Mark Allen v. Tony Parker , 542 F. App'x 435 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0804n.06
No. 11-5843
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MARK ALLEN, ) Sep 03, 2013
) DEBORAH S. HUNT, Clerk
Petitioner-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Middle
TONY PARKER, Warden, ) District of Tennessee
)
Respondent-Appellee. )
Before: BOGGS, MOORE, and SUTTON, Circuit Judges.
BOGGS, Circuit Judge. In 2003, a jury convicted Mark Allen of child rape, especially
aggravated exploitation of a minor, and exhibition of materials harmful to a minor. During his
sentencing hearing, the state trial judge found a number of statutory enhancements applicable to
Allen’s case, and sentenced him to 24 years in prison four years above his presumptive sentence
according to the state sentencing guidelines. Allen seeks a writ of habeas corpus, claiming that this
sentencing scheme violated his Sixth Amendment right to a jury trial.
Under the law as it stands today, Allen is clearly right: the Supreme Court held in
Cunningham v. California, 549 U.S. 270 (2007), that hybrid sentencing schemes, such as the former
Tennessee regime, violate a defendant’s right to present every element that may increase his
maximum sentence to a jury for a factual finding. Unfortunately for Allen, the Court issued
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Cunningham several months after his sentence became final. For the purposes of his federal habeas
corpus petition, he could only rely upon Blakely v. Washington, 542 U.S. 296 (2004).
In our review of this case, we noticed that neither party briefed the issue of whether Allen
could establish entitlement to habeas relief without Cunningham. Accordingly, we directed the clerk
to ask the parties to prepare for oral arguments on this issue. Notwithstanding this, the state
maintained the position it took in the district court and conceded constitutional error during oral
arguments.
Under normal circumstances, such a concession is not of moment we rule against the party
on the conceded point and move on. However, when the point conceded is the merits of a federal
habeas claim under 28 U.S.C. § 2254(d), the court is faced with a serious dilemma. Concession of
an unmeritorious § 2254(d) claim creates the very real possibility of granting a writ where it is
otherwise not warranted. In light of the very narrow jurisdiction given to federal courts to entertain
and grant habeas applications, we are forced to ask whether or not we may accept the state’s
concession on this point.
We conclude that we may. The merits of a § 2254(d) claim are neither jurisdictional nor
unwaivable, and the state may therefore abandon them as it sees fit. However, the putative Blakely
violation created by its concession is harmless. For the reasons that follow, we affirm the district
court and deny Allen’s petition for habeas relief.
I
The following facts are taken from the 2006 opinion of the Tennessee Court of Criminal
Appeals in Allen v. State, No. M2005-00601-CCA-R3-PC, 2006 WL 618297, at *1 2 (Tenn. Crim.
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App. March 13, 2006). Beginning in late 2001, the victim, D.M., began spending time with Allen
and his wife. The victim’s mother, a co-worker of the petitioner, hoped that Allen would be a good
male influence for her son. The victim visited the Allens at their home periodically through the
spring of 2002. That July, D.M. told his mother that the Allens had engaged in sexual activity with
him. After contacting police, the victim’s mother recorded a conversation between D.M. and the
petitioner, during which Allen made a number of incriminating statements. Police subsequently
went to the Allens’ home and obtained consent to search the premises. They found a pornographic
video that the victim claimed Allen showed him, as well as sexual paraphernalia that D.M. had
described to the police.
Both Allen and his wife waived their Miranda rights and gave written and oral statements
to the police. Allen admitted to showing the victim pornographic videos and magazines, to speaking
with the victim about sex, and to engaging in mutual masturbation and oral sex with the victim.
Allen’s wife confessed to having oral and vaginal sex with the victim while her husband watched.
She also stated that Allen videotaped some of his sexual contact with the victim and that she later
watched it before destroying the tape. A Tennessee grand jury indicted both Allen and his wife in
September 2002. Allen was charged with one count each of exhibition of materials harmful to a
minor, especially aggravated sexual exploitation, and rape of a child.
Allen was tried jointly with his wife in October 2003 and found guilty on all counts. In
November, the trial judge sentenced the petitioner to a total of 24 years in prison. Allen’s sentences
for the exhibition and sexual-exploitation counts were ordered to run concurrent to a 24-year
sentence for the child-rape conviction. Under the Tennessee sentencing regime in place at the time,
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Allen’s presumptive sentence for the child-rape conviction was 20 years. However, the trial judge
found three statutory enhancements applicable to Allen’s case: leadership of the criminal activity,
commission of an offense to gratify a desire for pleasure or excitement, and abuse of a position of
private trust. Under Tennessee’s hybrid sentencing regime, the finding of these statutory
enhancements vested the judge with discretion to impose a term above the presumptive sentence.
