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Losh v. Fabian

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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 Shortly after her probation had been revoked, the United States Supreme Court decided in Blakely v. Washington, 542 U.S. 296 (2004), that an upward departure from the maximum statutory sentence is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.

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