Connor, at 2549 Blakely, that however, held retroactivity, ers a fore- means by no was dissenting), it retroactively to apply not does Booker Blakely in rule that the at conclusion gone F.3d 398 review. on collateral cases uncon- Guidelines Federal to distin- attempt rendered Valentines 860-63. in dissent Breyer’s stitutional, ground Justice however, case, their guish at Booker, 125 S.Ct. final proves. became conviction Booker Humphress’s that dissenting). J., convic- (Breyer, their whereas 802-03 prior be- but Apprendi, after final became tions 2.n. Id. at Booker.1 Blakely and fore noted also court Humphress Third, the key several ignores argument this But interpretations differing “the that decision. Humphress about facts States by United Blakely announced actually decid First, Humphress all that not also indicate Appeals Courts by Blake dictated not was Booker that ed Booker that jurists believed reasonable “new created Booker therefore ly, and at Id. Blakely.” compelled rule was by defen be raised not could that rule” out pointed Humphress final became convictions whose dants Koch, v. circuit, States in United January s Booker' prior any time banc), Cir.2004) (en (6th F.3d If at 860-62. F.3d 2005, issuance. Fifth Cir- “Second, Fourth joined Blakely, despite rule a new was Booker com- Blakely did holding cuits despite rule a new it was follows Sen- the Federal the conclusion pel Ap timing simply, Put Apprendi. [respon- is, whether, unlawfulness distinction, Valentines support of this 1. In reason- all apparent to conviction framing dent’s] Humphress court’s point to the ” at 860 F.3d Humphress, assay the jurists.’ therefore able “We must it: before issue Beard, ask [January 2000] (quoting landscape as legal ] [Booker 2504). later announced rule 'whether then-existing precedent— dictated teneing Guidelines violate the Sixth ings”); Lloyd v. States, United 407 F.3d Amendment.” 398 F.3d at 861 (citing 608, (3d Cir.2005) 612-14 (same); Guzman United States Mincey, v. (2d 380 F.3d 102 v. States, United (2d 404 F.3d Cir.2004), United States v. Hammond, 378 Cir.2005) (same); United Price, States (4th Cir.2004) (en F.3d 426 banc), and (10th F.3d 848-49 Cir.2005) (hold- United Pineiro, (5th 377 F.3d 464 ing that while Blakely interpreted Appren- Cir.2004)). The court went on to explain: it was not compelled by di Apprendi and Even those Circuits that have applied petitioner thus whose conviction became Blakely's rule to the Federal Guidelines final post-Apprendi but pre-Blakely could

have done so over dissents.... We are not raise Blakely claims on collateral re- mindful of the observation in Beard view); McReynolds v. “[b]eeause the focus of the inquiry is Cir.2005) (“Booker does jurists reasonable could differ not apply retroactively to criminal cases as to whether precedent compels the that became final before its release.... sought-for rule, dowe suggest that Blakely reserved decision about the status the mere existence a dissent suffices of the federal Sentencing Guidelines ... so to show that the rule Beard, is new.” represents itself the establishment 124 S.Ct. at 2513 n. 5. We confident, of a new rule about the system.”). federal however, not only that jurists who We find the views expressed by this authored those majority opinions and court Humphress and those presented are reasonable, dissents but that these by our sister circuits persuasive. We opinions and dissents make it manifest therefore cannot conclude that “the rule that the rule of Booker is new. later announced [Booker ] was dictated Humphress, 398 (citations at F.3d 861-62 precedent then-existing [such that] omitted). unlawfulness of [petitioners’] conviction To the extent that Humphress does not was apparent to all jurists.” reasonable strictly control this issue because of the Beard, 542 U.S. at 124 S.Ct. 2504 timing of Humphress’s conviction vis-á-vis (second emphasis added). We hold that Apprendi, its reasoning remains persua- petitioners whose convictions became final sive.2 Moreover, other courts of appeals prior to Booker may not rely on Booker’s have considered rejected the same rule on collateral review. arguments in cases involving similarly situ- ated petitioners whose convictions became C. Booker Is Procedural, Not Substan- final after See, Apprendi e.g., Never tive: Only Kenneth A Misses Shot v. States, United 413 F.3d (8th 782-83 Cir.2005) (petitioner Kenneth also contends that Apprendi whose conviction became final after Ap- and its progeny have “redefined the sub- prendi but before Booker could not raise stantive law regarding federal narcotics Booker claims because “the ‘new rule’ an- prosecutions.” Kenneth presumably nounced in Booker does not apply to crimi- makes nal convictions that became final before argument this because the Teague rule of nonretroactivity does apply the rule was announced, and thus does not new substantive rules. See Teague, 489 benefit movants in collateral proceed- U.S. at 109 S.Ct. 1060. As we noted Indeed, although Lang States, v. United here, Valentines it could be read to foreclose (6th F.3d Cir.2007), did not have this claim. occasion to address the issue argued by the Is- Equity to Booker of Application E. ques- however, “Without Humphress, Only Kenneth sues: one,” 398 procedural is a tion, rule Schriro, at U.S. (citing 860 n. F.3d Ken argument, Booker final In his argu- 2519), Kenneth’s 348, 124 S.Ct. equitable an to create the court neth asks fails. ment an raised who defendants to allow rale review direct on argument of Rule a “Watershed re Not collateral Is on argument D. Booker raise a Kenneth Procedure”: relief. such Criminal forecloses Teague view. Only of Counsel Assistance III. Ineffective a sec- nonretroactivity contains

Teague criminal of rules for new exception ond of Review A. Standard of rules “watershed procedure ruling court’s a district reviewing funda- implicating procedure criminal find reviews this court petition, § 2255 crimi- accuracy fairness mental and conclusions error fact clear ings Beard, proceeding.” nal States, v. United Paulino law de novo. rule, Court as the Cir.2003). (6th 1056, 1058 352 F.3d scope” out, “limited pointed Beard to a small apply clearly meant “is § 2255 those of U.S.C. observance The Intersection requiring B. rales

core Washington implicit and Strickland ... are procedures Moreover, liberty.” Id. ordered concept of process that the proves who prisoner A “because explained the Beard an tainted conviction leading to his so central rule would any qualifying is enti- magnitude” of constitutional “error innocence determination accurate Weinberger § 2255. relief tled to many such unlikely that is] guilt [that Cir. yet have process due basic components they were claim 2001). The Valentines surprise no come as should emerge, it counsel assistance effective denied rule find a new yet to we Amendment. Sixth guaranteed exception.” Teague second falls 759, 771 Richardson, 397 U.S. McMann Id. (1970). 1441, L.Ed.2d 14, 90 S.Ct. n. gov- therefore challenges here Their argues nevertheless Kenneth “performance” well-known erned rulings doubt “reasonable established standard “prejudice” rule watershed establish cases line of Washington, 466 Strickland retroactively under applied must (1984). To 2052, L.Ed.2d truth- impact on to its due Teague assis- constitutionally ineffective establish the Su- But a trial.” function finding show must counsel, petitioner tance rulings doubt reasonable Court’s preme fell representation (1) “counsel’s his are not Apprendi; core form reasonable- standard objective below have principles which strand separate 688, 104 Strickland, U.S. at ness,” of this purposes analyzed been (2) reasonable is a “there 2052, this S.Ct. Moreover, addressed issue. unpro- that, for counsel’s but probability holding that Humphress, issue proceed- errors, result fessional of criminal rule a watershed not create did Id. at different.” been ing would argu- at 863. procedure. well. ment fails

