United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2161
                                   ___________

Timothy J. O'Meara,                     *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Warden Robert Feneis,                   *
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: May 13, 2010
                                Filed: August 19, 2010
                                 ___________

Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Timothy J. O'Meara appeals the denial of a writ of habeas corpus. O'Meara was
convicted of two counts of second-degree criminal sexual assault in Minnesota state
court in April 2000. O'Meara failed to timely file a direct appeal. O'Meara did,
however, obtain postconviction relief from the Minnesota Supreme Court, which
remanded O'Meara's case for resentencing based upon Apprendi v. New Jersey, 

(2000). Before O'Meara's resentencing, the Supreme Court of the United
States decided in Blakely v. Washington that an upward departure from the maximum
statutory sentence is unconstitutional under a guideline sentencing system unless a
jury finds the underlying facts or the defendant admits such facts. 

(2004). After O'Meara's resentencing, he appealed to the Minnesota Court of Appeals,
arguing that Blakely applied to his case. The Minnesota Court of Appeals concluded
that Blakely did not apply retroactively and affirmed O'Meara's new sentence. The
Minnesota Supreme Court subsequently denied review.

       O'Meara filed the instant case for federal habeas relief contending that his new
sentence violates Blakely. The district court1 denied O'Meara's petition after
concluding that the Minnesota Court of Appeals did not act contrary to, or
unreasonably apply, clearly established federal law when it concluded that O'Meara's
conviction became final in 2000 when his direct-appeal period expired and that, as a
result, Blakely did not apply retroactively to his case. We granted a certificate of
appealability to address whether the Minnesota Court of Appeals's decision that
Blakely did not apply to the determination of O'Meara's sentence was contrary to, or
involved an unreasonable application of, clearly established federal law. We now
affirm the judgment of the district court.

                                       I. Background
      In 1999, O'Meara was charged with two counts of second-degree criminal
sexual conduct, in violation of Minnesota Statute § 609.343, subdivision 1(a)(2). He
waived his right to a jury trial and stipulated that he used a video camera to record two
naked boys, ages 9 and 10, masturbating. The state trial court convicted O'Meara of
both counts.

       Prior to sentencing, the prosecution requested that the state trial court sentence
O'Meara as a patterned sex offender under Minnesota Statute § 609.108, subdivision
2.2 At the sentencing hearing, a licensed psychologist testified that, in his opinion,


      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
      2
             Section 609.108, subdivision 2, permit[ted] a court to
             impose a sentence of up to 40 years, "notwithstanding the

                                          -2-
O'Meara was a "patterned sex offender" within the meaning of § 609.108. The state
trial court concluded that O'Meara was a patterned sex offender and sentenced him to
two consecutive 40-year prison terms pursuant to § 609.108, subdivisions 1 and 2. If
the state trial court had sentenced O'Meara under § 609.343, subdivision 2—criminal



            statutory maximum imprisonment penalty otherwise
            provided for the offense." A defendant c[ould] be sentenced
            to an increased penalty under subdivision 2 only if "the
            factfinder determines, at the time of the trial or the guilty
            plea, that a predatory offense was motivated by, committed
            in the course of, or committed in furtherance of sexual
            contact or penetration, as defined in section 609.341, and
            the court is imposing a sentence under subdivision 1."

State v. Grossman, 

, 549 (Minn. 2001) (quoting Minn. Stat.
§ 609.108, subdiv. 2). In turn, § 609.108, subdivision 1(a),

      require[d] a court to impose a sentence of not less than double the
      presumptive sentence and not more than the statutory maximum sentence
      when each of the following three conditions [was] satisfied: First, the
      court must be imposing a sentence for a conviction of any of four
      enumerated offenses, including first-degree criminal sexual conduct, or
      for a conviction of any other predatory crime "if it reasonably appears to
      the court that the crime was motivated by the offender's sexual impulses
      or was part of a predatory pattern of behavior that had criminal sexual
      conduct as its goal." Minn. Stat. § 609.108, subd. 1(a)(1) (2000). Second,
      the court must find "that the offender is a danger to public safety." 

