Joseph Featherkile v. Wanza Jackson , 451 F. App'x 566 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0885n.06
FILED
No. 10-3331 Dec 27, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOSEPH FEATHERKILE, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
WANZA JACKSON, Warden, ) OPINION
)
Respondent-Appellee. )
BEFORE: COLE, MCKEAGUE, and GRIFFIN, Circuit Judges.
PER CURIAM. Petitioner-Appellant Joseph Featherkile was convicted by a Hamilton
County, Ohio, jury on November 22, 1999, on four counts of gross sexual imposition in violation
of Ohio Revised Code § 2907.05(A)(4). The trial court sentenced Featherkile to two years’
imprisonment for the first count and five years for each of the three remaining counts, all to be
served consecutively, for a total of seventeen years. Featherkile was resentenced in 2006 under the
new, discretionary sentencing regime ushered in by the Ohio Supreme Court’s application of United
States v. Booker, 543 U.S. 220 (2005), to the Ohio’s sentencing structure. See State v. Foster, 845
N.E.2d 470 (Ohio 2006). At his 2006 resentencing, the court imposed the same term of
imprisonment–seventeen years. After exhausting his remedies before the Ohio appellate courts,
Featherkile filed a petition for a writ of habeas corpus, arguing that his resentencing based on the
new discretionary sentencing procedure violates the ex post facto and due process clauses of the
No. 10-3331
Featherkile v. Jackson
Fourteenth Amendment to the United States Constitution. In particular, Featherkile argues that his
new sentence imposes a new and retroactive punishment because it is greater than the “presumptive
minimum” sentence applicable prior to Foster. The district court denied the petition.
Featherkile’s claim is the same as that advanced by the petitioner in our recent case of
Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). As we explained in Ruhlman,
resentencings pursuant to Ohio’s discretionary sentencing scheme established by Foster, even when
it results in a sentence greater than the pre-Foster presumptive minimum sentence, do not violate ex
post facto or other due process clause principles. Ruhlman, No. 09-4523, slip op. at 6-12. Thus, for
the reasons stated in Ruhlman v. Brunsman, we AFFIRM the denial of the petition by the district
court for a writ of habeas corpus.
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