Mickey Williams v. Kevin Hampton ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0408n.06
No. 18-6132
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jul 16, 2020
DEBORAH S. HUNT, Clerk
MICKEY WILLIAMS, )
)
Petitioner-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE EASTERN
KEVIN HAMPTON, ) DISTRICT OF TENNESSEE
)
Respondent-Appellant. ) OPINION
)
BEFORE: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Warden Kevin Hampton appeals the conditional
grant of habeas relief on Blakely grounds to Mickey Lee Williams. Issues presented are
(1) whether the state trial court erred by relying at sentencing on the factual conclusion that
Williams had a “previous history of unwillingness to comply” with conditions of release without
such a finding by the jury, (2) the status of any such Sixth Amendment error under federal law,
and (3) whether any such error was harmless. The Warden now concedes that the enhancement
applied was inconsistent with Blakely and that the state court’s decision to the contrary was an
unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C.
§ 2254(d). The only remaining issue in dispute is whether the conceded error was harmless—
whether, had the jury been asked to, it would have made the necessary factual findings. Because
evidence that would support this enhancement was not presented to the jury, we cannot know what
No. 18-6132, Williams v. Hampton
the jury would have found. Accordingly, there is no basis to conclude that the trial court’s error
was harmless. We therefore AFFIRM.
I. BACKGROUND
Williams was convicted of second-degree murder and arson for stabbing and killing Terry
Johnson and starting a fire in the decedent’s home. The facts as recounted by the Tennessee Court
of Criminal Appeals (“TCCA”) portray a chaotic episode in which Williams stabbed Terry
Johnson—the husband of Patricia Johnson, with whom Williams had had an affair—after
confronting the Johnsons at their home and fighting with Terry Johnson in the yard. A jury
convicted Williams of second-degree murder and arson on June 7, 2004, and the trial court
imposed an effective sentence of 24 years.
On October 27, 2004, Williams filed an untimely motion for a new trial, which included a
challenge to the trial court’s decision to sentence him above the presumptive minimum sentence
in reliance on aggravating factors not found by a jury. The trial court denied the motion but,
without explanation, reduced Williams’s sentence to 23 years. On direct appeal, the TCCA
affirmed Williams’s conviction, but reinstated the original 24-year sentence on the basis that the
trial court was without jurisdiction to modify it. At the state post-conviction stage, the Grainger
County Circuit Court denied Williams’s post-conviction claims as to trial court error, but granted
a delayed appeal, finding that Williams’s trial counsel was ineffective for failing to file a timely
motion for new trial. Williams raised his Blakely claim in another motion for new trial and it was
denied on the merits.
Williams filed a § 2254 federal habeas petition on September 16, 2015, raising numerous
grounds for relief concerning his trial, sentencing, and state court collateral proceedings. On
September 26, 2018, the district court issued a comprehensive opinion denying all but Williams’s
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Blakely claim. It reasoned that the trial court erred by relying on facts not found by the jury to
impose a sentence above the presumptive minimum. The Warden appeals the disposition of
Williams’s Blakely claim.
II. ANALYSIS
A. Standard of Review
In a federal habeas case, we review a district court’s conclusions of law de novo. Hand v.
Houk, 871 F.3d 390, 406 (6th Cir. 2017). We review a district court’s own findings of fact for
clear error. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005).
Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner is
entitled to relief on a constitutional claim adjudicated by a state court on the merits only where the
state court decision was “contrary to, or involved an unreasonable application of clearly
established federal law, as determined by the Supreme Court of the United States,” or “resulted in
a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). In addition to showing that
the state court’s adjudication of a constitutional claim warrants federal relief under § 2254(d), a
Blakely error must amount to more than harmless error. Lovins v. Parker, 712 F.3d 283, 303 (6th
Cir. 2013). To establish a harmful error on habeas review, Williams must show that the Blakely
error had “‘a substantial and injurious effect’ upon [his] sentence, or that there is ‘grave doubt’ as
to whether the error had such an effect.” Owens v. Parris, 932 F.3d 456, 459 (6th Cir. 2019)
(quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)); Brecht v. Abrahamson, 507 U.S. 619,
637 (1993).
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B. Discussion
1. Clearly Established Federal Law
In Apprendi v. New Jersey, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490
(2000). It then clarified this holding in Blakely v. Washington, reasoning that “‘the statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendants.” 542 U.S. 296, 303
(2004) (emphasis in original); see also Lovins, 712 F.3d at 289–90.