Initially, Allen did not take direct appeal of his conviction or sentence. He filed a pro se
application for a delayed appeal in November 2004. The trial court granted his application in
January 2005. On appeal, Allen argued, inter alia, that the trial court violated his Sixth Amendment
jury-trial right by enhancing his sentence beyond the presumptive 20-year term for child rape based
upon factual findings not made by the jury. See Blakely, 542 U.S. at 303 04. The Tennessee Court
of Criminal Appeals affirmed his conviction in March 2006. Allen, 2006 WL 618297, at *11. Citing
the Tennessee Supreme Court’s then-recent decision in State v. Gomez [Gomez I], 163 S.W.3d 632,
661 (Tenn. 2005), the Court of Criminal Appeals observed that Tennessee’s sentencing scheme
survived Blakely because, notwithstanding the necessity of an initial finding of the applicability of
a statutory enhancement, the decision to increase a defendant’s sentence beyond the presumptive
term was left solely within the discretion of the trial judge. Id. at *10. The Tennessee Supreme
Court denied Allen’s application for permission to appeal in August 2006. He did not petition for
a writ of certiorari from the United States Supreme Court, and thus his sentence became final in
November 2006.
In that same month, Allen filed a petition for post-conviction relief in state court, raising
claims of ineffective assistance of trial and appellate counsel. These ineffective-assistance claims
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addressed issues unrelated to the enhancement of his sentence. Both the trial and intermediate
appellate courts denied his petition. The Tennessee Supreme Court again denied permission to
appeal.
In February 2010, Allen filed a pro se petition for habeas corpus relief in the United States
District Court for the Middle District of Tennessee. He alleged insufficiency of the evidence,
ineffective assistance of counsel, and impermissible enhancement of his sentence under Blakely. The
district court dismissed all issues except the alleged Blakely violation and referred the matter to a
magistrate judge for an evidentiary hearing. In its briefing before the magistrate judge, the state for
the first time conceded that Allen’s sentence resulted in a decision contrary to Blakely.
Notwithstanding the concession, the magistrate judge recommended denying the petition, finding
that the state court’s error was harmless because of overwhelming evidence in the record to support
a jury finding on all three of the improper enhancements. The district court adopted the magistrate
judge’s recommendations in full, but granted a certificate of appealability to this court.
II
During the pendency of Allen’s delayed direct appeal, the United States Supreme Court
granted a writ of certiorari in Cunningham v. California, 546 U.S. 1169 (2006). The petitioner in
Cunningham challenged California’s determinate-sentencing law, a hybrid scheme that, similar to
Tennessee’s, prescribed a presumptive sentence within the statutory range of punishment, but gave
judges discretion to vary based upon findings of enhancing or mitigating factors. In his petition for
certiorari, Cunningham highlighted a split among ten states as to whether such schemes were
prohibited by Blakely. Seven states answered this question in the affirmative, holding that Blakely
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established a bright-line rule that prohibited judges from increasing a defendant’s sentence, based
upon their own fact-finding, beyond the maximum authorized by the jury’s verdict or the defendant’s
admissions. A minority of states, including Tennessee, read Blakely to establish a standard by which
judicial fact-finding would be permissible in sentencing so long as it was conducted within a scheme
with broad discretion.
In January 2007, the Court held that sentencing schemes such as Tennessee’s violated the
Sixth Amendment jury-trial right. The Court explained that “[i]f the jury’s verdict alone does not
authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term,
the Sixth Amendment requirement is not satisfied.” Cunningham, 549 U.S. at 290. The following
month, the Court summarily vacated Gomez I in light of its decision in Cunningham.1 Gomez v.
Tennessee, 549 U.S. 1190 (2007). On remand, the Tennessee Supreme Court found the state’s
sentencing scheme unconstitutional as applied to a defendant who, like Allen, had his sentence
enhanced after findings of fact by the trial judge. State v. Gomez [Gomez II], 239 S.W.3d 733,
740 41 (Tenn. 2007).
