Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio

Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:

Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus.  In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004).  Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice.  The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available.  However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal.  We therefore reverse.

Here is how the dissent by Judge Keith in Cvijetinovic gets started:

The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent.  See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991).  This reading is not only unfounded but also poses worrying policy concerns.  Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.