At the time the district court issued its opinion, the question of whether the Tennessee
Supreme Court’s application of Blakely to judicial fact-finding at sentencing was “contrary to, or
involved an unreasonable application of,” Supreme Court precedent was pending before this court
in Owens v. Parris. 932 F.3d at 459. We concluded that it was unreasonable. Id. Owens held
that the Tennessee sentencing scheme allowing judges to find facts that increased a defendant’s
exposure to punishment violated the Sixth Amendment, and that the Tennessee Supreme Court’s
decision to the contrary was an unreasonable application of Blakely. Id. at 458–59. In light of
Owens, the Warden now concedes that Williams’s sentence violated the Court’s clearly established
Sixth Amendment jurisprudence and that the only remaining issue on appeal is whether the error
was harmless.
2. Harmless Error
The trial court found three sentencing enhancement factors applicable to Williams’s
second-degree murder conviction: “(1) previous history of criminal convictions in addition to that
necessary to establish the appropriate range; (2) previous history of unwillingness to comply with
conditions of release in the community; and (3) possession or use of a deadly weapon during the
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commission of the offense.” Williams v. Cook, No. 3:15-CV-00415, 2018 WL 4621820, at *17
(E.D. Tenn. Sept. 26, 2018). Based on these enhancements, the trial court increased Williams’s
sentence from the presumptive sentence of 20 years to a term of 25 years. Id. The sentencing
court explained that it placed “great weight” on the first and third enhancement factors; but also
included the second factor in its sentencing decision. Id. It then lowered Williams’s sentence to
24 years in light of life history information presented in mitigation. Id. The parties agree that the
first enhancement factor occupies the exception explained in Blakely, 542 U.S. at 302, permitting
judicial fact-finding about a defendant’s criminal history, and that the third was necessarily
encompassed by the jury’s findings of fact. Id. at *17 n.18. Only the second enhancement factor
is at issue in this appeal. See Tenn. Code Ann. § 40-35-114(9) (2004).
To assess whether the conceded error had a substantial and injurious effect upon Williams’s
sentence, we ask “whether the jury would have found [the enhancement] if that question had been
submitted to it.” Owens, 932 F.3d at 459. Owens explained that “the question whether the court
would have imposed the same sentence on remand is itself incoherent in cases where—as here—
the court’s factfinding liberated the court to impose the sentence that the court in fact imposed,
rather than mandated that sentence.” Id. at 460. And it concluded that “[w]hat is missing . . . is a
jury finding, not a judicial one. Hence the question as to harmlessness is whether the jury would
have made the necessary finding had the jury been asked to make it.” Id. Because the court’s fact-
finding “liberated” it to impose the sentence at issue in this case, that test applies here.
Owens concluded that the factual findings necessary to the “exceptional cruelty”
enhancement at issue were established from the findings made by the jury. We reasoned that
because the “jury did in fact convict him of second-degree murder. . . . we are confident that the
jury rejected Owens’s account of the murder and accepted the State’s.” Id. at 460–61. And
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because believing Owens’s testimony would have been the only basis not to find the facts
necessary to the enhancement, we had “little doubt that, if asked, the jury would have made the
requisite finding” that Owens’s actions constituted “psychological abuse or torture.” Id. at 461.
Critically, we asked what the jury would have found based on the evidence actually presented to
it.
Here, by contrast, the evidence of the enhancement at issue was not—in any form—before
the jury. Unlike in Owens, where evidence about the circumstances surrounding the crime had the
effect of supporting a finding of the exceptional cruelty enhancement, the jury in this case was
presented with no evidence that had any bearing on whether Williams had a previous history of
unwillingness to comply with conditions of release. Neither the enhancement, nor any evidence
related to it, was presented to the jury. And because the state did not present the jury with such
evidence, we are not in a position to know or derive what the jury would have found had it been
asked. It cannot be said, therefore, that the constitutional error in question was harmless.
Moreover, we know this enhancement had some impact on the trial court’s sentence because, when
presented with the Blakely error, it attempted (ultimately unsuccessfully) to lower Williams’s
sentence. See Williams, 2018 WL 4621820, at *23; see also Lovins, 712 F.3d at 303–04. In sum,
because evidence of the enhancement was never presented to the jury, the trial court’s Blakely
error was not harmless.
III. CONCLUSION
Because the Blakely error in question was not harmless, we AFFIRM the conditional grant
of habeas relief to Williams.
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NALBANDIAN, Circuit Judge, concurring in judgment. I agree with the lead opinion
that the jury never heard evidence on the sentencing enhancement and that Williams’s sentence
stemmed from judicial factfinding, which constitutes a Blakely error. I also agree that the error was
not harmless. So I join Judge Stranch’s conclusion that the error produced a “substantial and
injurious effect or influence” on Williams’s sentence under Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). That said, I disagree with how the lead opinion’s harmless error analysis cabins itself
to evidence that the jury considered. Instead, I believe that this Court should determine what a jury
would have done had it heard the full evidence available to the sentencing judge. Under that
analysis, a Blakely error is harmless if the jury would have applied the sentencing enhancement
had it heard the government’s case. All in all, I find that the Blakely error here wasn’t harmless,
but I would use a broader framework than the one applied by the lead opinion. Thus, I concur.
