Brett Ruhlman v. Timothy Brunsman
OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. David W. McKeague, Helene N. White (AUTHORING), Circuit Judges and Jack Zouhary, U.S. District Judge for the N. D. of OH.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0323p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TIMOTHY BRUNSMAN, Warden,
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 08-00163—Sandra S. Beckwith, District Judge.
Argued: April 29, 2011
Decided and Filed: December 23, 2011
Before: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*
ARGUED: Stephen P. Hardwick, OHIO PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Gene D. Park, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Stephen P. Hardwick, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Gene D. Park, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
Ruhlman v. Brunsman
HELENE N. WHITE, Circuit Judge. Brett Ruhlman appeals the district-court
order denying his petition for habeas corpus, challenging his Ohio state-court sentence
on ex-post-facto and due-process grounds. We AFFIRM.
On April 28, 2004, Ruhlman was indicted on one count of rape, a first-degree
felony under Ohio Revised Code (“O.R.C.”) § 2907.02(A)(1)(b), for acts committed
against an 11-year-old girl; a jury convicted him of the lesser-included offense of
attempted rape, a second-degree felony under O.R.C. §§ 2923.02/2907.02.
In Ohio, felonies of the second degree are subject to a presumption of
incarceration, O.R.C. § 2929.13(D)(1), and a prison term ranging from two to eight
years, id. § 2929.14(A)(2). At the time Ruhlman committed the instant offense and was
first sentenced in 2005, Ohio statutes provided for a rebuttable presumption in favor of
minimum sentences. Specifically, the law provided:
(B) . . . if the court . . . elects or is required to impose a prison term on the
offender, the court shall impose the shortest prison term authorized for
the offense . . . , unless one or more of the following applies:
(1) The offender was serving a prison term at the time of
the offense, or the offender previously had served a
(2) The court finds on the record that the shortest prison
term will demean the seriousness of the offender’s
conduct or will not adequately protect the public from
future crime by the offender or others.
(C) . . . the court . . . may impose the longest prison term authorized for
the offense . . . only upon offenders who committed the worst forms of
the offense, upon offenders who pose the greatest likelihood of
committing future crimes, upon certain major drug offenders . . . and
upon certain repeat violent offenders . . . .
Ruhlman v. Brunsman
Id. § 2929.14. Thus, under then-applicable law, an Ohio defendant convicted of a
second-degree felony faced a presumptive prison sentence of two years, unless the court
determined that a sentence of probation adequately satisfied the overriding purposes of
felony sentencing, id. § 2929.13(D)(2), or that § 2929.14(B) or (C) supported a sentence
above the shortest, two-year, term. In addition, trial courts were required in some
circumstances to explain on the record their reasons for imposing a particular sentence,1
including when imposing the maximum prison term allowed by § 2929.14(A) for a
single offense. § 2929.19(B)(2)(d). Correspondingly, appeals courts reviewing such
sentences were required to “review the record, including the findings underlying the
sentence or modification given by the sentencing court.” Id. § 2953.08(G)(2).
At Ruhlman’s first sentencing, the trial court made specific findings, including
that Ruhlman had served a prison term for a prior conviction, that he was a sexual
predator, and that he posed the greatest likelihood of recidivism. Based on these
findings, the court sentenced Ruhlman to serve eight years in prison. Ruhlman appealed,
arguing, inter alia, that the sentence violated his rights under the Sixth Amendment of
the United States Constitution, as construed by Blakely v. Washington, 542 U.S. 296
(2004). In Blakely, the Supreme Court held that courts cannot rely on judicial findings
of fact to impose a sentence greater than the statutory maximum allowed by a jury
verdict or by the defendant’s admissions. Id. at 303; see also Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). The Court also made clear that –
the “statutory maximum” for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant. In other words, the
relevant “statutory maximum” is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose
without any additional findings.
Under O.R.C. § 2929.19(B)(2), a sentencing court was required to explain on the record its
reasons for selecting a particular sentence if: (a) the court imposed a prison sentence for a felony of the
fourth or fifth degree; (b) the court did not impose a prison term for a felony of the first or second degree;
(c) the court imposed consecutive sentences under § 2929.14; (d) the court imposed the maximum prison
term allowed for a single offense by § 2929.14(A); or (e) the sentence was intended as punishment for two
or more offenses arising from a single incident and the court imposed the maximum sentence allowed for
the offense of the highest degree.
Ruhlman v. Brunsman
Blakely, 542 U.S. at 303-04 (internal citations omitted).