C. Alleged Trial Counsel’s Failure to said, that. He “I care, don’t I didn’t do Jimmy Ray’s

Communicate Desire they say what I did.” Accept a Plea According to government, this state- ment “establishes that government Background Factual never offered a ten-year plea agreement” Jimmy Ray claims that he learned to Jimmy Ray and that Jimmy Ray “was in February or March 1999 that the gov not kept in the dark on anything and ernment had offered him ten-year plea freely made own his go decision to arrangement, but his trial counsel advised trial.” government observes that him there was “no rush” to accept because Jimmy Ray maintained his innocence dur- he government believed the would make a ing his sentencing hearing, apparently im- better offer later in the proceedings. Ac plying that he would not have accepted cording Jimmy Ray, however, gov any plea, had one been Moreover, offered. ernment made no offers, additional and he government points out that Jimmy repeatedly his told trial counsel that he Ray had ten months in complain which to accept would like to government’s ten- about lawyer’s alleged dereliction, but year offer. Trial ignored counsel Jimmy he no made complaints during pretrial pro- Ray’s wishes, he alleges, and took the case trial, ceedings, at or at his sentencing in January 2000, trial where Jimmy Ray hearing. was convicted and sentenced to 292 Jimmy Ray disputes the government’s months. characterization of his counsel’s statements government disputes Jimmy Ray’s at the sentencing hearing and contends factual allegations, (1) contending that it that they illustrate his trial counsel’s dis- never Jimmy offered Ray a ten-year plea honesty. Jimmy Ray argues that his at- (2) agreement, that Jimmy Ray made torney’s statement “that his client would his own decisions about his trial. The have taken a deal ‘had the Government government points to a colloquy give chose[n] to him a crime that he felt he Ray’s sentencing hearing which defense was guilty of instead of something that he counsel made following representations ” wasn’t’ can be interpreted as an attempt to the district court: by his attorney to “conceal his failure to And he deal, would have taken a Your communicate Mr. acceptance Valentine’s Honor, he would have taken a deal in a ten-year plea offer.” Jimmy Ray also second had the Government chose to accuses government of dissembling in give him a crime that he felt he was its interpretation of his attorney’s state- guilty of instead of something he wasn’t. ment and his own statement at the sen- He adamantly maintained from day one, tencing hearing, which he maintains should “I did not do this. I am no leader. I interpreted be in the context of “disputing

did not move millions of dollars worth of the Government’s leadership charge,” crack I cocaine. don’t have millions of rather than general as claims of innocence. dollars. I don’t even have thousands of dollars. I Analysis didn’t do this.” That’s what he told me time again. and time Jimmy Ray highlighted his claim in his He is man, not a stupid but is § he not a motion, but the district court de- man, brilliant but he understands what I nied him an evidentiary hearing on the him, told go “You lose, to trial and it is matter. We only need determine whether life.” I told him that. He will you tell Jimmy Ray is entitled to an evidentiary government the First, although hearing. govern- resolve to hearing Jimmy Ray’s protestations that lawyer implies his that plea a him offered ment he that argument his discredit innocence accepting. from him essentially prevented circuit plea, this accept a willing to prevented was counsel trial Ray’s Jimmy If See past. in the reasoning this rejected assistance his plea, a accepting from him 733, 738 States, F.3d v. United and, because clearly ineffective Griffin Cir.2003) Carolina North Ray (6th (citing Jimmy offered agreement alleged plea 160, 27 25, 33, 91 S.Ct. (120 months Alford, time prison substantially less (“Griffin’s (1970)) repeated sentence), he L.Ed.2d 292-month his than rather prove, not satisfy do innocence to prejudice declarations sufficient show could not claims, he would that district government prong. second Strickland’s court claim, finding plea.”). This guilty a Ray’s accepted Jimmy have denied court “[protestations that presented explained has not has also “[defendant that a properly his trial are throughout supporting innocence evidence credible specific, however analysis, re- court court’s in the trial factor ground.”] [on claim themselves, sum- justify not, dis- abuse they do determination views an evidentia- without relief mary v. United denial Arredondo cretion. States, 348 Cir.1999). v. United (6th hearing.” Smith ry 778, 782 F.3d Cir.2003). (6th 545, 552 F.3d motion § 2255 reviewing a by the on authority relied Second, the arises, “the habeas dispute factual States, 323 court, v. United Moss district hearing to evidentiary an hold must Cir.2003), support (6th does F.3d 445 petitioner’s truth determine affidavit defendant’s that a its conclusion States, 183 v. United Turner claims.” evidence sufficient present could alone Cir.1999). bur “[T]he 474, 477 F.3d hearing. request for supporting his case a habeas petitioner in den its conclusion reached district Moss an evidentia- establishing an entitlement hearing three-day extensive only after is Id. More light.” relatively is hearing ry defen- surrounding evidence on the assertions however, mere than required, other ineffective-assistance dant’s be non (“[I]t would id. innocence. Id. at claims. petitioner conclude sensical pro simply burden government meet could Third, conclusions Nevertheless, innocence.”). state- claiming Ray’s counsel’s from draws un required hearing evidentiary unsup- hearing are sentencing “[a]n at his ment conclusively shows state- the record From the less record. by the ported Arre relief.” no had is entitled ... a deal petitioner taken ment, “he would (internal quotations dondo, at 782 him give chosen the Government hearing way, “no omitted). of,” another Stated guilty felt he he crime allegations petitioner’s if the “the required conclusion draws government true because accepted plea ten-year cannot offered never Government inherently record, But are contradicted the Defendant.” agreement rather incredible, Taking or conclusions flawed. reasoning is government’s (internal quota Id. fact.” value, proves statements at face the statement omitted). plea a offered tions never Ray was Jimmy that of,” guilty was felt he he “crime reasons, to a conclude, for several We at all. plea offered never he not that dis- burden, his Ray met cor- may be assertion The government’s to hold declining erred trict rect, but it does not follow from the collo- until Tuesday 8:30, morning at February quy quotes. it Furthermore, it is strange 15th, 2000. the government claims it never of- The court did not contact the defendants’ Jimmy Ray

fered a plea, but then relies on attorneys prior to delivering its message. ambiguous an by statement Jimmy Ray’s During the however, morning, the court prove counsel to this claim in brief, its gave defense counsel an opportunity to rather than affidavit from Jimmy Ray’s submit a note, substitute which he de- trial counsel its own trial attorneys who clined. Court was later reconvened litigated the matter. morning jury after the delivered a note the court indicating The that it defendant’s had burden to reached a show his verdict on defendant, all but right to a one hearing is and had significantly lower deliberated about his defendant burden to for six show he is entitled to hours. § Defense attorney Turner, objected Mitchell relief. See note, arguing “it Here, 477. poten- had the Jimmy Ray offers more than a tial creating a mere verdict before the innocence; assertion of ver- pres- he dict’s time.” The court ents a overruled the factual ob- narrative of the events that jection. The district court asked if neither contradicted the record nor note made jury feel “inherently rushed reaching incredible.” His claim may its verdicts, and prove jury false at the also answered evidentiary hearing, but The jury “No.” then it is impossible delivered its verdicts assess its veracity based with respect to all one, on this defendants but record alone. The purpose of the reconvened the following hearing, however, Tuesday to con- is to allow the court to tinue deliberations. make these factual determinations based on more than a defendant’s affidavit and Analysis the contrary representations of the gov- brief, In his Jimmy Ray frames this Therefore, ernment. we reverse the dis- scenario as a Sixth Amendment “denial of trict judgment court’s on this issue and claim, counsel” rather than an instance of remand for an evidentiary hearing on this ineffective assistance his trial counsel claim. (his § 2255 petition argued theories). both Because the gave its message to the Jury D. Communication/Denial jury after trying and failing gather Counsel: Jimmy Ray Only defendants’ lawyers, it is difficult for coun- Background Factual sel to be considered Thus, ineffective. if Jimmy Ray alleges Jimmy Ray he denied entitled to relief under this counsel during claim, stage critical of his trial. would be because he was denied counsel, relevant facts are as follows. because counsel was ineffec- jury began deliberating at tive. approximately 9:00 a.m. on Thursday, February 10, 2000. Jimmy Ray invokes the principle that The next morning, when the jury recon “denial of counsel during a critical stage of

vened to continue its deliberations, judicial proceeding mandates a presump court sent it the following message: prejudice.” tion of Roe v. Flores-Ortega, Dear jury, there is no time limit nor is 528 U.S. there any hurry your deliberations. L.Ed.2d (2000); see also United States However, I must plane catch a today Cranio, 25, 104 659 n. Therefore, 1:30. you if do not have a 2039, (1984). 80 L.Ed.2d 657 Stated anoth verdict by 12:00, I will discharge you er way, denial of counsel is considered a