As the law stands today, it is beyond dispute that Allen’s 2003 sentence violated the Sixth
Amendment. However, the current state of the law is not the standard by which we assess a habeas
petition. The “backward-looking language” of § 2254(d) “requires an examination of the state-court
decision at the time it was made.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). This
1
Unlike Allen, the defendant in Gomez petitioned for a writ of certiorari in the Supreme
Court. Petition for a Writ of Certiorari, Gomez v. Tennessee, 549 U.S. 1190 (2007) (No. 05-296),
2005 WL 2148318. To be sure, it seems quite possible that the Court would have summarily vacated
the decision in Allen’s case had he filed a petition with the Court.
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principle extends not only to the state of the factual record, see ibid., but also to the state of the law.
As the Court explained in Greene v. Fisher, 132 S. Ct. 38, 44 (2011), § 2254(d)(1) requires federal
courts to assess what the state court knew and did, and to measure the reasonableness of its
adjudication “‘against this Court’s precedents as of the time the state court renders its decision.’”
Ibid. (quoting Pinholster, 131 S. Ct. at 1399) (internal quotation marks omitted). Accordingly, we
may not disturb a state-court adjudication based upon a subsequent opinion of the Supreme Court
that invalidates the state court’s otherwise-reasonable legal analysis.
III
In its brief before the magistrate judge, the state conceded that Allen’s sentence violated
Blakely and was contrary to clearly established federal law. It is unclear from this alone whether the
state conceded a Blakely violation as understood pre- or post-Cunningham. Indeed, the state’s brief
did not even cite the 2007 case. Were the state’s admission rooted in a post-Cunningham
understanding of Blakely, we might be able to disregard it as an attempt to waive the strictures of
Greene. Cf. Moore v. Mitchell, 708 F.3d 760, 784 (6th Cir. 2013) (holding that the state may not
waive the evidentiary restrictions of Pinholster). However, the state clarified during oral argument
that it conceded error solely under Blakely.
As elucidated in the previous section, this concession is wrong as a matter of law. However,
the state, as master of its own case, may waive nonjurisdictional issues. Day v. McDonough, 547
U.S. 198, 205 (2006). The courts of appeal are bound to respect such a waiver if, as here, it is done
deliberately. Wood v. Milyard, 132 S. Ct. 1826, 1830 (2012).
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In a recent published opinion, a panel of this circuit suggested that § 2254(d) may be
jurisdictional. Moore, 708 F.3d at 781 (“The Supreme Court has given plenty of indication that the
restrictions of AEDPA are strong and binding on federal courts. These restrictions have all the
hallmarks of a jurisdictional limitation on the power of the federal courts themselves.”); see also
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (“Section 2254(d) is part of the basic structure of
federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting
constitutional challenges to state convictions.”). The panel in Moore ultimately decided the case
without squarely resolving this issue. We, however, must face the issue now. In order to determine
whether or not the state may waive a meritorious, case-dispositive argument under § 2254(d), we
must first decide whether or not § 2254(d) is jurisdictional.
A
In Gonzales v. Thaler, 132 S. Ct. 641 (2012), the Court addressed the jurisdictional nature
of AEDPA with regards to § 2253(c). Section 2253(c)(1) provides that “an appeal may not be taken
to the court of appeals” from “the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court” unless “a circuit justice or judge issues
a certificate of appealability.” A certificate of appealability may issue only if the petitioner has made
a “substantial showing of the denial of a constitutional right,” § 2253(c)(2), and the certificate “shall
indicate which specific issue” satisfies that showing, § 2253(c)(3). The respondent in Gonzales
asserted that § 2253(c)(3), as a requisite of the jurisdictionally necessary certificate, operated as a
bar on appellate consideration of all issues omitted from the certificate.
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The Court rejected this argument. While § 2253(c)(1) is, by its plain text, a jurisdictional
provision, the Court held that neither paragraph (c)(2) nor (c)(3) contained language manifesting a
similar jurisdictional limit on the scope of AEDPA. Central to this holding was the clear-statement
rule: “A rule is jurisdictional if the Legislature clearly states that a threshold limitation on a statute’s
scope shall count as jurisdictional. But if Congress does not rank a statutory limitation on coverage
as jurisdictional, courts should treat the restriction as nonjurisdictional.” Gonzales, 132 S. Ct. at 648
(citations and internal quotation marks omitted). This principle carried particular force in the context
of AEDPA, where it is clear the Congress knew how to, and in fact used, jurisdictional language.