When addressing a harmless error question, like the one here, this Court asks “whether the
jury would have returned the same verdict absent the error.” Owens v. Parris, 932 F.3d 456, 460
(6th Cir. 2019) (quoting Washington v. Recuenco, 548 U.S. 212, 221 (2006)). Applying Owens,
the lead opinion reasons that because the jury heard little about the enhancement, or evidence
supporting the enhancement, the error could not have been harmless. Yet I do not agree that the
government’s failure to present evidence on a sentencing enhancement to a jury necessarily
precludes finding a harmless Blakely error. Rephrased, the government’s error can still be harmless
even when a jury fails to hear details about the enhancement, so long as no structural error occurs.1
When performing harmless error review, federal courts must rule “in light of the record as a
whole[.]” Brecht, 507 U.S. at 638; accord, e.g., McWilliams v. Comm’r, Ala. Dep’t of Corrs.,
1
Structural errors touch “the framework of any criminal trial,” such as failure to respect the
defendant’s right to counsel or to a public trial. Weaver v. Massachusetts, 137 S. Ct. 1899, 1907–
1909 (2017).
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940 F.3d 1218, 1226 (11th Cir. 2019) (appellate courts must “look to the record of the state trial
court as a whole” when reviewing for harmless error under Brecht). That’s because the point of
harmless error inquiry is to ask what would have happened without the trial error. See Brecht, 507
U.S. at 629. In short, the government’s failure to show the jury the last card in a winning hand
constitutes harmless error, assuming no structural error occurred. See United States v. Henderson,
626 F.3d 326, 333 (6th Cir. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)
(“Errors are deemed harmless when ‘the reviewing court may confidently say, on the whole record,
that the constitutional error was harmless beyond doubt.’”)). But that counterfactual analysis turns
on whether the government presented a convincing case.
The government had the burden to establish Williams’s “previous history of unwillingness
to comply with the conditions of a sentence involving release in the community.” Tenn. Code Ann.
§ 40-35-114(9) (2004). The record reflects weaknesses in the government’s case suggesting the
error’s harmfulness. First, the government relied on the wrong conviction at trial when arguing
that the sentencing enhancement should apply. Although the sentencing enhancement sprung from
an April 1996 DUI, the government erroneously relied on a 1998 DUI during the sentencing
hearing. (R. 12, Tr. Sentencing Hr’g, PageID # 998.) When reconstructing a trial to review for
harmless error, failure to discuss the correct episode of noncompliance strikes me as too grave
misstep to pave over. It’s hard to imagine that we would uphold, in a typical case, a sentence where
the jury never heard evidence over the probation violation supporting a sentencing enhancement.
Next, Williams presents a colorable argument that a jury might not have found that his
singular violation of probation conditions amounted to a history of noncompliance. On its face,
the enhancement’s “previous history” language might well require multiple probation violations.
Yet although the sentencing judge did not fully explain why he applied the previous history
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sentencing enhancement, Tennessee state court decisions suggest that even one probation violation
can trigger the enhancement. See, e.g., State v. King, No. E2002-00634-CCA-R3-CD, 2003 WL
21261775, at *7–8 (Tenn. Crim. App. June 2, 2003); State v. Ussery, No. M2000-00194-CCA-R3-
CD, 2000 WL 1369494, at *4 (Tenn. Crim. App. Sept. 22, 2000). Williams, I think, rightly frames
this as a question of law: Whether one incident, here a DUI, can satisfy the previous history
requirement. And answering legal questions falls outside the jury’s purview.
Still, even though Williams cannot complain that the jury didn’t consider a question of law,
he’s right that the jury still needed to make the factual determination that his singular probation
violation at issue met the enhancement’s requirements. Although Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), does not require that “the fact of a prior conviction . . . be submitted to a
jury,” the government needed to show more than Williams’s conviction. It also needed to prove
that the DUI violated Williams’s release conditions. In the end, the jury had to find that Williams
committed the DUI while on probation, yet the government offered scant evidence on that issue.
Considering these gaps in the government’s argument, I cannot conclude that a jury would
have found the predicate facts supporting the previous history enhancement if, like the sentencing
judge, it was privy to all contours of the case. Owens tells us that harmless error must relate to “a
jury finding, not a judicial one.” 932 F.3d at 460. But that holding does not confine this Court’s
analysis to the evidence heard by the jury. It follows that we resolve these claims by hypothesizing
about how the jury would have ruled, were it given the chance, based on the record built at trial.