335 improper an as counsel of his absence the defen- a entitles error,” which “structural of de- hours After several charge. Allen preju- showing without trial new to a dant jury told the liberations, judge trial the prong— second Strickland’s dice in several plane a catch had he “that error the because presumed prejudice delib- not finished if it had that and hours pre- itself process adversary “the makes recess over call a he would by then erating Cronic, 466 U.S. unreliable.” sumptively deliberations allow weekend the Ray must 104 at 26- at Id. following week.” the continue communica- court’s district the show posture procedural Although the “critical a constituted jury the with tion from McMurry differ issue at claims trial, recently defined the stage” conclusion Circuit’s case, Tenth the this criminal a step of “a as Supreme informative: arraignment, as an such proceeding, an in- not simply the ac- was for consequences The statement significant [holds] 695-96, The statement at Cone, all.... struction v. Bell cused.” (2002). had deliberated jury the 914 after made L.Ed.2d 152 Thursday and a certain on four hours about held has this court Because judge had Friday. The the three hours jury “re-instruction” instances courtroom into the jury the called instructions reading supplemental must see, We arrangements. e.g., lunch stages,” discuss “critical as jury qualify (6th explanation than an as no more 350 this Straub, F.3d view 349 v. Caver for for lunch Jones, F.3d the schedule 332 about Cir.2003); v. French the With the deliberations. Ray labels Cir.2003), Jimmy subsequent (6th necessary it was arrived given having weekend “instruction” note an district court’s bal- for the a reject jury schedule the give We counsel. presence of the outside next week. and the day this the in which ance of Cases characterization. this explanation to such an at a was entitled jury counsel denial found whatever nothing had It plans. its a invariably involve stage critical but of deliberations length to do with substantive jury about instructing The ex- schedule. needed was, again, a a dead- giving or offense of an elements as way be considered no can planation how about instructions further jury locked an instruction. Caver, F.3d at See, e.g., proceed. jury message when (counsel court’s was absent district n. 6 view the We Id. fitting elements within certain “on way, re-instructed same deliberated”); re-instruc- they had instruction jury after category of offense counsel. (judge gave presence French, at 430 F.3d demands tion instruction, la- jury deadlocked improvised could instruction a coercive though And coercive, hear- after of as stage,” complained ter “critical characterized im- third reached jury had ing consequences “significant holds 695-96, 122 passe). Cone, accused,” state- similar held we conveyed S.Ct. however, note case, v. United States coercive. cave- ments information, with scheduling Cir.1982); (6th 594, 597 F.2d Markey, hurry its delibera- need not jury F.3d v. United also Gibson see at all. “instruction” not an arguably tions— other Cir.2001), (6th overruled on 247, factually addressed Circuit Tenth Leachman, v. States by United grounds States in United situation similar Cir.2002); (6th Cir.1987), F.3d 377 (10th McMurry, 818 Cir.2003) Fed.Appx. Ratliff, state- challenged defendant where opinion). (unpublished jury made to the judge trial ment 33 evaluating

“In for coercive effect failing appeal a the district court’s deci- judge’s jury, statement government’s sion to allow the peremptory context, must consider statement challenge prospective juror, to a Carl assessing totality it under the of the cir- jury selection, Pratt. During defense Gibson, 271 F.3d cumstances.” at 258. In objected Batson, counsel explaining Markey, the defendant contended that the only two members of the panel were “ judge jury district ‘coerced’ the into “people color” and already that one was reaching a speedy [because verdict excused for cause. Defense counsel stat- commented,] judge at the conclusion of ed: “There person is one other and that’s trial, courthouse would be avail- say Mr. Pratt. I’d that he is a black man. (Christmas following morning able the sure, I don’t know certainly for but he Eve) jury if the was unable to reach a like a looks black man me. he And consensus afternoon.” 693 F.2d at been summarily excused the prosecu- Markey defendant’s coercion tion.” Ray’s: charge Jimmy mirrors The court’s message both cases the jury informed The district court requested then re- if it did not reach a verdict sponse from Assistant United States At- time, certain it would have to return to torney Delaney. Delaney responded Brian supposedly deliberate at a undesirable surprise, with apparently he because time, holiday in Markey days and several none of the people sitting thought with him Jimmy Ray’s later in case. The court in that Pratt a black “was man.” The court Markey judge’s found that “the trial stated, then non-discriminatory “Your rea- ‘likely give charge jury son challenging you for him is because did impression that it important was more not know that he was an ethic minori- [sic] ” quick thoughtful.’ than to be Id. ty; is that a Delaney fair statement?” Green, (quoting United States v. 523 F.2d responded, true, “That’s but we had rea- Cir.1975)). (2d Viewing this situation why sons we him that dismissed had noth- with Markey provides, the lens we are ing to do with Delaney race.” provided message confident the did not coerce the four reasons: verdict, jury reaching into its quickness its notwithstanding. This court has repeated- ^[1] He is years old and he shows ly jury’s held that speed reaching “the that he is retired. That kind con- verdict is petition for at 195-96 (citing United States v. Giacal- tion was coercive.” (6th Cir.1995). Therefore, one, United States v. F.2d irrelevant whether an instruc- relief on these Tines, Ratliff, grounds. 63 Fed.Appx. we Cir.1978)); deny makes injury he circumstances ting other concern was that cerns involved workmen’s me, me had, wonder about the someone he comp didn’t even community. who isn’t might if it instead awas have sur- get any, suspicious working ^[2] back get- An- leaving Usually peo- rounded his work. E. Appellate Ineffective Assistance of ple legitimately who injured get Ray Batson: Counsel/ loss, compensation rightfully, Kenneth not, and he did subject which makes me Background 1. Factual to think that perhaps there was some- Jimmy Ray thing missing and Kenneth claim there. He said he had appellate their counsel was ineffective resigned from his employment. Just wonder suspicious not to place right lived. feelings, kick could illegal to some notice corner ^[4] about in the that I did circumstances. people in his left he the the upper-hand do notice, had person. it, city off, an but males it’s from earring that we ear. it makes left ^[3] just I mean, that I tend He failed corner my have own it’s me he or to was pressed rid of pressed?” replied, “The Defense prosecutors articulate the earring this.” discriminatory reasons counsel “White discriminatory reason a challenged Defense rationale The court seems,” to which then people counsel for his attempted Pratt then wear asked, for a discrim- feeling for responded, earrings.” the court they ex- again getting “What that to reason: inatory a lot sometimes just because earrings, that them, say to it, but other than wear can’t express officers I law enforcement inadequate. is is expressed someone they’ve of whether an idea what just rid they got whyme somewhat explain That’s to or not. doesn’t It conservative I that no reason on the is only male Pratt. There Mr. That’s unusual. he is I think And earring. see, the fact an wearing other can that’s panel him. not, it rid of they why got or reason that’s good is a that black my belief. reasons. That’s one was as follows: concluded court correctly, The responded, court district reason, concerned, good a to be is have Mr. Pratt far “it doesn’t As that race non-discriminatory reason.” that his are a observations has to Court’s on opportu- anything put counsel an didn’t He defense gave unclear. He then was respond- was he say counsel card, Defense did he respond. nor nity to his Like compensation race. of some Delaney’s worker’s member not a ed to a to be black Mitchell, him out I believe by pointing reason Mr. I things. I look how that’s But man. did not why he this court Pratt told Mr. Mr. Lennon word accept the to He said comp. worker’s get bother DiBrito when and Mr. Delaney Mr. he year and died last wife had his And so. think did not me they tell working that and over getting is denied. motion that reason nothing un- is There all that. through is Delaney If Mr. that. defense about offered usual then The district it’s reason, I think that’s you “cross-examine telling opportunity counsel proba- it’s I realize office reason. clerk’s good not people from or examine reason, it’s but non-discriminatory defense give bly jury” this selected who why reason. investigate very good chance counsel on people only two black were there the ear- discussed also counsel Defense op- this declined counsel Defense panel. earring, I can’t he has fact ring: “[t]he back jury bringing Before portunity. government a reason that’s believe stated, “Mr. courtroom, into the De- people.” rid getting around goes to reconsid- chance give you Delaney, I’ll he continued, explaining counsel fense I’m black. he was I think on Pratt. er juries, my on people for black “looking ifBut objection. honor going to see around I look when especially black, he told having been now you, eight sitting behind black defendants eight you jury, on him back to invite want black to be ought lawyers. There white agree “I don’t responded, Delaney may.” believe I don’t juries on people I is black. he the assertion with chal- peremptory reason a valid this is Hon- that, Your mean, understand I don’t ex- they have I think juror. this lenging or, by saying now that he is I black. first consider whether a claim Batson mean, can only say.” I The court then appeal had a probability reasonable of suc- said, Applying cess. precedent court’s you

I’ll let aon little tip. record, I the facts When a Batson claim had question asked any about you little probability of success. black, he affirmatively. nodded He’s the Equal Protection Clause only person said, who did. I I don’t prohibits a prosecutor’s use of peremptory any

