Craycraft v. Warden, Hocking Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists could disagree with this conclusion, Petitioner should be granted a certificate of appealability. Objections to R&R due by 5/2/2014. Signed by Magistrate Judge Michael R Merz on 4/15/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEREMIAH CRAYCRAFT,
Petitioner,

:

- vs -

Case No. 1:13-cv-089
District Judge William O. Bertelsman
Magistrate Judge Michael R. Merz

WARDEN, Hocking Correctional Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS

With the assistance of counsel, Petitioner Jeremiah Craycraft brought this habeas corpus
action under 28 U.S.C. § 2254 to obtain relief from his conviction and sentence in the Clermont
County Common Pleas Court for child endangering, felonious assault, and domestic violence
(Petition, Doc. No. 2, ¶¶ 1, 5). On Magistrate Judge Litkovitz’s Order (Doc. No. 3), the Warden
has filed a Return of Writ (Doc. Nos. 9, 10). Craycraft filed a Traverse (Doc. No. 15) and, with
Court permission, the Warden has filed a Reply to the Traverse (Doc. No. 18). The case is thus
ripe for decision.
Craycraft pleads the following ground for relief:1
Ground One: Petitioner's right to due process of law, as
guaranteed by the Fourteenth Amendment to the United States
Constitution was violated when the Petitioner was resentenced to a
harsher sentence after a remand following the Ohio Supreme
Court's decision in State v. Johnson, 128 OhioSt.3d 153, 2010Ohio-6314.

1

Although three Grounds for Relief are pled in the Petition, Petitioner “does not proceed on claims two and three.”
(Traverse, Doc. No. 15, PageID 1712, n. 1.) The Court treats that as a withdrawal of those claims with prejudice.

1

Supporting Facts: Petitioner, Jeremiah Craycraft was convicted
of two counts of felonious assault, two counts of child
endangering, and two counts of domestic violence. The trial court
sentenced Mr. Craycraft to six years in prison on both felonious
assault counts, five years on two child endangering counts, and
four years on the domestic violence counts. The court ran Counts
1, 2, 5 and 6 consecutive to one another and ran Counts 7 and 8
concurrent for a total aggregate sentence of 22 years in prison.
After the Twelfth District Court of Appeals affirmed Mr.
Craycraft's conviction the Ohio Supreme Court reversed the
Twelfth District's decision and remanded the matter to the Twelfth
District for application of its decision in State v. Johnson, 128
O.St.3d 153, 2010-0hio-6314.
The Twelfth District held the State relied upon the same conduct to
support Mr. Craycraft's convictions for felonious assault, child
endangering and domestic violence. Consequently, the offenses
were allied offenses of similar import. The Court, therefore,
ordered the trial court to merge the allied offenses after the State
elected which offense to pursue on remand.
Upon remand, the State elected to pursue the Felonious Assault
counts, for each child, for sentencing purposes. The trial court then
sentenced Appellant to serve eight years (verses [sic] six) on each
of the felonious assault counts, consecutive, for a total aggregate
sentence of sixteen years in prison with credit for time served. In
support of its sentence, the trial court stated that at the time of the
initial sentence, it could have imposed fifty-two years in prison,
but chose only to impose twenty-two years. The trial court stated it
considered all the charges as a whole and determined individually
what the court believed was an appropriate sentence.
Mr. Craycraft was resentenced by the same judge after a successful
appeal to Ohio Supreme Court. As a result, the presumption of
vindictiveness applies. However, the Twelfth District determined
that the presumption of vindictiveness does not apply when a
defendant is resentenced following a remand for the application of
this Court's decision in Johnson.
The presumption of vindictiveness was not overcome because the
trial court relied only upon the information it had before it during
the initial sentencing hearing. There was no objective information
regarding Mr. Craycraft's conduct or other events that were
presented to justify an increase in the sentence. As a result, Mr.

2

Craycraft's right to due process of law was violated when the trial
court increased his sentence after the case was remanded.

(Petition, Doc. No. 2, PageID 17-19.)

Procedural History

Craycraft was indicted for felonious assault on his two-month-old twin children, along
with counts for endangering those children and domestic violence toward them.

He was

convicted at trial on two counts of felonious assault, on each of which he was sentenced to six
years imprisonment, to be served consecutively. Counts 3 and 4 for child endangering were
merged with Counts 5 and 6 and Craycraft was sentenced to five years each on the merged
charges, to be served consecutively to each other and consecutively to the felonious assault
charges, for a total incarceration of twenty-two years. Craycraft was also sentenced to concurrent
time for the domestic violence counts.
On direct appeal Craycraft raised six assignments of error, including a claim that all of
the charges of conviction were allied offenses of similar import. The Twelfth District Court of
Appeals overruled all six assignments of error. Craycraft appealed to the Ohio Supreme Court
on March 24, 2010. The Ohio Supreme Court accepted the appeal on a proposition of law
involving the allied offenses claim and held this case for decision pending its decision in State v.
Johnson, 128 Ohio St. 3d 153 (2010), which was handed down on December 29, 2010. On the
same day, the Ohio Supreme Court reversed the court of appeals in this case and remanded for
application of the Johnson decision. State v. Craycraft, 128 Ohio St. 3d 337 (2010).

