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Losh v. Fabian

January 4, 2010

STEPHANIE DAWN LOSH, PETITIONER -- APPELLANT,
v.
JOAN FABIAN, MINNESOTA COMMISSIONER OF CORRECTIONS, RESPONDENT -- APPELLEE.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Murphy, Circuit Judge.

Submitted: November 18, 2009

Before MURPHY, SMITH, and BENTON, Circuit Judges.

Stephanie Dawn Losh filed this petition for a writ of habeas corpus after the Minnesota Supreme Court affirmed the revocation of her probation and the execution of her stayed 120 month sentence for aiding and abetting kidnapping. Shortly after her probation had been revoked, the United States Supreme Court decided in Blakely v. Washington, 542 U.S. 296 (2004), that an upward departure from the maximum statutory sentence is unconstitutional under a guideline system unless the underlying facts have been found by a jury or admitted by the defendant. The district court*fn1 denied Losh's petition after concluding that the state supreme court did not act contrary to or unreasonably apply clearly established federal law when it rejected Losh's attempt to raise a Blakely challenge after the state's direct appeal period had expired . It granted her a certificate of appealability after Jimenez v. Quarterman, 129 S.Ct. 681 (2009), was decided. We affirm.

Losh was indicted for second degree felony murder for her role in the beating death of Brian Jenny, in violation of Minn. Stat. § 609.19, subdiv. 2(1). She pled guilty to aiding and abetting kidnapping involving unsafe release and great bodily harm, in violation of Minn. Stat. § 609.25, subdiv. 2(2). The court departed upward from the state sentencing guidelines presumptive 86 month sentence due to the victim's vulnerability and sentenced Losh to 120 months imprisonment. The court stayed execution of the sentence conditioned on Losh's successful completion of a forty year term of probation and one year imprisonment. On November 17, 2003 the 90 day appeal period expired, under Minn. R. Crim. P. 28.02, subdiv. 4(3), without Losh having filed an appeal.

On March 8, 2004 Losh was found to have violated the terms of her probation for ingesting a pill containing the narcotic hydrocodone. Her probation was revoked, and the stayed 120 month sentence was executed. Shortly thereafter, on June 24, 2004, the Supreme Court decided Blakely. On August 10, 2004 Losh sought to appeal her sentence and the revocation of her probation under State v. Fields, 416 N.W.2d 734 (Minn. 1987). In Fields, the state supreme court had allowed a defendant to challenge an upward departure on appeal from the denial of his motion at a revocation hearing to modify his sentence. The supreme court rejected Losh's attempt to use Fields to argue that her conviction was "on 'direct review' at the time Blakely was decided" because a Fields appeal does not qualify as direct review and therefore "Losh is not entitled to the retroactive application of Blakely on this appeal." State v. Losh, 721 N.W.2d 886, 895 & n.15 (Minn. 2006).

After Losh's petition for certiorari was denied by the Supreme Court, she filed this petition for a writ of habeas corpus. The district court denied the petition on the basis that the state supreme court had not acted contrary to or unreasonably applied clearly established federal law. After Jimenez v. Quarterman, 129 S.Ct. 681 (2009), was issued, however, it granted Losh a certificate of appealability on the following issue:

Did [Losh]'s judgment of conviction and sentence become final on direct review after the Supreme Court handed down its decision in Blakely v. Washington, so that the sentence imposed in [Losh]'s state criminal case is subject to the constitutional requirements prescribed by Blakely?

In a series of cases the Supreme Court has considered the potential conflict between sentencing guidelines and the Sixth Amendment rights of individuals being sentenced under them. See, e.g., United States v. Booker, 543 U.S. 220 (2005); Blakely, 542 U.S. 296; Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000). The Supreme Court decided that the Sixth Amendment "proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." Cunningham v. California, 549 U.S. 270, 274 (2007). Blakely itself clarified that "the [relevant] 'statutory maximum' . . . is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis omitted).