think you are African-American, challenges a racially discriminatory but I don’t know. clearly He indicated manner. Batson v. Kentucky, 79, U.S. he was an African-American. Clearly. 1712, (1986). S.Ct. 90 L.Ed.2d 69 In But you had to be looking see it. If assessing claims, Batson we employ you weren’t looking, you didn’t see it. three-step analysis: Batson, “Under a de Delaney responded, “I can only say for the fendant must first establish a prima facie record it, I didn’t see never even crossed case showing that prosecution exer mind, my Your Honor.” said, The court cised peremptory strikes on the basis of “Again, I’m inviting you to back, invite him race. If the defendant satisfies this re but I’m not requiring you to.” Delaney quirement, prosecution must articulate responded, still, “I would mean, I peremp- explanation race-neutral for the chal tory challenge I have non-discriminatory lenges. The trial court must then decide if purpose doing it and I’m going to stand the defendant has carried the burden of by that.” The court replied, I up- “And proving purposeful discrimination.” Unit held it. Bring jury back without Mr. ed Tucker, States v. 1135, 90 F.3d Pratt. Tell him he is excused.” (6th Cir.1996) Batson, (citing 476 U.S. at Analysis 96-98, 106 1712). S.Ct. Defendants raising claims of ineffective assistance In appellate assessing prosecutor’s counsel must meet artic reasons, Strickland’s ulated two-prong Supreme test. McFarland Court has Yukins, v. (6th provided, Cir.2004). 356 F.3d and the correctly district recog nized, the appellate context, that “[t]he the court second step must pro this first assess the strength cess does the claim demand ap- explanation pellate counsel failed is persuasive, to raise. “Counsel’s even plausible.... [T]he failure to raise an issue on issue appeal is the facial validity could prosecu only be ineffective assistance if explanation. there tor’s is a Unless discriminatory reasonable probability that intent inclusion of inherent in prosecutor’s expla issue would have changed nation, the result of reason offered will be deemed appeal.” Id. As the court in McFarland race neutral.” Elem, Purkett v. 514 U.S. explained, “[i]f there is a 767-68, reasonable proba- 131 L.Ed.2d bility that [the (1995). defendant] would have pre- Our review of the district vailed appeal had the raised, claim been court’s resolution of the ultimate issue— we can then consider whether the claim’s whether the defendant has established merit was so compelling that appellate purposeful discrimination —is limited: counsel’s failure to raise it amounted to “[b]ecause this determination largely turns ineffective assistance of appellate counsel.” on the evaluation of credibility, reviewing Id. at 700. In order to assess the effec- give courts the findings of the district tiveness of Jimmy Ray’s and Kenneth’s great deference.” United States v. appellate counsel, then, the court Harris, must (6th 192 F.3d Cir.1999) Bat- court’s 1712). Therefore, district 21, 106 98 n. Batson, (citing Given clear error.3 ruling finding son 1712). may reverse “We and Kenneth’s conclusion, Jimmy Ray’s error." clear we find only where fact effective-assistanee-of-appellate-counsel 337, 341 Hill, fail, they cannot show must also claims New Cir.1998) (citing Hernandez in- failed counsel appellate 1859, 114 their York, 500 U.S. prob- a reasonable that had added). an issue clude As (1991))(emphasis L.Ed.2d appeal. of the the result changing Purkett, ability of counseled Supreme Court McFarland, F.3d at 699. regard persuasion burden ultimate “the with, never rests motivation racial ing IV. Conclusion strike.” from, opponent shifts denial court’s the district affirm We 768, 115S.Ct. challenges Kenneth’s Ray’s and in this case the court district Although Booker, ineffective-as- and their based analy precise a more provided have could district claims, reverse the we but sistance no reveals clear issue, record sis Ray an denying court’s decision that was finding there court’s in the error trial his hearing on evidentiary articu The prosecutor discrimination. no ac- to opportunity him denied counsel con reasons, of which none several lated remand and bargain plea a cept impli discriminatory undertones tained issue. hearing on this for a court district considered court district The cations. de provided and reasons government’s JR., MARTIN, Circuit F. BOYCE to meet opportunity counsel fense dissenting in part and concurring in Judge, impli discriminatory showing by burden part. statements, but de Delaney’s in cation majori- reached result join the I and his burden not meet did counsel fense II.B. Part in conclusion for its except ty, “belief’ had a he that merely said instead of the application retroactive regarding dis were reasons government’s that in United decision Court’s Supreme not meet does This “belief’ criminatory. Booker, 543 U.S. per burden “ultimate counsel’s defense analy- (2005). majority’s L.Ed.2d motivation[, racial regarding suasion finds fairly, and issue this presents sis from, shifts with, and never rests which] so, I dis- Even precedent. in our support The dis Id. strike.” of the opponent be an I believe what sent underscore objection, ultimately denied court trict I that difference theoretical important and unclear was race Pratt’s stating that appli- retroactive Booker’s regarding have prose accept the word” “had he cation. Pratt’s unaware they were cutors written, continue and previously I for that him not strike thus did and race Jersey, v. New believe, words, judge the district other reason. L.Ed.2d 466, 120 S.Ct. U.S. credible, Delaney’s explanation found Supreme (2000), commanded “great given is of determination kind this Blakely v. decisions subsequent (cit Court’s Harris, F.3d at deference.” 296, 124 S.Ct. Washington, n. Batson, at 98 ing however, clear, that the is record black. why the district is unclear record 3. The ruling on its initial maintained like volun- district Delaney he would if then asked ruling. issue, given we review jury, back on tarily Pratt invite that Pratt was ultimately decided the court (2004), 159 L.Ed.2d 403 and Booker. result, See As a question by faced Koch, States v. 383 F.3d panel in Humphress not, here, as it is (6th Cir.2004) (en banc) (Martin, J., dis- whether Apprendi dictated the result (“The senting) of Blakely seeds Booker, were sown but rather whether the rule from in Apprendi[], in which the Supreme Booker was by precedent dictated Court held that ‘other than the fact of a predated Apprendi. agree I with the end prior conviction, any fact that increases result in Humphress reached I because the penalty for a beyond crime the pre- believe that Apprendi itself announced statutory scribed maximum must rule, be sub- new that petitioners whose con- mitted to a jury, proved beyond a victions predated this decision would be ”). reasonable doubt.’ The Supreme barred from obtaining relief under Ap- confirmed this belief Booker itself when prendi, Blakely, or Booker. To the extent stated, succinctly and unequivocally, that the Humphress panel discussed “we reaffirm holding our in Apprendi: whether Blakely or Apprendi dictated the (other Any conviction) fact prior result in however, analysis necessary to support a sentence dicta, as it unnecessary to reach the exceeding the maximum authorized by the conclusion precedent that no at the time facts plea established guilty or a the petitioner’s conviction became final jury verdict must be admitted (before the de- Apprendi) the result dictated fendant proved or to a jury beyond a Booker.1 See Central Virg. Cmty. College Booker, reasonable doubt.” 543 at Katz, U.S. v. 356, 546 U.S. 990, 244, 125 S.Ct. As I am 738. inclined to (2006) (“[W]e L.Ed.2d 945 are bound not think the Court meant said, what it I to follow our dicta in a prior case in which believe that neither Blakely nor Booker the point at now issue fully was not debat- rule, created new but merely applied ed.”) (citing Cohens v. Virginia, 6 Wheat. rule already laid down in Apprendi. The (1821) (“It U.S. L.Ed. is rule from Booker should therefore apply a maxim not to be disregarded, gener- that retroactively to petitioners, habeas like al expressions, in every opinion, are to be Valentines, whose convictions became final taken in connection with the case in which after the Court issued its decision in Ap- expressions those are they used. If go prendi. case, beyond the they may respected, ought but not to control the judgment in a I. subsequent suit when very point is outset,