While Ruhlman’s appeal was pending, the Supreme Court of Ohio decided State
v. Foster, 109 Ohio St. 3d 1, 845 N.E.2d 470 (2006), which considered Blakely’s effect
on Ohio’s noncapital sentencing laws. As specifically relates to this case, Foster held
that O.R.C. § 2929.14(B) and (C) were unconstitutional because they provided for
increased sentences based on judicial factfinding. 845 N.E.2d at 494. Applying the
same remedy employed by the United States Supreme Court in United States v. Booker,
543 U.S. 220 (2005), the Ohio Supreme Court struck down and severed §§ 2929.14(B)(C) and 2929.19(B)(2) from the statute and applied its ruling to all criminal cases
pending on direct review. Foster, 845 N.E.2d at 498-99.
The Foster decision resulted in a sentencing system wherein “judicial factfinding is not required before a prison term may be imposed within the basic ranges of
[O.]R.C. [§] 2929.14(A) based upon a jury verdict or admission of the defendant.” Id.
at 498. As it applied to the severed sections, Foster also rendered moot § 2953.08(G)(2),
the provision requiring appellate courts to review the trial court’s factual findings on
appeal. Id.; State v. Kalish, 120 Ohio St. 3d 23, 25, 896 N.E.2d 124, 128 (2008). PostFoster, Ohio trial courts have full discretion to impose any sentence within the ranges
of § 2929.14(A), including the statutory maximum, without making specific findings of
fact or explaining their decisions on the record. See Kalish, 896 N.E.2d at 128; Foster,
845 N.E.2d at 498.
Consistent with Foster, Ruhlman’s case was remanded for resentencing. The
trial court held a new hearing and again sentenced Ruhlman to serve eight years. In
doing so, the court considered the sentencing factors of O.R.C. §§ 2929.11 and 12,2 but
Pursuant to O.R.C. § 2929.11(A), “[a] court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing[, i.e.,] to protect the public from future crime by
the offender and others and to punish the offender.” In imposing sentence, the court must consider “the
need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both.” Id. The court may also
consider other factors, such as whether the victim suffered serious physical, psychological, or economic
harm, whether the victim had a prior physical or mental condition that was exacerbated by the defendant’s
act, whether there were substantial grounds to mitigate the defendant’s conduct, and any other relevant
factors. See O.R.C. § 2929.12 (B)-(C).
Ruhlman v. Brunsman
made no finding of fact, other than that Ruhlman is a sexual predator, and did not
address the factors that had previously governed the decision to impose the statutory
maximum. Ruhlman appealed, arguing that his sentence violated the Ex Post Facto and
Due Process Clauses of the Ohio and United States Constitutions. The Ohio Court of
Appeals rejected this argument. After exhausting his state remedies, Ruhlman petitioned
for habeas corpus under 28 U.S.C. § 2254, asserting that by retroactively applying the
Foster decision to his sentencing, the Ohio courts violated the Ex Post Facto and Due
Process Clauses of the United States Constitution. The district court denied the petition,
but granted Ruhlman’s requests for a certificate of appealability and leave to appeal in
This Court reviews a district court’s decision to deny habeas relief de novo,
Sanborn v. Parker, 629 F.3d 554, 564 (6th Cir. 2010), and its factual findings for clear
error, Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008). Because Ruhlman filed
his habeas petition after the enactment of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, we review the
last reasoned state-court decision on the issue to determine whether that decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d). A state court’s
determination is contrary to clearly established federal law if “the state court arrives at
a conclusion opposite to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
A state-court decision is an unreasonable application of clearly established federal law
“if the state court identifies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413.
Ruhlman v. Brunsman
Ex Post Facto Claim
The Ex Post Facto Clause provides that “no State shall . . . pass any . . . ex post
facto Law.” U.S. Const. art. I, § 10, cl. 1. As interpreted by the Supreme Court, the
Clause prohibits the legislative enactment of any law that, inter alia, “changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Calder v. Bull, 3
U.S. (3 Dall.) 386, 390 (1798) (seriatim opinion of Chase, J.)). It is well established that
the Ex Post Facto Clause “does not of its own force apply to the Judicial Branch of
government.” Id. (quoting Marks v. United States, 430 U.S. 188, 191 (1977)). For this
reason alone, Ruhlman’s Ex Post Facto Clause challenge fails. See Webb v. Mitchell,
586 F.3d 383, 392 (6th Cir. 2009).
Moreover, the Ex Post Facto clause does not apply to procedural changes. See
Dobbert v. Florida, 432 U.S. 282, 293 (1977) (“Even though it may work to the
disadvantage of a defendant, a procedural change is not ex post facto.”). To implicate
the Ex Post Facto Clause, a change must affect “substantial personal rights,” not just
“modes of procedure which do not affect matters of substance.” Id. (quotation marks
and citation omitted). Foster did not alter the nature of the conduct for which Ruhlman
was convicted nor the range of punishment he faced under O.R.C. § 2929.14(A)(2).
