Dante Person v. Michael Sheets , 527 F. App'x 419 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0541n.06
No. 12-3996
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 03, 2013
DANTE PERSON, DEBORAH S. HUNT, Clerk
Petitioner-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MICHAEL SHEETS, SOUTHERN DISTRICT OF OHIO
Respondent-Appellant.
/
BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.
CLAY, Circuit Judge. Petitioner, an inmate in Ohio, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254(d)(1). The district court granted that petition in part on the
basis of the Double Jeopardy Clause, U.S. Const. amend. V, because it found that the State of Ohio
had sentenced Petitioner twice for crimes that the state court was constitutionally required to merge
for the purpose of sentencing. The district court directed the State of Ohio to re-sentence Petitioner.
The state appeals, arguing that the district court erred in its interpretation of the Double Jeopardy
Clause under governing Ohio law. For the following reasons, we REVERSE the district court’s
decision to grant the writ.
No. 12-3996
BACKGROUND
A. Facts
The convictions leading to the instant petition stem from an incident that took place in early
2006. As the Ohio Court of Appeals described the incident:1
Cincinnati Police Officers Kristina Holtmann and Laureen Smith were on routine
patrol in the early morning hours of January 11, 2006. The officers passed a vehicle
with windows that appeared to be too darkly tinted. Additionally, the rear license
plate was not illuminated. The officers activated their overhead lights and made a
U-turn. The vehicle stopped and backed into a driveway before the police unit
reached it. Officer Smith approached the driver’s side and Officer Holtmann
approached the passenger side. The driver of the car, Bryan Caulton, had an
outstanding warrant. Officer Smith arrested Caulton and placed him in the backseat
of the police car.
While Officer Smith was dealing with Caulton, Officer Holtmann asked Person, who
was in the front passenger seat, for identification. He did not have identification, but
gave Officer Holtmann his name and date of birth. Based on previous encounters
with Person, Officer Holtmann believed that he had given a false last name and asked
him to exit from the vehicle. After he emerged, Officer Holtmann ordered him to
place his hands behind his back. Person turned, produced a handgun, and shot Officer
Holtmann in the face.
Person immediately fled. As he was running, Officer Holtmann saw him turn and
point his gun at her. At this point, she and Officer Smith returned fire. One of the
shots struck Person in the leg, but he was able to continue fleeing.
As officers were establishing the crime scene, a witness came forward and told police
that Person was in the basement of a nearby residence. A perimeter was established
around the house until a S.W.A.T. unit could arrive. Police then began a systematic
search of the house, discovering Person in the basement. After Person was taken into
1
Under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” Petitioner has not presented evidence that
demonstrates any error in the Ohio court’s decision and accordingly, these facts are presumed
correct. See Thompson v. Bell, 580 F.3d 423, 434 (6th Cir. 2009).
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custody, he was asked what he had done with the handgun. He told an officer to “go
fuck [himself].”
(R. 10, Report and Recommendation, Mar. 30, 2011, at 2.) (quoting State v. Person, 881 N.E.2d 924,
926–27 (Ohio Ct. App. 2007)).
B. Procedural History
Petitioner was indicted on January 20, 2006. The nine-count indictment charged Petitioner
with two counts of attempted murder with a firearm specification, Ohio Rev. Code § 2923.02(A),
three counts of felonious assault with firearm specifications in violation of Ohio Rev. Code §
2903.11(A)(1)–(2), and one count each of carrying a concealed weapon in violation of Ohio Rev.
Code § 2923.12(A), carrying a weapon while under a disability in violation of Ohio Rev. Code §
2923.13(A)(3), possession of cocaine with a firearm specification in violation of Ohio Rev. Code
§ 2925.11(A), and burglary in violation of Ohio Rev. Code § 2911.12(A)(2). He was tried by jury
in Ohio state court on all charges except the weapons-under-disability charge, which was tried by
the bench. After the state presented its case, the trial court acquitted Petitioner on the burglary
charge, as well as on one of the attempted murder charges. (Id.). After the trial, the jury convicted
Petitioner on the two counts of felonious assault with a firearm specification pursuant to Ohio Rev.