At the I do not believe that presented this decision.”)). for The panel’s Court’s decision in Humphress v. United view Humphress well may be informa- 398 F.3d Cir.2005), con- with respect tive to the question of wheth- trols the result here. The conviction of er jurists reasonable believed Booker was the defendant in Humphress became final compelled by Blakely purposes of ex- Booker's, before the Supreme Court’s decision in amining retroactive application Apprendi, as majority acknowledges. Teague Lane, under suggest not to Humphress that the may have simple way been a reaching its opinion somehow or overreached was off- regarding conclusion ap- Booker's retroactive base analytical for the approach that it fol- plication pre-Apprendi to a Nev- conviction. If, panel believed, lowed. as clearly ertheless, portion this reasoning of its went Blakely Apprendi Booker, did not dictate beyond precise question presented to the then naturally it follows that no pre-Appren- panel, and does not bind us to it. follow precedent di dictated Booker either. This creat that indicates (1989). progeny, It ue’s 1060, 103 L.Ed.2d S.Ct. convic petitioners’ after a new rule ed prece- binding however, as a act not, does which and from final became tions we face issue on the Court this from dent Beard, U.S. See benefit. cannot now here.2 conven 413, 124 2504. Under S.Ct. “[ujnless within they fall Teague, Under members if all even approach, tional rule, con- new general to the exception to believe inclined were panel our will procedure of criminal rules stitutional the fact by Apprendi, dictated Booker was which those cases applicable not be be colleagues previously many of our are an- rules new before final become the rule render would otherwise lieved nounced.” our current be new, despite from Booker new, from Booker Thus, rule if the tome leads contrary. This liefs there by Apprendi, not dictated I am sure not ponder question could here petitioners that the doubt little or Supreme answered been part it, from not benefit to all rea “apparent Does the this Court: of their at the time landscape legal is relevant inquiry, jurists” sonable any now the side (leaving to convictions to determin progeny its Teague and exceptions). Teague discussion “newness,” apply with a rule’s ing 406, 413, 124 Banks, 542 U.S. Beard rule of strictly federal force same (2004). The L.Ed.2d in a habeas raised procedure, criminal number catalogues a effectively majority under 28 conviction to a federal challenge Humphress, like opinions judicial pro habeas it does § U.S.C. not dictate did concluded un convictions addressing state ceedings in dicta. holdings either § 2254?3 28 U.S.C. der to show relevant opinions These aof in the context itself Teague arose in the jurists believed all reasonable conviction, a state habeas review which, Teag- inevitability of have concluded Appeals Courts of Other majority why the me it clear Nor is petitions, 2255 applies to section Teague States, F.3d 474 v. United Lang suggests that any acknowledged difference not have Cir.2007), be read 348, (6th "could 353 petitions habeas analysis for between by the Valen- argued as the “issue foreclose" convictions versus federal seeking relief from majority Op. As the Maj. at 330. tines here.” state convictions. seeking from relief those way addressed Lang no in acknowledges, 1180, States, F.3d 254 v. Daniels United ap- Apprendi, by was dictated whether Cir.2001); v. Mar (10th States United 1194 Lang petitioner Cir.1998); did (4th in 412, Van because parently tinez, 416 F.3d 139 179, sug- majority's 183 21 F.3d argument. Daalwyk United raise this not States, 917 Cir.1994); controlling v. United Gilberti Lang somehow is gestion that 1990). Bren 92, (2d As Justice Cir. 95 law to be precedential decisional allow would Teague, in how dissent in his pointed out nan ever, losing party given issue where aon created do nothing to opinion had Court’s issue, simply because fails to raise 328, at 489 U.S. petitions. 2255 section with case would of his posture procedural or facts J., dissenting); see (Brennan, 109 S.Ct. it. raise him to theoretically allowed 534, F.Supp. Payne, 894 also argument failing raise the by Essentially, Teague does (D.Mass.1995) (ruling that grounds, case on other losing his cases.). I would in section apply not only the unli- waive not petitioner would Lang conclusion general issue with take case, close but would own in his tigated claim Teague is rele courts by other reached other, all behalf of habeas inquiry on retroactivity claim the door vant rather, prisoners; petitioners. This brought by federal habeas similarly situated petitions below, application least, I, that its I think at am discussed with which as legal principle this context. different somewhat be should unfamiliar. and did not address the appropriate retro- precedent existing at the time the defen activity analysis in habeas reviews of fed- dant’s conviction became final.” Teague, 288, eral 328, conviction. 489 U.S. 489 U.S. at (emphasis (Brennan, J., L.Ed.2d 334 in original). (“The dissenting) plurality does not ad- above, As discussed “dictated pri- question dress the the rule it precedent” inquiry typically turns on today announces extends to claims brought jurists, whether'reasonable prior cases by federal, state, as prisoners.”). well to the decision in which the “new rule” was The Teague majority justified its rule announced, would have deemed its out- against the application retroactive of new come to be ordained then-existing prec- rules of procedure criminal on two See, Beard, edent. e.g., 542 U.S. at (1) grounds: comity toward state court 124 S.Ct. 2504 (grounding the inquiry in adjudications, (2) finality of crimi- whether “the unlawfulness of [respon- nal judgments. Teague, 489 U.S. at dent’s] conviction was apparent to all rea- (“[W]e 109 S.Ct. 1060 have recognized that jurists”); sonable Humphress, 398 F.3d at comity interests of finality must also (same). This deferential approach be considered in determining the proper might good make sense scope in the review.”); Beard, habeas section context. Its focus on the divergent opin- S.Ct. 2504 (“Teague’s, nonre- ions of federal and troactivity state court principle judges acts as a rec- limitation on ognizes power of sometimes grant federal courts to reasonable minds ‘habe- can corpus differ ... over development relief prison- state of legal er[s].... This rules. should make such instances, clear that the where appli- Teague principle protects cation of an existing rule rea- to a somewhat judgments sonable of state nuanced debatable, courts but situation also the state the States’ in finality quite interest courts should apart not necessarily subject ”). from their Only courts.’ one of these Monday-morning quarterbacking every justifications finality of criminal judg- time are eventually —the proven wrong on ments —is relevant habeas cases seeking See, Beard, issue. e.g., relief from convictions in federal court. (“Teague’s nonretroactivity principle acts aas limitation on power

Teague’s finality concern with on its own of federal courts to grant likely ‘habeas supports corpus general rule of applying ”) to ... relief state prisoners].’ the case’s basic premise (quoting section to 2255 Caspari Bohlen, petitions. 383, 390, 510 That say is to U.S. 114 as a general 948, matter, (1994) 127 as with L.Ed.2d state 236 (empha- court prisoners, fed added)); eral sis prisoners at 423, should id. only 124 rely be able to S.Ct. 2504 (Souter, J., (“[T]he rules part dissenting) were of legal land function of scape at the time Teague’s their reasonable-jurist convictions became is standard to final, based on distinguish the value of repose, those developments and the in this importance of having some eventual Court’s jurisprudence end judges that state point in all litigation. Because should have anticipated concerns from those they with comity are reduced —if not could nonexis expected have been to foresee.” tent —in the 2255, context of added)); section (emphasis how McKellar, Butler v. ever, it would seem to me a 407, bit 494 more 108 scrutiny is warranted in determining (1990) (“The what L.Ed.2d 347 ‘new rule’ princi- legal landscape actually was, ple and therefore reasonable, validates good- given whether a rule was “dictated by faith interpretations of existing precedents all, are, members after We to new case. they a though even courts state made by the same established courts of inferior deci- later contrary to are shown and (unlike judges), court state sovereign added)). is concern This (emphasis sions.” wrong, says were we Court Supreme if the “[s]tate Teague: in recognized explicitly gladly and medicine our should take we frustrated understandably are courts retroactively, rather rule the correct apply existing consti- faithfully apply when of misapplications to vacated clinging than court a federal only have law tutional Supreme a Court prove law to proceeding, discover, during a [habeas] (which us conveniently allows is “new” rule commands.” new constitutional could that we ourselves Engle to convince (quoting Nor place). first wrong in the 33, 102 S.Ct. have been n. Isaac, 456 U.S. as a serve opinion (1982) (emphasis our difference can L.Ed.2d 783. invalidated prior, a now why for added)). proxy aas reason- be deferred should decision that the clearly reveal quotations These Constitution, application able refer- its and inquiry rule new standard context. in the section might jurists reasonable opinions ence approach fact, federalism with less deferential on concerns In based largely opin- divergent deference cases to demonstrates comity, and section in section interpretations jurists court of reasonable state ions reasonable ju- the standard the “reasonable parallel where would Even 2254 cases the law. are guidance Antiterrorism by the we look to whom codified rists” review (“AEDPA”). can serve Penalty Act opinions their judges, Death federal Effective 2254(d)(1) court imposes state similar for whether section proxy Specifically, long as state ha- So of review was reasonable. standard very deferential decision Court case Supreme convic- applying challenging state are courts cases beas justi- faith, is diminished there where good tions, allowing reversal law in to, quasi-sover- contrary their burdening “was fication decision state of, retroac- machinery with the application judicial eign unreasonable involved cases law, rules in of new as deter- application tive Federal clearly established the United become final. Court Supreme mined counter- no provision States.” however, case, where a section of review a standard providing part irrelevant, there comity federalism generally cases, they are section divergent to defer less need much v. United Moss de novo. reviewed who, hindsight, judges federal views Cir.2003).4 445, 454 States, F.3d precedent existing correctly apply did not (6th Cir. by which our to the standard refers 4. Moss § must (“A brought 2001) motion court's a district reviews Appeals stan as a threshold three bases allege one of petition, rather a section disposition of magni (1) of constitutional error an prior, dard: the court reviews district the how stat the tude; (2) imposed outside a sentence criminal underlying in the proceedings direct limits; that (3) fact or law error of utory in court the district fact that But the case. entire the render as to was so fundamental usually the same filed is petition is the claims, Further, invalid.”). some case, proceeding and originally the handled that of assistance ineffective for those as such counsel, any errors correct opportunity to has the in the first heard in can made, any of showing sort without may have under relief for habeas petition in a stance deci earlier its own to deference awkward 2255, Aguwa, 123 see United section defer with sion, concern less even indicates Cir.1997), providing addi- 418, Weinberger v. instance. the in first ence The different standard of review used in the now-vacated opinions of ju- reasonable petitions habeas challenging state court rists, I would focus primarily on the convictions versus that in used petitions straightforward question of whether the challenging federal convictions supports, at new decision “simply applie[s] a well-estab- least a similar analogy, context-based lished principle constitutional govern in in difference the manner which Teague case closely which is analogous to those applies to determine rule’s newness. which have previously been considered in prior the case Penry law.” v. Lynaugh, say