Third, the court must also find "that the offender needs
      long-term treatment or supervision beyond the presumptive term of
      imprisonment and supervised release." This finding "must be based on
      a professional assessment by an examiner experienced in evaluating sex
      offenders that concludes that the offender is a patterned sex offender."
      

was repealed effective August 1, 2006.

                                         -3-
sexual misconduct—rather than the patterned sex offender statute, the maximum
sentence for each count would have been 25 years' imprisonment.

        O'Meara failed to timely appeal his judgment of conviction.3 But before the
time period in which he could have directly appealed expired, the Supreme Court of
the United States decided Apprendi.4 In April 2002, O'Meara petitioned for state
postconviction relief, arguing, inter alia, that his sentence violated Apprendi. The state
trial court denied O'Meara's petition for postconviction relief, and the Minnesota Court
of Appeals affirmed. O'Meara v. State, No. C0-02-1982, 

(Minn.
Ct. App. July 29, 2003) (unpublished) ("O'Meara I").

       On May 13, 2004, the Minnesota Supreme Court reversed, holding that the
Minnesota Court of Appeals erred in concluding that O'Meara was not entitled to the
benefit of Apprendi. O'Meara v. State, 

, 341 (Minn. 2004) ("O'Meara
II"). According to the court,

      if a case is pending on direct review when a new rule of federal
      constitutional criminal procedure is announced, the defendant is entitled
      to benefit from that new rule. But if the defendant's conviction is already
      final at the time the new rule is announced, then the criminal defendant
      ordinarily may not avail himself of the new rule.

(footnotes omitted) (citing Griffith v. Kentucky, 

(1987);
Teague v. Lane, 

(1989)). The court then addressed when O'Meara's
conviction became "final," stating:




      3
        O'Meara filed his appeal three days after the August 6, 2000 due date. As a
result, his appeal was dismissed.
      4
       The Supreme Court decided Apprendi on June 26, 2000.

                                           -4-
      O'Meara's appeal period expired on August 6, 2000. Having failed to
      perfect a direct appeal, his conviction became final on that date.
      Apprendi was decided on June 26, 2000. Because the Apprendi decision
      was handed down before O'Meara's conviction became final, O'Meara is
      entitled to benefit from the Apprendi rule, as we applied it in Grossman.
      The state has conceded that if O'Meara is entitled to benefit from the
      Apprendi rule, his sentence was imposed in violation of Apprendi, and
      must therefore be reduced.

(emphasis added). In light of its holding, the court

      [r]eversed and remanded for imposition of the statutory maximum
      sentences of two consecutive 25-year terms under Minn. Stat.
      §§ 609.108, subd. 1, and 609.343, subd. 2, plus the conditional release
      term of 10 years mandated by Minn. Stat. § 609.109, subd. 7(a).

      While O'Meara awaited resentencing, on June 24, 2004, the Supreme Court
issued Blakely, holding that an upward departure from the maximum statutory
sentence is unconstitutional under a guideline system unless a jury finds the
underlying facts or the defendant admits such facts.

       On August 11, 2004, the state trial court resentenced O'Meara. At the
resentencing hearing, O'Meara argued that "under Blakely and Apprendi, the longest
sentences he could receive were the 'top of the box' presumptive guidelines." State v.
O'Meara, No. A-04-2140, 

, at *2 (Minn. Ct. App. Dec. 27, 2005)
(unpublished) ("O'Meara III"). The state trial court rejected O'Meara's argument,
concluding "that Blakely did not apply to [O'Meara's] case because [O'Meara's] case
had become final in August 2000, well before the decision in Blakely. Based on its
earlier findings under the patterned sex offender statute, the court sentenced [O'Meara]
to two consecutive 25-year prison terms." 

appealed to the Minnesota Court of Appeals, asserting that "his
sentence is unconstitutional because a judge, not a jury, decided the facts supporting
the upward durational departure based on the patterned sex offender statute. He
argue[d] that his case was still pending, not yet final, and therefore, the holding in
Blakely applies to his case." Id.5 The court rejected O'Meara's argument, reasoning that
O'Meara's "case became final on August 6, 2000, almost four years prior to Blakely."