Code. § 2903.11(A)(1) & (2), as well as the charges of carrying a concealed weapon and having a
weapon while under a disability. Petitioner was sentenced on July 13, 2006. At sentencing, the
court found that the two felonious assault sentences should run consecutively, and sentenced
Petitioner to a term of thirty-three years and six months imprisonment, based on two consecutive ten-
year terms for the felonious assaults, five years for the weapon while under a disability charge,
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eighteen months for the concealed weapon charge, and seven years for the firearm specifications,
which were merged at sentencing.
Petitioner appealed to the Ohio Court of Appeals, where he raised the claim that “[t]he trial
court erred by imposing consecutive sentences on the felonious assault.” (Report and
Recommendation at 3.) The court denied Petitioner’s appeal, over the dissent of Judge Painter. The
court found that under State v. Payne, 2007 WL 1859302 (Ohio Ct. App. Dec. 21, 2007), “felonious
assault in violation of R.C. 2903.11(A)(1) and felonious assault in violation of R.C. 2903.11(A)(2)
are not allied offenses. Based upon our decision in Payne, we overrule [Defendant’s] third
assignment of error.” Person, 881 N.E.2d 924, 929 (Ohio Ct. App. 2007). Judge Painter dissented,
writing that: “[a]s I said when dissenting in Payne, ‘One gun, one shot, one felonious assault.’
Nothing has changed since then; in fact, nothing has changed since the Double Jeopardy Clauses of
the Ohio and the United States Constitutions became effective, except for misguided and bizarre
Ohio court decisions that defy logic, law, and common sense.” Id. at 932. (internal citation omitted).
While Petitioner did not timely file his appeal with the Ohio Supreme Court, he was
permitted to file an appeal, in which he raised the claim that the sentence was improper because the
assault convictions were allied offenses that should have been merged for the purpose of sentencing.
The Ohio Supreme Court affirmed the conviction with a summary order, which stated that is was
affirming the court of appeals “on the authority of State v. Brown, 895 N.E.2d 149 (Ohio 2008).”
State v. Person, 898 N.E.2d 961, 961 (Ohio 2008). Petitioner’s motion for reconsideration was
denied without opinion.
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Petitioner then filed in federal court, asking the district court to grant him a writ of habeas
corpus. He raised three grounds for the writ: that his due process rights under the Fifth and
Fourteenth Amendments had been violated because the trial court sentenced him twice for the same
offense; that his equal protection rights had been violated because he was sentenced twice for the
same offense, and that his right to a fair trial under the Sixth Amendment had been violated because
the trial court had permitted the state to proceed despite discovery violations. The district court
referred the case to Magistrate Judge Karen Litkovitz for a report and recommendation. The
magistrate recommended that the district court deny the petition on all grounds except one. The
magistrate recommended granting the petition on the basis of the Double Jeopardy Clause, finding
that Petitioner had been sentenced twice for the same offense under Ohio merger law. The district
court adopted the report and recommendation in its entirety. The state of Ohio now appeals, asking
this Court to overturn the district court’s grant of the writ.
ANALYSIS
A. Standard of Review
On appeal of a grant of a writ of habeas corpus, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.” Hanna v. Ishee, 694 F.3d 596, 605 (6th
Cir. 2012) (citing Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009)). The district court’s findings
of fact are clearly erroneous when “we are left with the definite and firm conviction that a mistake
has been committed.” United States v. Canipe, 569 F.3d 597, 600 (6th Cir. 2009) (citing United
States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)).
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B. The AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state
court unless the state adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court
of the United States; or
(2) 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). A federal court may not issue the writ “simply because it concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000). “[C]learly established federal law, as determined by the Supreme Court
of the United States” refers to the holdings, rather than dicta, of the decisions of the Supreme Court.
Howes v. Fields, --- U.S. ---, 132 S. Ct 1181, 1187 (2012) (quoting Williams, 529 U.S. at 362).
A decision is “contrary to” clearly established federal law where “the state court arrives at
a conclusion opposite to that reached by this Court on a question of law . . . [or] confronts facts that
are materially indistinguishable from a relevant Supreme Court precedent and arrives at a [the
opposite] result.” Williams v. Taylor, 529 U.S. at 405. Furthermore, an unreasonable application
must be distinguished from an incorrect application. Harrington v. Richter, --- U.S. ---, 131 S. Ct.