This is all to there would be 302, 314, good reason to conclude that in section (1989) L.Ed.2d 256 (quoting cases, Mackey v. divergent past opinions of “rea- jurists sonable” should not be enough (1971) (Harlan, J„

demonstrate L.Ed.2d 404 that a rule is new.5 This approach concurring part would not in undermine and dissenting part)). the central in premise Teague’s general rule To against the extent there is a need to articulate ” retroactivity. Rather than hanging onto what my “íederü-Teague or “Teague- support tional for petition the view of Corpus such 22A.6, Practice § and Procedure part adjudication as ongoing (Michie the aof feder- Supp.1993), 272-74 and Rules Gov- case, al criminal separate, rather than some erning Section Proceedings in the Unit- proceeding, isolated Courts, conclusions of which ed States District Advisory Commit- are entitled (1976 to some sort of deference. (2255 tee Adoption) Note motion "is a step further in the movant’s criminal case and judge questioned Another who Teague s action”)). separate not a civil applicability in federal sug- habeas cases has gested comity concerns both and final- might This view seem somewhat novel ity cases, are in diminished section 2255 among judges, federal but I would note that light extent, large of the fact that to a at least one commentator has made similar original continuation federal criminal pertaining observations "Teague-light" proceeding, purely separate rather than a and petitions: federal habeas distinct lawsuit: Court, To this [U]nlike motions filed difference under the nature of state habe- statute, proceedings under governed by sections 2254 which are and 2255 precludes application Teague 2255 motions are federal filed federal district prisoners, present at least in the originally circum- court that imposed the sentence. stances: Consequently, great Teague fear in In contrast retroactivity "civil” and upset "collateral” would federal-state rela- remedy section prisoners, for state interfering tions finality with the of state remedy section 2255 pris- judgments federal unduly and burdening markings oners bears the integral of an systems state court rehearings with is sim- part of a proceeding continuous criminal ply present with 2255 motions. As re- segmented by that is no event cently or condi- acknowledged finality. tion decisive of This characteris- justification Teague ban tic of proceedings section 2255 creates hinged on the Teague fact that involved possibility, ignored by most courts petitioners, [citing state habeas Beard ... ] commentators faced the Blakely the wake of howev- issue, Teague er, does apply in sec- lower federal courts and commentators tion proceedings.... seem oblivious to the difference between legislative history of sup- section 2255 challenges state federal habeas ports the view part that 2255 why actions are might each differently fare proceedings criminal and that the principles con- Teague. viction or Eichenseer, sentence is not "final” Comment, until dis- J. Nicholas Reasonable position petition. of the habeas Doubt in the Rear-View The Mirror: Case for Payne, 894 F.Supp. (quoting at 543 Blakely-Booker James S. Retroactivity in the Federal Hertz, Randy Liebman & Federal System, Habeas (2005). 2005 Wis. L.Rev. “the warning that Supreme Court’s of the be, language would standard light” is that decision its says a court that fact precisely. it encapsulate Penry would from of an earlier compass’ ‘logical the within by it is decision, ‘controlled’ indeed or II. pur- decision, conclusive is not prior a ques- the me to brings discussion current de- deciding whether the of poses a new rule. created tion of Teague.” But- rule’ under is a ‘new cision argument be little mind, can there my 1212. Even ler, at U.S. “simply than nothing more did that Booker new rule be- a not so, create Booker did constitutional well-established a appl[y] ground.” new “break not it did cause gov- to Apprendi ] from rule [the principle S.Ct. 1060. at 489 U.S. Teague, closely analogous.” is case which a ern of principle creating new some Instead of princi- constitutional well-established law of the law, making an extension or prior aof the fact than “[o]ther ple is it sim- holding, by prior a “controlled” pen- the increases conviction, fact that any had it principles legal same applied the ply prescribed the beyond for a crime alty a Blakely to and Apprendi articulated to be submitted must statutory maximum important “More sentencing scheme: new a reasonable beyond proved jury, a holding in in our used language than Apprendi, doubt.” sought we principles are Apprendi ques- analogous closely 2348. S.Ct. principles unques- Those vindicate. Booker, was, in the presented tion the Guidelines.” tionably applicable Appren- words, our “whether own Court’s U.S. at sentencing applies of cases di line added). Revolutionary as the (emphasis 229, 125 S.Ct. guidelines.”6 seemed, the may have holding in Booker Appren- actually occurred upheaval true of Sixth resuscitation through its di the Court opinion Stevens’s Justice right. jury trial Amendment opinion of portion in Booker—the (but not constitutionality the Hum- majority today’s addressed Unlike of application mandatory remedy) Court, of am unconvinced I phress ex- “in Blakely were Sentencing Guidelines—made in Booker Federal dissents ” applica- ‘newness.’ straightforward rule’s a it the Booker that was plicit dicative Guide- in the Sentencing engage prac I not Although tend Apprendi tion apparent is a new justices, counting creation lines, than the rather tice Ap- in these holding opinions of the a review our from “we reaffirm rule: be dispute (other con- prior Apprendi a than Any fact cases prendi: the fundamental a support justices over viction) necessary to tween than whether rather author- premise maximum exceeding the sentence constitu Booker’s foreordained not it by plea or established facts ized is based observation holding. This be admitted tional must jury verdict or guilty the individual the identities only on jury be- proved defendant by the principles legal dissenters, but 244, 125 Id. at doubt.” yond a reasonable eases. three in each upon added). relied I am mindful (emphasis 5.Ct. sentencing judge’s based Guidelines somewhat the issue explained 6. The (other prior of a fact question determination conviction) quoting the first thoroughly by more jury or found that was Amendment the Sixth presented: ''[w]hether U.S. at by the defendant.” admitted an enhanced imposition of is violated Sentencing n. the United sentence See, e.g., Apprendi, 543-544, 530 U.S. at considerations, concerning consequences, (O’Connor, J., 120 S.Ct. 2348 dissenting) concerning history, concerning institutional (“The principle reliance, actual underlying the leave I me where in Appren- di, Court’s ... apply i.e., decision would convinced that the Court is to Jersey’s, schemes like New wrong.”); Booker, under which 327, 330, 125 543 U.S. at a factual determination exposes J., (“The S.Ct. (Breyer, defen dissenting) beyond dant to a prescribed Justice, sentence Chief O’Connor, Justice Justice maximum, statutory Kennedy, but also all and I to have previously deter explained length minate-sentencing why schemes we cannot accept which the the Court’s length of a constitutional analysis.... defendant’s sentence upshot within the is statutory range Court’s specific turns Sixth factual Amendment deci Apprendi, determinations (e.g., Blakely, federal today’s— and Sentenc sions— deprive ing Guidelines).”); Congress 565, id. at legislatures state S.Ct. (“As authority J., that is (Breyer, theirs.”); dissenting) constitutionally Justice see also id. at out, points (Stevens, O’Connor majority’s rule J., (“In dissenting in part) reality, creates uncertainty serious the [re about con majority’s medial] concerns ... are stitutionality such noth statutes and about ing more objection an constitutionality to of the confinement of itself.”). punished those them.”); Blakely, 323, 324-25,

542 U.S. at 124 S.Ct. 2531 course, Of Supreme justices Court (“It (O’Connor, J., dissenting) is no answer the luxury of being able to vote to over say today’s opinion impacts only turn the prior Court’s precedent, unlike Washington’s others, scheme and not such the rest of us who must fall in line once the as, for example, the Sentencing Federal magic number of five votes is cast. There Guidelines.... The fact that the Federal is no reason for us to surprised Sentencing Guidelines promulgated by Apprendi dissenters’ opposition continued agency administrative nominally located to the rule case, from that justi which is in the Judicial Branch irrelevant is by fied both viewpoints their and their majority’s reasoning. The Guidelines have jobs. A candid look at the differences of law, the force of ... Congress opinion between the Justices in these three reject unfettered control to or accept any me, eases does not suggest however, particular guideline. The structure anything more than an ongoing dispute Federal not, Guidelines likewise does over premise Apprendi. underlying the Government half-heartedly suggests, Therefore, I cannot read their divergent provide any grounds distinction.”); id. viewpoints regarding Apprendi suggest (Breyer, J., S.Ct. 2531 dissent it did not command the result (“Taken ing) together these three sets of Booker.7 many There are areas of the law where penalty always death Eighth violates the particular Supreme justices See, have con- Fourteenth e.g., Amendments. Walton v. argue tinued against legal Arizona, a certain 674-75, rule 497 U.S. even after it precedential established (1990) (Brennan, J., 111 L.Ed.2d 511 authority. example, anAs years J., fourteen joins, ("I with whom Marshall dissenting) after the Gregg Court declared Georgia, my also adhere to view penalty that the death 153, 169, 49 L.Ed.2d all circumstances a cruel and unusual (1976) punishment that “the punishment.”) death (citing Gregg,428 U.S. at 230- invariably Constitution,” does not (Brennan, violate J., 96 S.Ct. 2971 dissenting)). Justices fact, Brennan and Marshall adhered Lexis-Nexis search for "Dissent dissenting their opinions Gregg (Brennan) from that the (Marshall) and Dissent