See id. at 649 (“‘[W]here Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally.’”
(alteration in original) (citing Russello v. United States, 464 U.S. 16, 23 (1983)).
The Court’s treatment of § 2253(c) is instructive. We look specifically to § 2253(c)(2),
which the Court concluded, and the respondent conceded, is nonjurisdictional. 28 U.S.C. §
2253(c)(2) (“A certificate of appealability may issue . . . only if . . . .”). The text of § 2254(d)(1) is
noticeably similar. Id. § 2254(d)(1) (“An application for a writ of habeas corpus . . . shall not be
granted . . . unless . . . .). The Gonzales Court contrasted paragraph (c)(2) with paragraph (c)(1),
observing that Congress clearly knew how to invoke jurisdictional language and that, by not doing
so in paragraph (c)(2), it intended (c)(2) to be nonjurisdictional. Gonzales, 132 S. Ct. at 649. The
same argument applies to paragraph (d)(1). The drafters of AEDPA knew how to use jurisdictional
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language, yet they omitted it from the text of § 2254(d)(1). Section § 2254(d)(1) is therefore
nonjurisdictional.
It is important to note that this does not mean that either § 2253(c)(2) or § 2254(d)(1) are not
mandatory. Indeed, one of the crucial inferences taken from Gonzales is that there is a distinction
between a “mandatory” provision and a “jurisdictional” provision. While all jurisdictional
provisions are mandatory, not all mandatory provisions are jurisdictional. See 132 S. Ct. at 651
(“This Court, moreover, has long rejected the notion that all mandatory prescriptions, however
emphatic, are . . . properly typed jurisdictional.” (internal quotation marks omitted)). Though not
jurisdictional, mandatory provisions must still be followed. See ibid. (“If a party timely raises the
COA’s failure to indicate a constitutional issue, the court of appeals panel must address the
defect . . . .” (emphasis added)). However, mandatory nonjurisdictional provisions do not strip
courts of their ability consider an issue in the same way that mandatary jurisdictional provisions do.
B
While mandatory nonjurisdictional provisions are not categorically unwaivable, this does
not mean that they are categorically waivable. Some mandatory provisions, such as AEDPA’s one-
year statute of limitation, are subject to deliberate abandonment by the state. Wood, 132 S. Ct. at
1834 35. Others, such as the deferential standard of review under § 2254(d)(1), may not be forfeited
or waived. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); see also K & T Enters., Inc. v.
Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996) (holding that the standard of review is a
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determination that the court makes for itself). We recently held the evidentiary restricts of Pinholster
are similarly unwaivable. Moore, 708 F.3d at 784.
There is a substantial difference between the first of these examples and the last two. Statutes
of limitation are an affirmative defense to a cause of action. Standards of substantive and evidentiary
review define the action itself. We have forbidden litigants from agreeing to case-specific
substantive and evidentiary standards in habeas cases, because allowing them to do so would
frustrate Congress’s intent to limit the scope of federal review of state criminal proceedings. Cf.
Richter, 131 S. Ct. at 786 (“[AEDPA] preserves authority to issue the writ in cases where there is
no possibility fairminded jurists could disagree that the state court’s decision conflicts with this
Court’s precedents. It goes no farther.”). Conceding a defense to a claim under §2254(d) does not
raise the same concerns. Rather than agreeing to relief under a completely different set of rules than
those established by Congress, concession of a defense simply manifests accord with the petitioner’s
argument for relief under the established §2254(d) standard.
The type of concession made here is the type of concession that the state may make as master
of its own case. Waiver of an argument against the merits of a claim for relief under § 2254(d)(1)
is quite different from an attempt to waive the deferential standard of paragraph (d)(1) itself or the
backward-looking evidentiary restrictions explicated in Pinholster.2 Rather, the concession here is
2
As noted earlier, the state has conceded this argument under a pre-Cunningham
understanding of Blakely. Accordingly, this is not an attempt to waive the backward-looking legal
restrictions of Greene v. Fisher, which forecloses our consideration of Cunningham. Were this the
case, the outcome might be quite different. See Moore, 708 F.3d at 784.
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more analogous to an intentional abandonment of an affirmative defense. See Wood, 132 S. Ct. at1834 35. In both instances, the state waives an argument that, under the established rules of §
2254(d), would have defeated the petitioner’s claim for relief. Such a waiver does not ask us to grant
relief beyond the confines of our jurisdiction, nor does it ask us to ignore a mandatory facet of
AEDPA.