The court also rejected O'Meara's contention that "the holding in Blakely is
to be applied retroactively" based on a prior holding of the Minnesota Supreme Court.

v. Houston, 

, 274 (Minn. 2005)). On March 14, 2006,
the Minnesota Supreme Court denied review of the Minnesota Court of Appeals's
decision.

      On March 6, 2007, O'Meara petitioned for writ of habeas corpus pursuant to 28
U.S.C. § 2254, arguing that (1) his sentence was unconstitutional because it was
premised on facts found by a judge and not by a jury; (2) he is entitled to the benefit
of Blakely because his conviction was not final when Blakely was decided; and (3)
even if his sentence was final when Blakely was decided, Blakely announced a
watershed rule that should apply retroactively to his case.

      The magistrate judge issued a report and recommendation in which he
recommended that the district court deny O'Meara's petition and dismiss the action
with prejudice. The magistrate judge determined that the Minnesota Court of Appeals
committed no habeas error "in concluding that O'Meara's conviction was final in
August 2000." As a result, the magistrate judge found that the court's decision "cannot
be contrary to clearly established federal law" and that the court's "application of the


      5
        As the magistrate judge pointed out in his report and recommendation to the
district court, O'Meara waived a jury trial and agreed to stipulated facts. The State
does not argue that O'Meara's waiver of a jury trial encompassed facts found at
sentencing, and the Minnesota Court of Appeals's decision under review did not
consider such argument. Therefore, we will not address it.

                                          -6-
Griffith line of cases, the closest relevant precedent, was not objectively
unreasonable." Furthermore, the magistrate judge concluded that the court reasonably
applied Teague in holding that Blakely did not retroactively apply to O'Meara's final
judgment of conviction. The district court adopted the magistrate judge's report and
recommendation.

      Thereafter, we issued a certificate of appealability on the following question:

      Whether the decision of the Minnesota Court of Appeals that the rule of
      Blakely v. Washington, 

(2004), did not apply to the
      determination of Mr. O'Meara's sentence was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States.

                                    II. Discussion
       O'Meara argues that the Minnesota Court of Appeals's decision that Blakely did
not apply to his sentence was contrary to established precedent of the Supreme Court.
According to O'Meara, because he was awaiting resentencing in 2004 when the Court
decided Blakely, his conviction and sentence were not "final," meaning that Blakely
applies to him.6 Additionally, O'Meara argues that his conviction was no longer "final"
after the Minnesota Supreme Court's decision in May 2004 because his original
sentence was no longer in existence.

       In response, the State asserts that the Minnesota Court of Appeals correctly
applied Griffith—a decision of the Supreme Court—in determining that O'Meara's
conviction became final before Blakely was decided. According to the State, Griffith
stated that a judgment of conviction becomes final upon the conclusion of direct


      6
       O'Meara acknowledges in his brief that he is not arguing that, even if his
sentence was final when Blakely was decided, Blakely announced a watershed rule
that should apply retroactively to his case.

                                         -7-
review and held that new rules of federal criminal procedure apply retroactively to all
cases pending on direct review or are not yet final. As a result, the State concludes that
because Blakely was decided in 2004—long after O'Meara's direct-appeal period
expired in August 2000—Blakely does not apply retroactively to O'Meara.

      We must determine "whether the state supreme court acted contrary to or
unreasonably applied clearly established federal law when it ruled against [O'Meara]."
Losh v. Fabian, 

, 823 (8th Cir. 2010) (citing Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1)). We may grant
O'Meara's habeas petition

      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, 

, 412–13, 

, 

(2000). [His] 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. 

413, 

. Only rulings in
      Supreme Court decisions issued before the state court acts are considered
      clearly established federal law, 

, 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, 

, 784 (8th Cir. 2006).

the Supreme Court decided "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." 