347 with any judgment re to make impossible at dissenters said fact, Apprendi the In applic their constitutionality of gard it re that would decision of the the time 21, 497 n. 120 S.Ct. at Guidelines, ation.9 530 U.S. as quoted of the reversal quire later, the dissenters’ years Five 2848. Further, Booker constitu the like above. correct, remarkably in a held, proved Ap- prediction eventually the majority tional Apprendi of straightforward application any dis clear made dissenters prendi I therefore be Sentencing Guidelines. the structure or on the based tinctions applied a well- “simply (administrative lieve that Booker versus authority source gov principle constitutional established guidelines federal of the legislative) analogous to closely a case which ern part, their For meaningful one.8 anot previously consid which have been Blakely those Apprendi in majority opinions 492 Penry, law.” prior in the case ered guidelines federal only stated 314, 109 S.Ct. Court, at 2934.10 rendering it U.S. in of the front were Blakely 1976, guidelines since yields 1440 cases penalty” death that Booker support determination of their appear to contain majority which vast See, McReynolds e.g., v. "[ajdhering to our a new rule. phrase created recited oft 479, States, 481 Cir. all penalty is in circum- 397 United death views mind, pro- 2005). punishment statements about my these cruel and unusual stances nothing to do Eighth reserving judgment and Fourteenth Amend- have with hibited See, Muncy, 497 Boggs v. e.g., a fundamental inquiry. It is ments....” the newness 2, 1043, 818 L.Ed.2d 111 judicial process 111 S.Ct. that courts principle U.S. may arguments time, (1990). their placed as Well case at see consider one can been, uphill 314, 323, be an battle it would Kentucky, have U.S. 107 479 v. Griffith S.Ct. by these resistance point 708, (1987), to this entrenched and the L.Ed.2d 93 649 diminishing the justices as two esteemed past to reach Supreme Court’s refusal Gregg, indi- or as significance of precedential little to do with to it has presented case subsequent cating death sentences that the opinion in case dictates the one less controlled litigants were somehow subsequent case. The Seventh result in a jurisprudence. prior penalty death Court’s McReynolds’swould es- reasoning in Circuit's Carhart, - U.S. -, every Supreme v. Court de- sentially See also Gonzales mean (2007) 1610, rule,” 480 L.Ed.2d except in S.Ct. 167 a “new 127 cision announces J., Scalia, J., concurring) (Thomas, joined by grants cer- unlikely where the scenario my (“I separately to reiterate view write presenting issue a case to hear tiorari including jurisprudence, abortion the Court's already decided and it has to one identical v.] Pa. Parenthood Southeastern [Planned fashion. in an identical it then decides 2791, 112 S.Ct. Casey U.S. [505 Wade, (1992)] and Roe L.Ed.2d my dissent is that 10.Although the focus 35 L.Ed.2d U.S. retroactively to convic- apply should Constitution.”). (1973), has no basis Apprendi because final after became tions that rule, strong argu- a new did not create accepted had that the United It seems Booker fits into made that can ment also least Apprendi, or at reality well after pro- Teague’sgeneral exceptions to one of argued in Su- Blakely was by the time application of new the retroactive hibition n. Blakely, U.S. Court. See preme Johnson, Note, Justice David E. rules. ("The Retroactivity En- Blakely Analyzing All: curiae, for the lower years federal courts two mind, to bear in what the meant Court after it was decided. Although my view holding when “reaffirmed” its Ap- from Booker’s constitutional holding resulted prendi why and to what straightforward from a application Ap- of extent, purposes of retroactivity, Book- prendi, anyone predicted who could have applied er holding from Apprendi. remedial holding case’s would have Booker’s remedial resolution to the Consti- been steps several proverbial ahead of the tutional problems by mandatory created jurist, reasonable if not a bona fide for- application of the Federal Sentencing tune-teller.11 151, 157, decision, leading up L.Ed.2d ments to the Booker (1997)). The Apprendi, from command Blake- implemented how he requirements has of ly, necessary and Booker that support facts Apprendi, Blakely, and in his Booker court. beyond a sentence the maximum Kandirakis, authorized United States v. F.Supp.2d by a conviction "must be (D.Mass.2006). admitted Judge Young anticipated proved jury defendant or beyond to a a rea- problems the Constitutional with the Federal doubt," sonable clearly would appear Guidelines, Sentencing ruled them un- implicating amount to a rule fundamental prior Supreme constitutional to the Court's accuracy. fairness and Blakely. (citing decision Id. United States Supreme Green, The partially rejected Court has F.Supp.2d (D.Mass.2004)). argument, result, holding assignment decision, prior of the aAs to the Booker he factfinding jury, role to a judge, rather than implemented a sentencing a scheme that he re- necessarily does not accuracy increase the "Blakely-izing” ferred to as the Guidelines Summerlin, a proceeding. criminal Schriro v. requiring government prove jury 348, 356, 542 U.S. beyond a any sentencing reasonable doubt (2004) ("[F]or L.Ed.2d 442 every argument seek, enhancements that it process would why juries factfinders, are more accurate explained he preferred "reflected the why they accurate.”). there is another are less remedy dissenting of the Justices in Remedial holding rule, that Booker was a new 318-19, our Booker." Id. at S.Ct. 2934. Humphress opinion Circuit's relied on Schri- notes, Although, Judge Young "[t]he con- ro’s jury conclusion does not necessari- sequences Apprendi for the Federal Sen- ly make more accurate factual determinations tencing immediately appar- Guidelines were Schriro, however, judge. than a did ana- ent,” id. at opinion S.Ct. lyze separate requirement but related makes clear that consequences primari- these Apprendi necessary that facts to the sentence ly played out in Booker s Constitutional hold- beyond must be found a reasonable doubt. ing. opinion, As Booker's remedial Johnson, 66 Ohio St. LJ. at Hum- Judge Young learning described of with the phress did not account for the increased stan- anecdote, following humorous he was left proof dard of required by Apprendi. Raising puzzled: rather proof the standard of pre-Booker from the I well remember the advent of Booker. We preponderance Appren- evidence to the trying clerks, jury were case. The law beyond di-mandated a reasonable doubt must my recognizing continuing interest in these clearly profound have a effect accuracy on the matters, e-mailed the my decision to court- 915-22; sentencing procedures. Id. at see clerk, deputy Smith, room Elizabeth in the 358, 363, Winship, also In re began courtroom. She printing out the de- (1970) ("The 25 L.Ed.2d 368 rea- printer The cision. courtroom is notorious- sonable-doubt prime standard ... is a instru- ly As the page slow. first came out of the ment for reducing the risk of rest- convictions printer, slapped she on a "Post-It” note ing error.”). on factual and, grinning, passed upit to me. On the particularly In a thorough opinion, United smiley note was a little face and the words Judge District William Young of the Page by page, "You’ll love this!” Justice District of Massachusetts has set forth an in- majority opinion passed up Stevens's sightful develop- historical account of the fully me until it was assembled. (“[T]he Reme- [in dissenting part) from holding remedial that the fact effectively eliminated how- Booker] dial entirely predictable, sought right significance constitutional very ever, not diminish does vindicate.”). of the positions peti- Constitu- dictated-by-prior-precedent illustrates, of sen- how- invalidation case holding. The the instant tioners in tional mandatory appli- under the imposed ever, sentenced how a defendant tences justify enough to guidelines advisory guidelines regime cation post-Booker own, aside analysis sentence, on its retroactivity a shorter to serve stands still remedy that predictability from the retroac- Booker's question of rendering the viola- the Constitutional to fix chosen something more than application tive Further, remedy preferred the while tion. academic exercise. purely remedial from Booker’s dissenters under was sentenced petitioner Each a more have had holding appear would mandatory Guidelines pre-Booker the length of on the actual effect significant therefore, each, the maxi- For scheme. car- holding still sentences, remedial the es- by the facts sentence authorized mum regarding both implications profound ries by was set jury the verdict by tablished methods and the of sentences length the Sentencing required by the range opinion’s The they imposed. by which See, v. States e.g., United Guidelines.13 mathematically re- might holding remedial (6th Cir.2006); 612, Blood, 630 435 F.3d the duration between disparity duce Oliver, sentence an unconstitutional Cir.2005) (“Given sen- the federal (6th ac- of an mandatory guidelines mandatory at were tencing guidelines treats sentence post-Booker ceptable Oliver, it court sentenced Booker, the district time advisory.12 See guidelines of Booker that light now (Stevens, J., clear seems suited, paint an even starker the statistics humming. printer kept The hypothe- might have an observer picture than pages in passing the stopped Smith Ms. of rea- Essentially, presumption sized. turned out herself what to scan for order vitiate both functioned has sonableness or four three After Remedial Booker. pres- by placing non-subtle holdings of Booker out, applied another printed she pages had within- courts institute crestfallen, on district up. sure and, passed them “Post-It” avoid reversal. so as to guidelines sentence read, there be can “How second note of Defense York for New Counsel Brief See opinions in the same majority different two Curiae, v. United Rita Lawyers as Amicus How indeed? case?” 18, 2006) (sur- (U.S. Dec. No. 06-5754 Id. at regarding sentenc- decisions veying appellate 1,152 concluding that of appeals profound ing statistical require also does not It by de- appealed within-guidelines sentences presumption that the analysis to understand reversed, fendants, while 60 of only were within-guide- afforded of reasonableness by appealed below-guidelines sentences Appeals, in- by the Courts sentence lines reversed, only yet been government have ours, any diminish cluding tended appealed above-guidelines sentences length be- meaningful sentence difference reversed). been by defendants have the manda- sentences under pre-Booker tween post-Booker sentences. guidelines and tory they had Berman, through analysis would be different Reasoning Rea- 13. Douglas A. post-Booker, adviso- sonableness, under the Part sentenced Yale L.J. Pocket been statutory regime, as maxi- (“Post-Booker ry doc- circuit Guidelines (July/Aug.2006) crime sentence encourage the sort mum practices trines convicted, range, Guidelines rote, the Guidelines were reliance on mechanistic ceiling. United States See would set opinion found merits Stevens's Justice Cir.2006). Duckro, 466 F.3d con- When constitutionally problematic.”). imposed sentence violated the sentences, Sixth shorter because were we to re- Amendment.”); Davis, United States v. mand for resentencing under remedial (6th Cir.2005). 397 F.3d the district It is certainly could give a sentence undisputed that the 292 month within the guideline sentences same range facts, based on judge-found petitioners both so predi- long received were guidelines as the range applied cated on in an judge the district finding, based advisory case, fashion. In Jimmy Ray’s preponderance evidence, on a however, the district court would not be kilograms 1.5 of crack cocaine could be impose able to a sentence over 240 months attributed to each. drug amount cal- hypothetical resentencing, as that is culation made judge by a prepon- the statutory maximum for his offense. derance of the evidence resulted each Duckro, (“[I]n 466 F.3d at 443 cases petitioner going from one extreme of the -Booker, where sentencing post occurred Guidelines based on the Drug Quantity with the sentencing guidelines applying Table of section 2D1.1 to the other ex- fashion, an advisory the maximum say treme —that is to they each received sentence authorized the facts estab- highest possible base offense level lished through guilty plea is the ‘maxi- based on a quantity of drugs alone of 38. mum prescribed sentence by applicable Jimmy Ray Valentine also received a two- ”). statutory provision.’ That say is to that point offense level enhancement based on Jimmy Ray would stand to have more than the district judge’s determination that he four years reduced from his sentence un- played an aggravated leadership role in der Booker and Apprendi. Although Ken- the drug conspiracy, resulting in a total neth’s sentence would not be similarly lim- offense level of 40. ited, prior drug conviction raises the Based on jury alone, verdict statutory maximum thirty years, finding included no of an amount drugs, of also, district court course, could have of highest possible base offense level was chosen to sentence guidelines below the (c). 12. See § U.S.S.G. 2D1.1 At this range of 292 months —a possibility realistic level, Jimmy Ray would have received a in light of its selection of very bottom (for 10-16 month sentence his criminal his- of the then-mandatory guidelines range. tory I), category of and Kenneth would upshot of complicated effect of the (for have received a 15-21 month sentence guidelines is that both petitioners would III). his criminal history category of In- gain much to from a remand for stead, in contrast, stark they both received resentencing Booker, they would sentences of 292 months.14 equates stand get sentences that were both to a twenty-four year, four month sentence shorter and Constitutional. only Not did for each—the difference of time each will their sentences violate but spend in prison based on facts that were violated the principle of Apprendi that any by jury found beyond a reasonable fact “necessary support a sentence ex- doubt twenty-two is over and a half years. ceeding the maximum by authorized This is not suggest petition- facts by established a plea guilty of or a ers have some claim to these specific jury verdict must be admitted the de- judge's 14. The finding Jimmy Ray had an equivalent tional of Kenneth's offense level of aggravating conspiracy role in the and the 38 with history a criminal of III. Each calcu- resulting point gave two enhancement him an guideline range lation led to a of 292-365 months, offense level of 40 with a history criminal judge gave and the district both the I, category of which amounted to the func- minimum sentence allowed. very back- represent beyond a strictures jury to a proved or fendant sys- legal and of our Constitutional bone doubt.” reasonable See, Apprendi, 530 U.S. at e.g., tem. any importance greater perhaps Of (“ spirit guard against ‘To lengths of sen- in the disparities numerical of part on the tyranny and oppression but however, concrete tences, is the less rulers,’ bulwark of great [our] and ‘as criminal imposing value profound more liberties,’ jury trial political civil vital, ensuring after sentences ‘the require has been understood guarantees Constitutional centuries-old accusation, pre- every truth of met: have been indictment, shape informa- ferred dis- post-Booker overlooked “What be con- tion, afterwards appeal, should that, for seventeen fact is the cussions suffrage unanimous firmed had been sentenc- federal courts years, equals defendant’s] [the twelve of (quot- unconstitutionally.” ing offenders ....’”) Story, 2 J. (quoting neighbours Berman, Re- Douglas Professor ing the Constitution on Commentaries Letter Law Black Harvard marks at 1873) ed. 540-541 United States 2006)). seven- For (Apr. Association Laws Blackstone, on the Commentaries W. sen- been courts had years federal teen (1769)). its Apprendi and England unconstitutionally. tencing offenders recognize offspring Blakely Booker — — cost is The human Think about that. critical, mandated check constitutionally Americans incalculable—thousands through the process, sentencing under sentences prison languish sentencing determinations grounding institu- are unconstitutional. today jury to the proved been facts have enormous—for equally costs tional Our modern doubt. beyond a reasonable jury was American years the seventeen to rec- reluctant judiciary has been federal deroga- disregarded disparaged limitation,15 this Sixth Amendment ognize function; gen- of its constitutional tion of the manda- primacy probably due lost judges has trial of federal eration that has been sentencing guidelines tory an inde- values of of certain core track sentencing approach our ingrained in judiciary because pendent Although this is years. for seventeen system sentencing in a up brought been anyone way for and natural innate proof,” “burden the words strips included, person- our think, judges federal mean- “evidence,” genuine “facts” of clearly years over seventeen experience al fair and vulnerability of our ing; and the fundamental must take backseat system to trial impartial federal Bill of the centuries-old guarantees of our branches political from attack the Supreme the benefit Rights, with as never exposed has been government these values reinvigoration Court’s history. in our before progeny its through Apprendi Stated Kandirakis, F.Supp.2d 283. (i.e.Booker). line of Apprendi differently, somewhat long the much how more cases means IV. jail—to a defendant can send government be a Booker do not believe Because I we, a about how volumes speaks straightfor- to be a rather rule but new to follow are able society, democratic Guidelines.”). Koch, ("[W]e See, invalidate the at 438 e.g., 15. Blakely require us to does conclude Apprendi, application ward federal ha- petitioners