If the State of Tennessee wishes to confess to a violation of clearly established federal law,
it is free to do so. We may not ignore the state’s explicit and unequivocal waiver. We therefore hold
that Allen has made an initial showing of entitlement to relief under AEDPA.
IV
The state urges us to deny the habeas writ because the record contains overwhelming and
uncontroverted evidence that would support a jury finding on all three of the applicable
enhancements, thus rendering the Blakely error harmless. We agree. We therefore affirm the district
court’s denial of habeas relief.
A
A Blakely error is not “structural” and is thus amenable to a harmless-error analysis.
Villagarcia v. Warden, 599 F.3d 529, 536 (6th Cir. 2010) (citing Washington v. Recuenco, 548 U.S.
212, 218, 221 (2006)). When reviewing sentencing errors on direct appeal, e.g., federal sentences
imposed prior to (but finalized after) United States v. Booker, 543 U.S. 220 (2005), we apply a
defendant-friendly standard of review remand is necessary unless we are certain that any error did
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not affect the district court’s selection of the sentence imposed. United States v. Hazelwood, 398
F.3d 792, 801 (6th Cir. 2005) (citing Williams v. United States, 503 U.S. 193, 203 (1992)).
However, we apply the more state-friendly standard from Brecht v. Abrahamson, 507 U.S.
619 (1993), in the context of AEDPA.3 Under the Brecht standard, “an error is harmless unless it
had substantial and injurious effect or influence” on the outcome of the case. Fry v. Pliler, 551 U.S.
112, 116 (2007) (internal quotation marks omitted). “Under Fry, an error is considered not harmless
when ‘the matter is so evenly balanced that the habeas court has grave doubt as to the harmlessness
of the error.’” Villagarcia, 599 F.3d at 537 (quoting Hereford v. Warren, 536 F.3d 523, 553 (6th
Cir. 2008)).
The Recuenco court observed that
Our decision in Apprendi [v. New Jersey, 530 U.S. 466 (2000),] makes clear that
“[a]ny possible distinction between an ‘element’ of a felony offense and a
‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury,
and judgment by court as it existed during the years surrounding our Nation’s
founding.” [Id.] at 478 (footnote omitted). Accordingly, we have treated sentencing
factors, like elements, as facts that have to be tried to the jury and proved beyond a
reasonable doubt. [Id. at 483 84.]
548 U.S. at 220 (second alteration in original). We accordingly treat a Blakely error the same way
we would an error in instructing the jury on the essential elements of a crime. Ibid. (citing Neder
v. United States, 527 U.S. 1 (1999)); see also United States v. Williams, 493 F.3d 763, 766 (7th Cir.
3
Allen urges us to employ a stricter standard of review for the purposes of this case. He
claims that a Blakely error can only be harmless if it amounts to a “quasi-clerical” error. He does
not elaborate what he means by this, but he apparently urges a stricter standard than that of
Hazelwood. He has provided no legal basis for this assertion, and it conflicts with the law of this
circuit.
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2007) (“The implication of equating sentencing factors and elements of a crime for purposes of the
requirements of the jury and the burden of proof is to equate them also for harmless error
purposes.”). We will find a jury-instruction error to be harmless if it is “is clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the error.” United States v.
King, 272 F.3d 366, 378 (6th Cir. 2001) (citing Neder, 527 U.S. at 18). In the context of AEDPA
review, we need not be “certain” of this, but only free of “grave doubt.” Villagarcia, 599 F.3d at 537
& n.7.
B
No such doubt can exist in this case. The record is replete with uncontroverted evidence
supporting each of the enhancements applied by the state trial court. We address them in turn.
1
First, the trial court found that Allen was “a leader in the commission of an offense involving
two (2) or more criminal actors . . . .” Tenn. Code Ann. § 40-35-114(3) (2002) (current version at
Tenn. Code Ann. § 40-35-114(2) (2012)). The state would have us accept a statement made by Allen
at his sentencing, in which he claimed that his wife joined the abuse only at his urging. However,
this unsworn, post-trial statement was not presented to the jury and does not constitute a judicial
admission. It is thus inappropriate for our consideration. What is appropriate, however, is Allen’s
voluntary and uncontroverted statement to the police: “[A]nything that my wife might have done was
total coercion and manipulation on my part.” Allen provides us with no reason why we should have
grave doubt in the veracity of his own words. Any error by the state trial court was harmless.