Due Process Claim
The Due Process Clause provides a means by which to challenge a judicial
decision on ex-post-facto grounds. The Supreme Court has recognized that “limitations
on ex post facto judicial decisionmaking are inherent in the notion of due process.”
Rogers, 532 U.S. at 456. In Bouie v. City of Columbia, the Court held that “[i]f a judicial
construction of a criminal statute is unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue, it must not be given retroactive
effect.” 378 U.S. 347, 354 (1964) (quotation marks and citation omitted). Bouie’s
expansive language caused many courts, including this one, to conclude that the Ex Post
Facto and Due Process Clauses were co-extensive. See, e.g., Gall v. Parker, 231 F.3d
Ruhlman v. Brunsman
265, 305 (6th Cir. 2000). Subsequently, the Supreme Court clarified that Bouie was
based on “core due process concepts of notice, foreseeability, and, in particular, the right
to fair warning as those concepts bear on the constitutionality of attaching criminal
penalties to what previously had been innocent conduct.” Rogers, 532 U.S. at 459; see
also United States v. Barton, 455 F.3d 649, 654 (6th Cir. 2006) (“[W]hen addressing ex
post facto-type due process concerns, questions of notice, foreseeability, and fair
warning are paramount.”). Thus, when examining whether a judicial interpretation of
criminal law (either statutory or common-law based) violates these concerns, the
relevant consideration is whether that decision is “unexpected and indefensible by
reference to the law which had been expressed prior to the conduct in issue.” Rogers,
532 U.S. at 462 (internal quotation marks omitted); Barton, 455 F.3d at 653.
Ruhlman argues that Foster unexpectedly and indefensibly transformed the
elements of his offense into mere sentencing factors. It is true that reclassifying the
elements of an offense into sentencing factors can raise due-process concerns. See
Blakely, 542 U.S. at 302 n.6 (noting that the Constitution limits a legislature’s ability to
reclassify the elements of a crime as sentencing factors); Ring v. Arizona, 536 U.S. 584,
602 (2002) (“If a State makes an increase in a defendant’s authorized punishment
contingent on the finding of a fact, that fact – no matter how the State labels it – must
be found by a jury beyond a reasonable doubt.”); id. at 605 (“[T]he characterization of
a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative of the
question ‘who decides,’ judge or jury.”).
Ruhlman argues that under Ohio’s original sentencing scheme, above-minimum
sentences were reserved for “aggravated” crimes and were contingent upon specific
findings of fact. Indeed, before Foster revised Ohio’s sentencing law, trial courts could
not impose maximum sentences (or any sentence above the presumptive minimum)
without finding certain facts by a preponderance of the evidence.
§ 2929.14(B)-(C). According to Ruhlman, these facts were actually statutory elements
of an aggravated offense. Subsequent to Foster, however, trial courts may impose any
sentence within the statutory range without any specific finding of fact. Ruhlman argues
Ruhlman v. Brunsman
that Foster transformed the elements that were a prerequisite for above-minimum
sentences into sentencing factors that courts can consider at their discretion and that, by
retroactively applying Foster to this case, the trial court violated his due-process rights.
We disagree and conclude that Ruhlman’s due-process rights were not violated.
Foster did not alter the applicable sentencing range for attempted rape, which has
consistently been two to eight years. See O.R.C. §§ 2923.02, 2907.02, 2929.14(A)(2).
Nor did it alter the elements of the substantive offense of attempted rape. Further, when
Ruhlman committed the offense, he was subject to a sentence in excess of two years by
virtue of the fact that he had served a prior prison term. See id. § 2929.14(B)(1). In
addition, at the time he committed the offense, Ruhlman was on notice that he was
subject to a longer sentence contingent upon a trial-court finding that a minimum
sentence would demean the seriousness of his conduct or would not adequately protect
the public from future crimes, O.R.C. § 2929.14(B)(2), and a maximum eight-year
sentence if the sentencing court found him to be a sexual predator who posed the greatest
likelihood of recidivism. See id. § 2929.14(C). Therefore, pre-Foster, Ruhlman was on
notice that he could receive an eight-year sentence for his actions if the court were to
make certain findings. The court made these findings at Ruhlman’s first sentencing and
imposed the maximum sentence. The fact that the court imposed that very sentence
post-Foster was neither “unexpected [nor] indefensible by reference to the law” that
applied when Ruhlman committed his offense. Bouie, 378 U.S. at 354 (citation omitted).