beas whose convictions became

final should be after able to ben- reason,

efit from Booker. For this I re-

spectfully dissent from the majority opin- respect

ion with to Part II. B.

THOROUGHBRED SOFTWARE

INTERNATIONAL, INC.,

Plaintiff-Appellant, CORPORATION,

DICE Clifford V.

Dice, Wager, Fred and John Does

1-10, Defendants-Appellees.

No. 06-2080.

United States Appeals, Court of

Sixth Circuit.

Argued: April

Decided and Filed: June notes urges to affirm. It us amicus Sentences, Pre-Blakely suring Just Sentences sentencing Washington's between differences (2005). Specifi- LJ. 908-22 St. Ohio Sentencing Guide- regime and the Federal deemed "water- cally, rule is where new whether those differences questions but lines implicating procedure of criminal rule[ ] shed significant.”). constitutionally accuracy of the fairness the fundamental apply can retro- it still out, proceeding,” criminal federal majority points other As the Beard, actively. Supreme Court's pointed to the courts Netherland, 521 U.S. (quoting O’Dell constitutionality judgment” on the "reserving III. Guidelines was delivered in a complicated opinion that continues cause confusion of, easy sight It is to lose but essential

Case Details

Case Name: Jimmy Ray Valentine (04-2116) Kenneth Jerome Valentine (05-1877) v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 14, 2007

Citation: 488 F.3d 325

Docket Number: 04-2116, 05-1877

Court Abbreviation: 6th Cir.