(citing 

). The Court in Blakely "clarified that 'the
[relevant] 'statutory maximum' . . . is the maximum sentence a judge may impose

                                           -8-
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.'" 

(quoting 

). We have previously
recognized that "[t]he 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." 

States v. Stoltz, 149 F. App'x. 567, 569 (8th
Cir. 2005); United States v. Price, 

, 849 (10th Cir. 2005); Schardt v.
Payne, 

, 1038 (9th Cir. 2005); United States v. Phillips, 

, 628 (4th Cir. 2004); In re Dean, 

, 1290 (11th Cir. 2004)).
According to this court, "[w]hen 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." 

and citations omitted).

       In Losh, we determined that the Minnesota Supreme Court "correctly concluded
that the retroactivity issue is governed by the Supreme Court decisions in Schriro v.
Summerlin, 

, 

, 

(2004), Teague v. Lane,

, 

, 

(1989), and Griffith v. Kentucky,

, 

, 

(1987)." 

precedents, the
Court "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.'" 

v.
Bohlen, 

, 391 (1994)) (emphasis added); see also 

n.6 ("By 'final,' we mean a case in which a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a petition for certiorari
elapsed or a petition for certiorari finally denied.") (emphasis added).




                                           -9-
     Losh controls. Here, the Minnesota Court of Appeals, relying on the Minnesota
Supreme Court's decision in O'Meara II, concluded that

      [O'Meara's] case was final before Blakely was decided. In O'Meara [II],
      the Minnesota Supreme Court determined that [O'Meara's] case became
      final on August 6, 2000, almost four years prior to Blakely. [679 N.W.2d
      at 340]. "[A] case is pending until such time as the availability of direct
      appeal has been exhausted, the time for a petition for certiorari has
      elapsed or a petition for certiorari with the Supreme Court has been filed
      and finally denied." 

The court found that [O'Meara's] appeal
      period expired on August 6, 2000 because he failed to perfect a direct
      appeal. 

.

O'Meara III, 

, at *4. In turn, just as in Losh, the Minnesota
Supreme Court in O'Meara II "reasonably applied" the precedent of Teague and
Griffith in determining that O'Meara's conviction became final on August 6,
2000—the date his period of direct appeal 

–24 (stating that
"[t]he 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)").

       As in Losh, the Minnesota Court of Appeals "concluded that [O'Meara] was not
entitled to appeal [his] sentence on the basis of Blakely because the date on which
[his] period of direct appeal expired and [his] conviction and sentence became final
([August 6, 2000]) preceded the date on which Blakely was decided (June 24, 

. We explained in Losh that "[t]he Supreme Court has yet to consider
whether Blakely applies retroactively to cases that became final before it was decided"
and that, as a result, where "no clearly established federal law therefore exists,
§ 2254(d)(1) affords no grounds for disturbing the supreme court's conclusion." 

we reject O'Meara's argument that his conviction was no longer
"final" after the Minnesota Supreme Court's decision in May 2004 because his original
sentence was no longer in existence. The Minnesota Court of Appeals ruled that
O'Meara's "case was final" on August 6, 2000, because O'Meara was not being
resentenced under a different statute in 2004, but rather was just "having the same
statutory sentence reduced." O'Meara III, 

, at *3. This was not an
unreasonable application of clearly established federal law because, as the district
court, adopting the magistrate judge's report and recommendation, recognized, "no
Supreme Court case directly addresses whether resentencing after collateral review
renders a previously final conviction pending for the purpose of applying a new rule
of federal constitutional criminal procedure." See also 

("Neither
the Supreme Court nor any federal court of appeals has considered whether state law
governs the characterization of a type of state appellate review for purposes of
retroactivity analysis.").

      Therefore, we hold that the Minnesota Court of Appeals's decision that
O'Meara's conviction became final before Blakely was decided is not contrary to, or
an unreasonable application of, federal law.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                         -11-