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2
The second applicable enhancement, that Allen committed the crimes to gratify a desire for
pleasure or excitement, Tenn. Code Ann. § 40-35-114(8) (2002) (current version at Tenn. Code Ann.
§ 40-35-114(7) (2012)), requires “additional objective evidence [beyond the sex act itself] of the
defendant’s motivation to seek pleasure or excitement through sexual assault.” State v. Arnett, 49
S.W.3d 250, 262 (Tenn. 2001). Such additional evidence may include, but is not limited to,
“sexually explicit remarks and overt sexual displays made by the defendant, such as fondling or
kissing a victim or otherwise behaving in a sexual manner . . . .” Ibid. Specifically in cases of child
exploitation and child rape, sexually explicit discussion and the display of pornography may satisfy
this requirement. See, e.g., State v. Osborne, 251 S.W.3d 1, 26 (Tenn. Crim. App. 2007) (applying
the enhancement to a child-rape conviction on evidence that the defendant showed pornography to
the victims as means of encouraging them to engage in similar sexual acts); State v. Aaron, No.
M2002-02288-CCA-R3-CD, 2004 WL 1533825 at *19 (Tenn. Crim. App. July 8, 2004) (affirming
application to a child-exploitation conviction on evidence that the defendant showed the victim child
pornography and bragged about having sexual relations with young girls before forcing her to take
nude photos).
The record before us contains a prodigious amount of evidence that Allen sought to gratify
his desire for pleasure and excitement through his crimes: He engaged in sexually explicit
discussions with the boy, displayed pornography, watched as his wife engaged in oral and vaginal
sex with the victim, and himself engaged in mutual fellatio with the boy. Allen videotaped some of
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these sexual encounters and later viewed them with his wife. As the magistrate judge concluded,
this evidence leaves little doubt, let alone grave doubt, that the jury would have found this element
to be satisfied beyond a reasonable doubt were this question put to it.
3
Lastly, the state trial court found that Allen abused a position of private trust. See Tenn.
Code Ann. § 40-35-114(16) (2002) (current version at Tenn. Code Ann. § 40-35-114(14) (2012)).
The state must prove two elements to satisfy this enhancement. It must first show that “the offender
formally or informally stood in a relationship to the victim that promoted confidence, reliability, or
faith.” State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). “The position of parent, step-parent,
babysitter, teacher, coach are but a few obvious examples [of a position of trust].” Ibid.Additionally, the existence of a position of trust does not necessarily depend upon “the length or
formality of the relationship, but upon the nature of the relationship.” Ibid. If the evidence supports
this first element, the state must then show that “the position occupied was abused by the
commission of the offense.” Ibid.The record is, once again, teeming with uncontroverted evidence that Allen occupied and
abused a position of private trust with D.M. According to the victim’s mother, D.M. did not know
his father and lacked a male role model in his life. The victim’s mother approved of the friendship
between Allen and D.M., in the hope that Allen would serve as the father figure that D.M. lacked.
The victim spent substantial time at Allen’s residence under his care and supervision roughly one
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day a week between the Winter of 2001 and the Spring of 2002. Allen’s attorney did not cross
examine the victim’s mother.
Also telling is a taped phone conversation between Allen and the victim. D.M. expressed
shame and embarrassment about what happened with him, Allen, and Allen’s wife. Allen assured
the boy that “there [was] nothing to be ashamed of and nobody knows.” Allen repeatedly sought
assurance that D.M. would not tell anyone, at one point stating: “You promise me? . . . I mean honor,
word of honor to me [D.M.], which is the you know biggest word do you know what I’m saying
[sic].” He went on to ask (assumably rhetorically) whether D.M. would feel better if he just turned
himself in and went to jail, to which D.M. responded in the negative. Once again, Allen did not
contest the substance of this conversation.
It is clear from the record before us that Allen occupied a role of trust with D.M., whether
it be that of a father figure, as the victim’s mother had hoped, or that of a care taker, as he certainly
was for the duration of D.M.’s visits to his home. The taped phone call between the victim and
Allen demonstrates Allen’s abuse of this position through his repeated attempts to manipulate and
shame D.M. into silence. This, of course, is in addition to the highly reasonable inference that Allen
and his wife coaxed D.M., at least to some degree, into the abusive sexual activity at the center of
this case. Again, we have no doubt that the failure to submit this element to the jury was harmless
in light of the record before us.