Looking at the trial record as a whole, which includes evidence introduced during the sentencing
hearing, the government’s missteps confirm that the Blakely error was not harmless. Because I
don’t believe that a jury would have applied the previous history enhancement had it made the
decision instead of the sentencing judge, I would AFFIRM.
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No. 18-6132, Williams v. Hampton
ALICE M. BATCHELDER, Circuit Judge, dissenting. Because I find the sentencing
error in this case was harmless, I respectfully dissent. At Williams’s sentencing hearing, the trial
court explained its determination of the enhancement factors as follows:
The [c]ourt has considered the principles set forth in the Criminal Sentence Reform
Act of 1989, listened to arguing of counsel, the record, the trial record, the pre-
sentence investigation report[,] and with regard to the Second Degree Murder
Conviction the [c]ourt finds the following enhancing factors to apply:
[1] That the defendant does have a previous history of criminal convictions
in addition to that necessary to establish the appropriate [sentence] and the [c]ourt
will take great weight in that factor.
[2] The [c]ourt does find that the defendant has a previous history of
unwillingness to comply with conditions release in the community.
[3] The [c]ourt finds that the defendant possessed or employed a deadly
weapon during the commission of the offense, puts great weight in that factor.
The sentence is presumptive of 20 [years in prison]. The [c]ourt finds that
the previous enhancing factors noted by the [c]ourt are sufficient to and should
increase this defendant’s sentence to 25 years.
The [c]ourt remembers the testimony from the one witness that stated that
this defendant did intend to go, and in fact, take the life of Mr. Johnson on this
occasion and the [c]ourt, the trial court - - I mean the jury could in fact have returned
a verdict of First Degree Murder.
R. 12-7 at 7-8 (Sentencing Trans., June 7, 2004) (numbering and emphasis added).
As both the district court and the lead opinion aptly explained, neither the first nor the third
enhancement is at issue; both were properly considered and applied. See, e.g., Williams v. Cook,
No. 3:15-cv-00415, 2018 WL 4621820, at *22 (E.D. Tenn. Sept. 26, 2018). The second
enhancement, i.e., Williams’s “previous history of unwillingness to comply with the conditions of
a sentence involving release in the community,” Tenn. Code. Ann. § 40-35-114(9) (2004), is based
on undisputed evidence from the pre-sentence investigation report, which documented that:
(1) Williams was convicted of public intoxication on April 11, 1996 (his third such offense in three
weeks) and placed on 30 days probation; (2) Williams was convicted of driving under the influence
(DUI) just two weeks later, on April 25, 1996; and (3) Williams committed over a dozen additional
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offenses between the April 1996 DUI and the present murder and arson in March 2002, including
a vandalism offense in August 2001 that placed him on probation with the East Tennessee Human
Resource Agency (ETHRA) for an unstated period of time. R. 12-1 at 64-67; PgID 611-14.
Neither this evidence of Williams’s prior offenses nor this contention that the sequence of offenses
shows an “unwillingness to comply” with conditions of a release into the community was
presented to the jury, so the jury was never asked to decide either. Regardless, I cannot agree that
this necessarily invalidates the sentence imposed here for the murder and arson. Even omitting
this second factor altogether, the first and third factors (i.e., the prior convictions and deadly
weapon)—along with the sentencing court’s remark that the jury could have convicted Williams
of first-degree murder—are more than sufficient to support the sentencing decision.
In Villagarcia v. Warden, Noble Correctional Institution, 599 F.3d 529, 536 (6th Cir.
2010), we expressly “adopted the more state-friendly standard of Brecht v. Abrahamson, 507 U.S.
619, 631 (1993), for determining harmless error in cases involving collateral review of state-court
decisions.” Lovins v. Parker, 712 F.3d 283, 303 (6th Cir. 2013) (quotation marks omitted).
“[I]n cases involving review of a state-court criminal judgment under 28 U.S.C. § 2254, an error
is harmless unless it had substantial and injurious effect or influence,” or “the matter is so evenly
balanced that [we have] grave doubt as to the harmlessness of the error.” Villagarcia, 599 F.3d at
536-37 (quoting Fry v. Pliler, 551 U.S. 112, 116 (2007) (quotation marks and citations omitted).
Because I cannot conclude that the error here had a substantial and injurious effect or
influence on the sentence and because I do not have a grave doubt as to the harm, I would hold the
error harmless and deny the habeas petition. Therefore, I must respectfully dissent.
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