770, 785 (2011) (quoting Williams at 410). A state court decision which is merely incorrect, rather
than unreasonable, is still entitled to deference by a federal court in a habeas proceeding. Id. As a
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result, the more general the rule, the greater the leeway accorded to a state court’s decision under
federal habeas review. Id. at 786.
In addition, federal courts have limited authority to review a state court’s interpretations of
its own state’s laws; where the highest court in a state has interpreted that state’s statute, a federal
court must defer to the state court’s interpretation. Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013).
“Thus, for purposes of double jeopardy analysis, once a state court has determined that the state
legislature intended cumulative punishments, a federal habeas court must defer to that
determination.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989); accord Volpe, 708 F.3d at 697.
The United States Supreme Court has clarified that for the purposes of habeas, the relevant
“temporal cutoff” for whether the law is clearly established is “when direct state appeals have been
exhausted and a petition for writ of certiorari from [the United States Supreme Court] has become
time barred or has been disposed of.”2 Greene v. Fisher, --- U.S. ---, 132 S. Ct. 38, 44 (2011).
C. Double Jeopardy3
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states
that “[n]o person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb . . . .” The clause was incorporated against the states through the enactment of the Fourteenth
2
The Supreme Court of Ohio entered its judgment on December 9, 2008. A “petition for a
writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last
resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the
judgment.” Sup. Ct. R. 13. Accordingly, the judgment became final for the purposes of habeas
review on March 9, 2009.
3
The district court also addressed the question of whether Petitioner’s claim under the Double
Jeopardy Clause was fairly presented to the state court, and concluded that it was. The state does
not pursue this argument before this Court.
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Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). It is clearly established law that a
defendant may not be subject to multiple punishments unless the state legislature intended to so
punish. Missouri v. Hunter, 459 U.S. 359, 367–68 (1983). In contrast to most habeas claims, which
are based entirely on federal constitutional rights, a claim under the Double Jeopardy Clause requires
analysis of state law; because the state legislature has the authority to define and punish crimes, the
definition of multiple punishments is dependent on the legislative intent of the state government.
Volpe, 708 F.3d at 697. Ohio has enacted a statute regarding multiple punishments. It states,
“[w]here the same conduct by defendant can be construed to constitute two or more allied offenses
of similar import, the indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.” Ohio. Rev. Code § 2941.25(A).
There is a long history of interpretation of this statute by the Ohio Supreme Court. In State
v. Rance, 710 N.E.2d 699 (Ohio 1999), the Ohio Supreme Court found that a defendant could be
sentenced separately for convictions for involuntary manslaughter and aggravated robbery, without
offending double-jeopardy principles. Id. at 702. In that case, the Ohio Supreme Court stated that
“[t]he applicable test for deciding [whether two crimes are of similar import] is as follows: If the
elements of the crimes correspond to such a degree that the commission of one crime will result in
the commission of the other, the crimes are allied offenses of similar import.” Id. at 703 (internal
quotation marks and citations omitted). If the crimes are allied offenses, then a court must proceed
to the second step, and review “the defendant’s conduct . . . to determine whether the defendant can
be convicted of both offenses. If the court finds either that the crimes were committed separately
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or that there was a separate animus for each crime, the defendant may be convicted of both offenses.”
State v. Blankenship, 526 N.E.2d 816, 817 (Ohio 1988) (emphasis in original).
In State v. Cabrales, 886 N.E.2d 181 (Ohio 2008), the Ohio Supreme Court revisited the
Rance test. In that case, the court found that “[c]ourts have struggled applying Rance’s abstract
elements-comparison test.” Id. at 185. It held that Rance had been “misinterpreted,” and that
“Rance [does not] mandate that the elements of compared offenses must exactly align for the
offenses to be allied offenses of similar import under R.C. 2941.25(A).” Id. at 186. The court went
on to find that in the abstract, the elements of the defendant’s two convictions for possession of
controlled substances and trafficking in controlled substances were allied offenses, and that the
defendant was motivated by “a single animus: to sell [the drugs].” Id. at 188. Accordingly, it found
that he could not be convicted of both offenses.