The constitutional rule of criminal procedure established in Blakely is only available to defendants whose criminal cases were not yet final at the time the decision was issued. United States v. Stoltz, 149 Fed. Appx. 567, 569 (8th Cir. 2005), cert. denied, 547 U.S. 1028 (2006); see also United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005); Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005); United States v. Phillips, 109 Fed. Appx. 627, 628 (4th Cir. 2004); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004). "When a Supreme Court decision results in a 'new rule' of criminal procedure, that rule applies to all criminal cases still pending on direct review, but, as to convictions that are already final, the rule applies only in limited circumstances." Never Misses a Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005) (citing Schriro v. Summerlin, 542 U.S. 348, 351 (U.S. 2004)).

The focus of our inquiry is whether the state supreme court acted contrary to or unreasonably applied clearly established federal law when it ruled against Losh. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1). Losh's habeas petition might be granted on one of two grounds under the "contrary to" clause of § 2254(d)(1): "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or if it "decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412--13 (2000). Her petition could be granted under the "unreasonable application" clause only if the state court applied the correct governing legal principle in an objectively unreasonably manner. Id. at 409, 413. Only rulings in Supreme Court decisions issued before the state court acts are considered clearly established federal law, id. at 412, for a state court does not act contrary to or unreasonably apply clearly established federal law if there is no controlling Supreme Court holding on the point, see Evenstad v. Carlson, 470 F.3d 777, 784 (8th Cir. 2006).

The state supreme court correctly concluded that the retroactivity issue is governed by the Supreme Court decisions in Schriro v. Summerlin, 542 U.S. 348 (2004), Teague v. Lane, 489 U.S. 288 (1989), and Griffith v. Kentucky, 479 U.S. 314 (1987). See Losh, 721 N.W.2d at 893. Those precedents clearly established that "[a] state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 391 (1994) (citing Griffith, 479 U.S. at 321 n.6). The supreme court reasonably applied that precedent when it concluded that Losh's conviction and sentence had "become final the date her period of direct appeal expired" because she had failed to seek direct review within the 90 day period prescribed by Minn. R. Crim. P. 28.02, subdiv. 4(3). See Losh, 721 N.W.2d at 894--95. Losh has not identified any decision in which the Supreme Court decided a case involving "materially indistinguishable facts" differently. Nor have we.

The supreme court concluded that Losh was not entitled to appeal her sentence on the basis of Blakely because the date on which her period of direct appeal expired and her conviction and sentence became final (November 17, 2003) preceded the date on which Blakely was decided (June 24, 2004). Id. at 894--95. The Supreme Court has yet to consider whether Blakely applies retroactively to cases that became final before it was decided. See Burton v. Stewart, 549 U.S. 147 (2007) (case accepted to consider retroactive effect of Blakely dismissed on procedural grounds). Because no clearly established federal law therefore exists, § 2254(d)(1) affords no grounds for disturbing the supreme court's conclusion. See Evenstad, 470 F.3d at 784. Our own court has reached a similar conclusion. See Stoltz, 149 Fed. Appx. at 569 (holding Blakely inapplicable to final cases that preceded its issuance).

Losh challenges the supreme court's conclusion, contending that her conviction and sentence had not become final when Blakely was decided because at that time she retained the ability to appeal the revocation of her probation under Fields. The supreme court rejected this very argument. It identified the clearly established federal law that bounds the inquiry: that is, whether "the availability of direct appeal ha[d] been exhausted" at the time Blakely was decided. Losh, 721 N.W.2d at 893 (citation omitted); see also Caspari, 510 U.S. at 391. It also noted that the Supreme Court has not yet had occasion "to classify state appellate review methods (other than direct appeal from judgment of conviction) as either 'direct review' or 'collateral review.'" Losh, 721 N.W.2d at 894 n.12. In the absence of federal guidance, the supreme court ...


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