Johnson v. Kerns
Amended Opinion and Order signed by Judge James S. Gwin on 6/17/11. The Court adopts the Report and Recommendation of the Magistrate Judge and denies the petition for writ of habeas corpus. The Court certifies that an appeal could be taken in good faith and issues a certificate of appealability under 18 United States Code Sec. 2253(c) as set forth in this entry. (Related Docs. 1 , 13 , 14 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CASE NO. 3:08-cv-02721
AMENDED OPINION & ORDER
[Resolving Doc. No. 1]
PHILLIP KERNS, WARDEN,
------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Petitioner Lamond Johnson petitions for a writ of habeas corpus under 28 U.S.C § 2254.
[Doc. 1.] Johnson seeks relief from his fourteen-year sentence that an Ohio state court imposed
following his guilty plea to aggravated robbery, kidnapping, and rape. [Doc. 1.] Magistrate Judge
William H. Baughman, Jr. recommends that this Court deny Johnson’s petition. [Doc. 12.] Johnson
objects to that recommendation. [Doc. 13.] For the following reasons, the Court ADOPTS the
Magistrate Judge’s report and recommendation and DENIES Johnson’s habeas petition.
In 2004, a Grand Jury indicted Johnson on one count of aggravated robbery, one count of
kidnapping, and two counts of rape. [Doc. 9-1 at 1-3.] Johnson entered a plea of no contest to all but
one of the rape charges, which the State dropped in a modified indictment. [Doc. 9-1 at 4.] On
August 10, 2004, an Ohio court sentenced Johnson to a minimum three-year prison term for
aggravated robbery, and a minimum three-year term for kidnapping. The court sentenced Johnson
Case No. 3:08-cv-02721
to a non-minimum eight-year term for rape, based on its finding that “the shortest prison term will
demean the seriousness of the offender’s conduct [or] will not adequately protect the public.” [Doc.
9-1 at 10.] The Ohio court ordered the terms to be served consecutively, for a combined prison term
of fourteen years, based in part on its finding that “the harm caused [by Johnson’s crime] was great
or unusual.” [Id.]
Subsequent to Johnson’s sentencing, the Ohio Supreme Court decided State v. Foster, 845
N.E.2d 470 (Ohio 2006). Prior to Foster, Ohio law required that a defendant receive the shortest
prison term authorized for the crime unless the court found that the defendant was already serving
a prison term at the time of the offense, or that the shortest prison term would “demean the
seriousness of the offender’s conduct or [would] not adequately protect the public . . . .” Ohio Rev.
Code Ann. § 2929.14(B) (2005). A court could impose consecutive terms only if it found that
consecutive sentences were “necessary to protect the public from future crime or to punish the
offender,” that the sentences were not “disproportionate to the danger the offender pose[d] to the
public,” and one of the following:
a) The offender committed one or more of the offenses while the offender was
awaiting trial, sentencing, or while under supervision;
b) At least two of the offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the multiple offenses so committed
was so great or unusual that no single prison term of any of the offenses committed
as part of any of the courses of conduct adequately reflects the seriousness of the
offender’s conduct; or
c) The offender’s history of criminal conduct demonstrates that consecutive sentences
are necessary to protect the public from future crime by the offender.
Id. § 2929.14(E)(4) (2005).
Foster held unconstitutional those portions of Ohio sentencing law that permitted harsher
Case No. 3:08-cv-02721
sentences based on facts found by the sentencing judge rather than the jury. 845 N.E.2d at 490. As
a remedy, Foster severed those offending portions, giving trial courts discretion to impose any
sentence within the statutory range without first making findings. Id.
Johnson appealed his sentence while the Ohio Supreme Court’s decision in Foster was
pending. On May 3, 2006, after issuing its decision in Foster, the state supreme court remanded the
case to the trial court for re-sentencing consistent with Foster. [Doc. 9-1 at 37.] At resentencing on
October 10, 2006, the trial court imposed the same fourteen-year sentence without issuing factual
findings. [Doc. 9-1 at 38-39.]
Johnson appealed the trial court’s application of Foster on resentencing, arguing that the
court had violated the federal Constitution’s Ex Post Facto Clause and Due Process Clause. The
Ohio Court of Appeals affirmed the sentence, and the Ohio Supreme Court denied leave to appeal.
State v. Johnson, 2007 WL 1953621 (Ohio App. 6 Dist.,2007); State v. Johnson, 116 Ohio St.3d
1413 (Ohio Nov 21, 2007) (Table, NO. 2007-1497). Having exhausted his direct appeal, Johnson
now asks this Court for habeas relief from his sentence. [Doc. 1.]
The Magistrate Judge recommends that this Court deny Johnson’s petition, [Doc. 12], and
Johnson objects to the Magistrate Judge’s determination that Johnson’s right to due process was not
violated, [Doc. 13] The Court thus review this issue de novo. 28 U.S.C. § 636(b)(1) (Federal
Magistrates Act requires a district court to conduct de novo review only of those portions of a Report
and Recommendation to which the parties have objected).
II. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (“AEDPA”), governs a federal court’s review of a state prisoner’s habeas corpus
Case No. 3:08-cv-02721
petition. AEDPA limits federal review to only those claims in which a petitioner contends that he
is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §
2254(a) (1996). AEDPA provides that federal courts cannot grant a habeas petition for any claim
that the state court adjudicated on the merits unless the 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
upon an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d) (1996). See Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).
To justify a grant of habeas relief under the “contrary to” clause, “a federal court must find
a violation of law ‘clearly established’ by holdings of the Supreme Court, as opposed to its dicta, as
of the time of the relevant state court decision.” Id. (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). Meanwhile, under the ‘unreasonable application’ clause, “a federal habeas court may grant
the writ 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.” Williams, 529
U.S. at 413. The Sixth Circuit holds that, even if a federal court could determine that a state court
incorrectly applied federal law, the court still could not grant relief unless it also finds that the state
court ruling was unreasonable. Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000).
III . Analysis
Johnson says that the retroactive application of State v. Foster, 845 N.E.2d 470 (Ohio 2006)
to his sentence—resulting in greater-than-minimum and consecutive sentences without the findings
required by Ohio Revised Code § 2929.14(B) and (E)—violated the Due Process Clause limitation
on ex post facto application of judicial decisions.
Case No. 3:08-cv-02721
As the Ex Post Facto Clause binds a State’s judiciary only to an extent inherent in the Due
Process Clause of the Fourteenth Amendment, retroactive application of intervening judicial
decisions altering statutory sentencing schemes is constitutional as long as the defendant had
adequate notice of the potential sentence. Rogers v. Tennessee, 532 U.S. 451 (2001).
The Ohio Supreme Court decision in Foster did not alter the sentencing range available under
§ 2929.14(A); it merely did away with the threshold requirement of judicial fact finding. And,
although Foster unnecessarily gutted core elements of Ohio’s previously commendable sentencing
scheme, the Ohio Supreme Court’s wrong-headed decision was constitutional. Johnson was aware
of the maximum penalty he faced prior to committing his crimes in 2004: he acknowledged in his
May 7, 2004 no-contest plea that he faced up to 30 years in prison for his crimes. [Doc. 9-1 at 4.] The
Foster decision two years later did not expand or contract his potential sentence. See State v. Foster,
845 N.E.2d 470 (Ohio 2006). Johnson cannot, therefore, complain that he did not receive “notice”
or “fair warning” that his criminal conduct might have resulted in the fourteen-year sentence he
received. See U.S. v. Barton, 455 F.3d 649, 654-55 (6th Cir. 2006).
For similar reasons, every Court in this district to address an ex post facto challenge to a
retroactive sentencing under Foster has rejected it. See Gonzales v. Welch, No. 3:08CV2269, 2010
WL 3222085 (N.D. Ohio Aug. 13, 2010), (Gwin, J.); Lininger v. Welch, No. 3:08CV3006, 2010 WL
2598209 (N.D. Ohio June 24, 2010), (Gwin, J.); McGhee v. Konteh, No. 1:07CV1408, 2008 WL
320763 (N.D. Ohio Feb. 1, 2008), (Nugent, J); Lyles v. Jeffreys, No. 3:07CV1315, 2008 WL
1886077 (N.D. Ohio Apr. 24, 2008), (Oliver, J.); Cooper v. Hudson, No. 3:07CV610, 2008 WL
2001282 (N.D. Ohio May 5, 2008), (Polster,J.); Watkins v. Williams, No. 3:07CV1296, 2008 WL
2484188 (N.D. Ohio June 17, 2008),(Adams, J.); Keith v. Voorhies, No. 1:06CV2360, 2009 WL
Case No. 3:08-cv-02721
185765 (N.D. Ohio Jan. 23, 2009), (Lioi, J.); McKitrick v. Smith, No. 3:08CV597, 2009 WL
1067321 (N.D. Ohio Apr. 21, 2009), (Gaughin, J.); Orwick v. Jackson, No. 3:09CV0232, 2009 WL
4043352 (N.D. Ohio Nov. 20, 2009), (Boyko, J.); Newsome v. Brunsman, No. 1:08CV1938, 2010
WL 319792, (N.D. Ohio Jan. 20, 2010), (Zouhary, J.); Ashley v. Gansheimer, No. 1:08CV2556,
2010 WL 1924459 (N.D. Ohio May 12, 2010), (O’Malley, J.). Johnson cites no Supreme Court
decision holding otherwise.
The Ohio Supreme Court’s affirmation of the sentence on the grounds that Johnson had
sufficient pre-Foster notice of his post-Foster potential sentence was thus neither contrary to nor an
unreasonable application of clearly established federal law as determined by the Supreme Court of
the United States.
Accordingly, the Court ADOPTS the Magistrate Judge’s report and
recommendation and DENIES Johnson’s petition.
The Court certifies, however, that an appeal from this decision could be taken in good faith
and thus issues a certificate of appealability under 28 U.S.C. § 2253(c) as to whether the retroactive
application of Foster to Johnson’s sentence was contrary to or an unreasonable application of clearly
established federal law.
IT IS SO ORDERED.
Dated: June 17, 2011
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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