The Ohio Supreme Court’s determination that the relevant portions of Ohio’s
statutory sentencing scheme violated Blakely and its decision to sever those portions
does not in and of itself implicate ex-post-facto-type due-process rights. The court
simply acknowledged that if a fact is necessary to support a particular sentence, that fact
must be found by the jury, rather than a judge. The court remedied the problem by
following Booker and severing and striking the provisions, with the result that any
sentence within the range specified by statute for the offense could be imposed by the
court if consistent with the remaining sentencing criteria. Defendants committing crimes
before Foster cannot claim that they have an ex-post-facto-type due-process right to have
Ruhlman v. Brunsman
sentencing elements found by a jury, because the unconstitutionality of the sentencing
scheme does not negate its existence.
Dobbert, supra, is instructive. Dobbert involved a defendant who committed
murder a few months before Furman v. Georgia, 408 U.S. 238 (1972), invalidated a
number of state capital-punishment statutes. In response to Furman, Florida enacted a
new death-penalty law that complied with the Supreme Court’s directives; the defendant
was convicted and sentenced to death under this new statute. Dobbert, 432 U.S. at 28889.
Since Furman had rendered Florida’s earlier capital-punishment statute
unconstitutional, the defendant argued that there was no death penalty “in effect” in
Florida when he committed the murder and that his conviction and sentence under the
new law violated the Ex Post Facto Clause. Id. at 297. The Supreme Court rejected this
claim as “sophistic,” “highly technical,” and inconsistent with the Court’s statement in
Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940):
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law, that it was
inoperative, conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. . . . It is quite clear,
however, that such broad statements as to the effect of a determination
of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact
and may have consequences which cannot justly be ignored.
Dobbert, 432 U.S. at 297-98 (internal citations omitted). The Court concluded:
Here the existence of the statute served as an “operative fact” to warn the
petitioner of the penalty which Florida would seek to impose on him if
he were convicted of first-degree murder. This was sufficient
compliance with the ex post fact provision of the United States
Id. at 298. As in Dobbert, the statute in effect at the time Ruhlman committed the instant
offense “served as an ‘operative fact’ to warn” Ruhlman that certain factors would
render him subject to a greater sentence.
Ruhlman v. Brunsman
Ruhlman also takes issue with the fact that Foster discarded Ohio’s statutory
presumption in favor of minimum sentences. Before Foster, absent the necessary
findings of fact, courts were required to impose “the shortest prison term authorized” for
a given offense. Ruhlman argues that by severing O.R.C. § 2929.14(B)-(C), Foster
eliminated the presumption that the proper sentence for his second-degree felony would
be two years, see § 2929.14(A)(2), and replaced it with a presumption that eight years
is just as appropriate, thereby violating his due-process rights.
Ruhlman’s argument ignores that, notwithstanding the statutory presumption in
favor of minimum sentences, he was always subject to a longer prison term based on his
having previously served a prison term,3 and the seriousness of his crime, as determined
by the trial court. In Miller v. Florida, 482 U.S. 423, 425-26 (1987), which Ruhlman
cites for support, Florida had a sentencing scheme that attributed a presumptive
sentencing range to each offender. “Within the recommended range, the sentencing
judge had discretion to fix the sentence without the requirement of a written explanation.
If the sentencing judge wished to depart from the guideline range, however, the judge
had to give clear and convincing reasons in writing for doing so.” Id. at 426 (quotation
marks and citation omitted). Only sentences falling outside the guidelines’ range were
subject to appellate review. Id. When the defendant was convicted, his presumptive
sentence was 3 1/2 – 4 1/2 years, but before he was sentenced, the state issued revised
guidelines that increased his sentencing range to 5 1/2 – 7 years. Id. at 425-27. The
defendant received seven years under the revised guidelines. Id. at 428. The Supreme
Court struck down the sentence on ex-post-facto grounds, stating:
To impose a 7-year sentence under the old guidelines, the sentencing
judge would have to depart from the presumptive sentence range of 3 1/2
to 4 1/2 years. As a result, the sentencing judge would have to provide
clear and convincing reasons in writing for the departure, on facts proved
beyond a reasonable doubt, and his determination would be reviewable
on appeal. By contrast, because a 7-year sentence is within the
presumptive range under the revised law, the trial judge did not have to
The Supreme Court has made clear that recidivism is not regarded as an “element” of the offense
for Blakely sentencing purposes. See James v. United States, 550 U.S. 192, 214 n.8 (2007); Blakely, 542
U.S. at 301; Almendarez-Torres v. United States, 523 U.S. 224, 243-47 (1998).