The Ohio court further clarified its definition of animus for the purposes of double jeopardy
in State v. Brown, 895 N.E.2d 149 (Ohio 2008), its most recent interpretation of this statute. In that
case, the defendant had gotten into an argument with her boyfriend. The argument concluded when
the defendant stabbed her boyfriend with a serrated steak knife. Brown, 895 N.E.2d at 151. She was
then charged with two counts of felonious assault and one count of domestic violence, and the jury
was additionally instructed on the included offense of aggravated assault. The defendant was
ultimately acquitted on the felonious assault charges, but convicted of two counts of aggravated
assault under alternate theories in Ohio Revised Code §§ 2903.12(A)(1) and (A)(2). Id. at 151–52.
On appeal, the Ohio Supreme Court found that the defendant could not be convicted of both charges
of aggravated assault. While it was permissible for prosecutors to present alternate theories of
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aggravated assault under Ohio Rev. Code § 2903.12(A)(1) & (A)(2), there had only been one act,
and accordingly, the two offenses had to have been committed with the same animus.
D. Petitioner’s Claim Under the Double Jeopardy Clause
Turning to the instant case, it was not unreasonable for the Ohio court to find that Petitioner’s
two convictions could have been separate offenses under the Ohio Revised Code. Petitioner was
convicted of two counts of felonious assault. Under Ohio statutory law, “[n]o person shall
knowingly do either of the following: (1) Cause serious physical harm to another or to another's
unborn; (2) Cause or attempt to cause physical harm to another or to another's unborn by means of
a deadly weapon or dangerous ordnance.” Ohio Rev. Code § 2903.11(A)(1)–(2). As the Ohio court
found in Brown, the subdivisions “set forth two means of committing the same offense—causing
serious physical harm to another, or causing or attempting to cause physical harm by means of a
deadly weapon . . . .” Brown, 895 N.E.2d at 156.4 Therefore the two means are allied offenses; they
represent the same offense, and show the intent of the legislature to protect people from physical
harm. Id. But that only shields a defendant from punishment on double jeopardy grounds if his
conduct shows that he committed the two acts with a single animus.
In this case, Petitioner shot Officer Holtmann in the face. As he ran away, he pointed his gun
at Officer Holtmann a second time. Under Ohio law, pointing a gun—if there is evidence of an
actor’s intention—can constitute felonious assault. See State v. Seiber, 564 N.E.2d 408, 420–21
4
In Brown, the court interpreted Ohio’s aggravated assault statute, Ohio Rev. Code
§ 2903.12(A)(1)–(2), as opposed to the felonious assault statute at issue in this case, id.
§ 2903.11(A)(1)–(2), but the particular subdivisions pertinent to this point are identical under both
statutes.
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(Ohio 1990); State v. Brooks, 542 N.E.2d 636, 642 (Ohio 1989) (“The act of pointing a deadly
weapon at another, without additional evidence regarding the actor’s intention, is insufficient
evidence to convict a defendant of the offense of ‘felonious assault’ as defined by R.C.
2903.11(A)(2)”); State v. Busa, 1990 WL 40280 at *2 (Ohio Ct. App. Apr. 5, 1990). And intention
can be inferred from acts that themselves constitute crimes, without requiring merger of the two
offenses. Seiber, 564 N.E.2d at 421. Pointing a weapon combined with implicit threats has been
held to constitute assault. See, e.g., State v. Green, 569 N.E.2d 1038, 1041 (Ohio 1991) (holding that
jury could find intent where “defendant held a rifle aimed at Mongold's head. The rifle was loaded,
the hammer was cocked . . . Moreover, at the instant defendant positioned his weapon in the
direction of the officers, he shouted, ‘If you don’t have a warrant get the fuck out of my house.’”).