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4
Allen resists this conclusion by arguing that these enhancements are subjective in nature, that
our review of the applicable evidence requires “difficult character and credibility assessments,” and
that this alone should give us grave doubt as to the harmlessness of the trial court’s error.
Appellant’s Br. 26. In essence, Allen argues that, though the evidence could support a jury finding
on all three enhancements, it does not necessarily support such a finding, and we must therefore find
the failure to submit these elements to the jury was harmful. In many respects, this is a repackaging
of his earlier argument for a “quasi clerical” standard of harmless-error review. We note again that
this argument is without a legal basis and is contrary to the law of this circuit.
To the extent that this represents an argument against the weight of the record to support the
enhancements, we are simply unpersuaded. Allen would have us ignore a near-insurmountable
amount of relevant, persuasive, and uncontroverted evidence based upon speculation of what the jury
might have done were these enhancements put to it. That is not how a harmless-error analysis
works, especially within the deferential context of AEDPA. So long as the record leaves us free of
grave doubt that a jury would have found the omitted element or enhancement satisfied beyond a
reasonable doubt, we must leave the conviction and sentence undisturbed. As the Supreme Court
stated in Neder, the case that formed the logical basis for Recuenco: “[T]his approach reaches an
appropriate balance between society’s interest in punishing the guilty and the method by which
decisions of guilt are to be made.” 527 U.S. at 18. Because he has failed to show harm resulting
from the state’s admitted error, Allen is not entitled to habeas relief.
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No. 11-5843
Allen v. Parker
C
Our opinion today is entirely consistent with our opinion in Villagarcia. There, a panel of
this court found that Ohio’s pre-Blakely sentencing regime violated the petitioner’s Sixth
Amendment jury-trial right. 599 F.3d at 537 39. Similar to the state here, the respondent in
Villagarcia claimed that, based on the record, the state court undoubtably would have imposed the
same sentence absent the Blakely error, and it was therefore harmless. Ibid. The panel disagreed,
citing State v. Foster, 845 N.E.2d 470 (Ohio 2006), abrogated on other grounds by Oregon v. Ice,
555 U.S. 160 (2009). Villagarcia, 599 F.3d at 537 39. In Foster, the Ohio Supreme Court found
the statutory provision under which the petitioner was sentenced to be unconstitutional in light of
Blakely and severed the provision from the state’s sentencing scheme. Foster, 845 N.E.2d at
498 99. The resulting post-Foster regime gave Ohio courts unfettered discretion to consider any
relevant enhancing or mitigating factor, discretion that trial courts did not enjoy pre-Foster when
sentencing felons such as Villagarcia. Though the panel noted that the state’s argument “[was] not
without force,” Villagarcia, 599 F.3d at 537, it ultimately agreed that the pre-Foster sentencing court
was unable to consider a number of mitigating factors that, based upon the record before it, may well
have resulted in a reduced sentence for Villagarcia under the post-Foster framework and conditional
habeas relief was therefore warranted. Id. at 538 39.
Unlike Ohio, Tennessee’s sentencing statute has remained mostly the same. Though judges
are no longer required to do so, the statute still recommends that sentencing judges consider the same
basic list of enhancing and mitigating factors. The only major difference is that the mandatary
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No. 11-5843
Allen v. Parker
threshold finding required by the pre-Cunningham version of the statute has been eliminated to give
a court complete discretion at the beginning of its analysis. Allen has provided us with no reason
to doubt that a sentence imposed under the post-Cunningham statute would be similar in all material
respects to the sentence he is presently serving.4 Habeas relief would be fruitless and therefore
inappropriate.
V
We are free of grave doubt that any error committed by the trial court did not prejudice Allen.
He has accordingly failed to prove his entitlement to relief under AEDPA. We AFFIRM the district
court’s denial of the writ of habeas corpus.
4
After oral argument, Allen provided an additional citation to Lovins v. Parker, 712 F.3d 283(6th Cir. 2013). He asserts, without further explanation, that the Lovins court “did not hesitate in
finding that there was no harmless [Blakely] error . . . .” It is very true that the Lovins court “did not
hesitate” in finding that the error there was not harmless, specifically because the state forfeited the
argument. Id. at 303.
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