Joseph Featherkile v. Wanza Jackson


Per Curiam OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. R. Guy Cole , Jr., Circuit Judge; David W. McKeague, Circuit Judge and Richard Allen Griffin, Circuit Judge.

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Case: 10-3331 Document: 006111166957 Filed: 12/27/2011 Page: 1 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0885n.06 FILED No. 10-3331 Dec 27, 2011 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk JOSEPH FEATHERKILE, Petitioner-Appellant, v. WANZA JACKSON, Warden, Respondent-Appellee. BEFORE: ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO OPINION 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 Case: 10-3331 Document: 006111166957 Filed: 12/27/2011 Page: 2 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. -2-

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