Petitioner had already fired his gun, hitting a police officer in the face. He had turned to flee,
and while doing so, looked back and pointed his gun at the officer again. Each of these facts are
suggestive of his intent to fire again; accordingly, there was sufficient evidence of intent for a court
to find that pointing his gun was itself a felonious assault. The court could have found that his first
shot was intended to injure the officer, and that his second was part of an intent to flee, or that his
first shot was motivated by an attempt to escape, while the second attempt to shoot was based on
anger at the officers having fired on him. Therefore it was not an unreasonable application of Ohio
law, as established in the Brown decision, to find that Petitioner acted with a separate animus to
support each of the two counts of felonious assault, because there is no clearly established law that
states that the two acts necessarily had a single animus.
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The magistrate judge identified a significant problem with the decisions of the Ohio courts:
while the court of appeals decided the case on the basis of Payne, State v. Person, 881 N.E.2d 924,
929 (Ohio Ct. App. 2007), the Supreme Court of Ohio affirmed the case “on the authority of State
v. Brown.” State v. Person, 120 Ohio St. 3d 323, 323 (2008). But the Brown decision overturned
the prior holding in Payne that the offenses under Ohio Rev. Code 2903.11(A)(1) & (2) are not allied
offenses. See Brown, 895 N.E.2d at 150–51. It seems inconsistent for the Ohio Supreme Court to
uphold the application of Ohio’s consecutive sentencing law on the basis of Brown, when the Brown
decision explicitly reversed the Payne decision on this point of law. Thus, the magistrate judge
concluded that the Ohio Supreme Court’s decision was an objectively unreasonable application of
federal law because it incorrectly applied its own precedent on state legislative intent. While we
agree with the magistrate judge that the decision of the Ohio Supreme Court is worrisome, “[o]ur
task is not to determine whether the state court reached the correct outcome, but rather to determine
whether the court’s application of clearly established federal law is objectively unreasonable—‘a
substantially higher threshold.’” Hereford v. Warren, 536 F.3d 523, 527 (6th Cir. 2008) (quoting
Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007)).
Accordingly, while we find the reasoning of the Ohio court troubling, it does not give rise
to a grant of habeas relief. Under the AEDPA this Court reviews the last reasoned state court
decision. The last reasoned state court decision was the Supreme Court of Ohio’s decision in State
v. Person, 898 N.E.2d 961, 961 (Ohio 2008). See Cullen v. Pinholster, 563 U.S. ---, 131 S. Ct. 1388,
1402 (2011) (“Section 2254(d) applies even where there has been a summary denial.”). That
decision affirmed the judgment of the Ohio Court of Appeals, but substituted its own reasoning.
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Even when a state court does not provide analysis, this Court must show significant respect to state
court decisions:
Even in the case of a summary denial, when the state court has not fully explained
the rationale for its decision, the reviewing “habeas court must determine what
arguments or theories could have supported the state court's decision; and then it
must ask whether it is possible [that] fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior [Supreme Court]
decision.”
Gagne v. Booker, 680 F.3d 493, 514 (6th Cir. 2012) (en banc) (quoting Pinholster, 131 S. Ct. at
1402) (emphasis added).
In this case, the apparent contradiction between the intermediate appellate court’s decision
that the two offenses are not allied and the Ohio Supreme Court’s decision based on Brown can be
reconciled by reference to the second part of the Brown analysis: was there a separate animus behind
both crimes? While the Brown decision reversed Payne on the question of whether Ohio Rev. Code
§ 2903.11(A)(1) & (2) are allied offenses, it did not find that the two crimes must merge in all cases.
Because the court in Payne found that the two offenses were not allied, it never reached the question
of whether one could commit the crimes with a separate animus. And there is no clearly established
law suggesting that these two acts are necessarily committed with a single animus. If anything, the
dissenting opinion in this case’s decision before the Ohio Court of Appeals, which criticized a part
of the Payne decision that Brown did not overrule, seems to suggest quite the opposite: that it is
clearly established that one shot and one victim can still lead to more than one conviction under Ohio
law. While this Court may find it easier to believe that the two acts were both driven by the same
desire to evade arrest (or harm Officer Holtmann), it was not so unreasonable as to give rise to a
grant of habeas for the state court to find that the two acts were sufficiently disconnected that the two
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crimes did not have to merge for the purposes of sentencing. Accordingly, the state court’s decision
was not contrary to nor an unreasonable application of clearly established law.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of a writ of habeas corpus,
and REMAND for further proceedings consistent with this opinion.
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