Ruhlman v. Brunsman
provide any reasons, convincing or otherwise, for imposing the sentence,
and his decision was unreviewable. Thus, even if the revised guidelines
law did not “technically . . . increase . . . the punishment annexed to
[petitioner’s] crime,” it foreclosed his ability to challenge the imposition
of a sentence longer than his presumptive sentence under the old law.
Petitioner therefore was “substantially disadvantaged” by the
retrospective application of the revised guidelines to his crime.
Id. at 432-33 (quoting Lindsey v. Washington, 301 U.S. 397, 401 (1937) (alteration in
Miller)) (emphasis added).
Here, in contrast to Miller, Ruhlman was always subject to an eight-year sentence
upon a finding that he posed the greatest likelihood of committing future crimes.
Further, Ruhlman retained his appellate rights after Foster.
We do not hold that there can be no ex-post-facto-type due process violation
engendered by Foster. It is possible that a defendant who served no prior prison term
,who is sentenced to a greater-than-minimum term notwithstanding the absence of any
of the statutory factors that were necessary to support a greater-than-minimum sentence
pre-Foster could support an ex-post-facto-type due process claim.4 Ruhlman, however,
Finally, Ruhlman argues that, by severing the requirement that courts set forth
on the record their reasons for imposing the maximum sentence under the statute, Foster
eliminated any meaningful review of criminal sentences in Ohio. At Ruhlman’s initial
sentencing, the trial court explained its decision to impose the maximum term possible
for the offense, as required by O.R.C. §§ 2929.14(C) and 2929.19(B)(2)(d). When
Ruhlman was resentenced post-Foster, the court recited that it had considered various
materials, as well as the principles and purposes of sentencing, and balanced the
seriousness and recidivism factors. It also found Ruhlman to be a sexual predator. The
court did not, however, repeat the findings set forth in the original judgment, specifically
Any such potential claims would presumably be defeated by Ohio sentencing courts employing
the simple expedient of continuing to make findings correlating to the severed portions of the statute in
cases where the offense was committed pre-Foster, although expressly recognizing that the provisions do
not control the sentence and are being discussed solely for due process purposes, and imposing minimum
sentences for pre-Foster offenses if no such findings can be made.
Ruhlman v. Brunsman
the finding that Ruhlman poses the greatest likelihood of recidivism. Ruhlman argues
that Foster unconstitutionally abridged his appellate rights by limiting the reviewability
of his sentence on appeal. Again, we disagree.
Miller also deals with the ex-post-facto alteration of appellate rights. However,
in Miller, the defendant was statutorily barred from appealing his sentence because it
was within the presumptive guidelines range. 482 U.S. at 433. By contrast, Ohio law
allows defendants like Ruhlman to challenge sentences that are “contrary to law.”
O.R.C. § 2953.08(A)(4). Thus, unlike the defendant in Miller, Ruhlman retained his
right to appeal his sentence and, in fact, did so.
Lastly, because we decide this case under AEDPA, our review is deferential. In
denying Ruhlman’s Ex Post Facto and Due Process arguments, the Ohio Court of
Appeals relied on its prior decisions, which in turn relied on United States v. Jamison,
416 F.3d 538 (7th Cir.), rehr’g & rehr’g en banc denied, No. 05-1045, 2005 U.S. App.
LEXIS 18258 (7th Cir. Aug. 24, 2005). In Jamison, the Seventh Circuit joined the Fifth
and Eleventh Circuits in rejecting an ex-post-facto challenge to the remedial holding of
Booker rendering the United States Sentencing Guidelines advisory. Id. at 539 (citing
United States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005), cert. denied, 552 U.S. 932
(2007); United States v. Duncan, 400 F.3d 1297, 1307-08 (11th Cir.), cert. denied, 546
U.S. 940 (2005)). In light of these cases, and the absence of a Supreme Court ruling on
this matter, we cannot say that the Ohio Court of Appeals’ decision here was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.
For the reasons set forth above, the district court’s denial of Ruhlman’s petition
for habeas corpus is AFFIRMED.
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