3

On remand, the Twelfth District reconsidered its decision on the sixth assignment of error
in light of Johnson and wrote:
[**P11] The Ohio Supreme Court established a new two-part test
for determining whether offenses are allied offenses of similar
import under R.C. 2941.25 in State v. Johnson, 128 Ohio St.3d
153, 2010 Ohio 6314, 942 N.E.2d 1061 (overruling State v. Rance,
85 Ohio St.3d 632, 1999 Ohio 291, 710 N.E.2d 699). The first
inquiry focuses on whether it is possible to commit both offenses
with the same conduct. Id. at P 48. It is not necessary that the
commission of one offense will always result in the commission of
the other. Id. Rather, the question is whether it is possible for both
offenses to be committed by the same conduct. Id., quoting State v.
Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d 816.
Conversely, if the commission of one offense will never result in
the commission of the other, the offenses will not merge. Johnson
at P 51.
[**P12] If it is possible to commit both offenses with the same
conduct, the court must next determine whether the offenses were
in fact committed by a single act, performed with a single state of
mind. Id. at P49, quoting State v. Brown, 119 Ohio St. 3d 447,
2008 Ohio 4569, P 50, 895 N.E.2d 149 (Lanzinger, J., concurring
in judgment only). If so, the offenses are allied offenses of similar
import and must be merged. Johnson at P 50. On the other hand, if
the offenses are committed separately or with a separate animus,
the offenses will not merge. Id. at P 51.
[**P13] We employ the Johnson analysis to determine whether
felonious assault, second and third-degree child endangering, and
domestic violence are allied offenses similar import under R.C.
2941.25. First we examine whether it is possible to commit each of
these offenses with the same conduct. Johnson at P 48.
[**P14] The offense of felonious assault under R.C. 2903.11(A)(1)
requires proof that the defendant knowingly caused serious
physical harm. Domestic violence under R.C. 2919.25(A) requires
proof that the defendant knowingly caused physical harm to a
family or household member. Third-degree felony child
endangering under R.C. 2919.22(A) requires proof that a parent or
other actor listed in the statute recklessly created a substantial risk
to the health or safety of a minor child by violating a duty of care,
protection, or support, resulting in serious physical harm. Finally,
second-degree felony child endangering under R.C. 2919.22(B)(1)

4

requires proof that the defendant recklessly abused a minor child,
resulting in serious physical harm.
[**P15] We conclude that it is possible to commit the offenses of
felonious assault, second and third-degree child endangering, and
domestic violence with the same conduct. Johnson at P 48. Where,
as here, a parent violates his duty of care and thereby knowingly
inflicts serious physical harm upon a minor child, it is possible for
him to have committed all of these offenses. Because we answer
the first inquiry in the affirmative, we must next examine whether
appellant in fact committed the offenses by way of a single act,
performed with a single state of mind. Id. at P 49.
[**P16] The offenses were based on the following conduct, as
revealed by evidence adduced at trial. Appellant sometimes
babysat the twins alone while Staci was at work. He conceded that
the babies always seemed to sustain their injuries while in his care.
However, appellant attributed their injuries to a number of
household "accidents." He also admitted to employing certain
techniques to soothe the crying babies which may have
unintentionally injured them. Appellant described some of these
techniques and demonstrated them on a baby doll in videotaped
interviews with law enforcement officials. Testimony offered by a
number of witnesses referred in depth to the various injuries
sustained by both babies and the manner in which such injuries
were typically inflicted.
[**P17] Appellant was convicted on two counts for each of the
offenses. While one count always pertained to K.C. and the other
to S.C., the indictments neglected to specify which victim matched
up with which count for any of the offenses. Additionally, the
evidence at trial was generally presented and was not allocated to
specific counts in the indictment.
[**P18] Due to the way the case was indicted and tried, it is
impossible for us to parse out which allegations of appellant's
conduct were meant to support which charges. As our own analysis
of appellant's manifest weight challenge in Craycraft I reveals,
none of the injuries sustained by the twins were explicitly linked to
separate counts in the indictments. Rather, the state relied upon the
same conduct to prove the offenses of felonious assault, second
and third-degree child endangering, and domestic violence.
Johnson at P 56. Although the testimony indicates that there were
separate injuries and, in all likelihood, separate incidents of abuse,
appellant's convictions for all of the offenses were generally based
on the series of events which resulted in the twins' injuries. The
5

charges were never connected to particular instances of appellant's
conduct.
[**P19] Because this was a pre-Johnson case, the charges were
pursued collectively in contemplation of the now-overruled Rance
analysis for allied offenses of similar import. Following Johnson, it
is likely that criminal cases will proceed differently from the
indictment forward. In the present matter, neither the parties, the
trial court, nor this court could have anticipated the Johnson
decision and its impact on the allied offenses analysis. However,
because Johnson is now the law and this case cannot be retried due
to Double Jeopardy concerns, we are compelled to view the record
as it stands in revisiting the issue.
[**P20] Upon reviewing the case, it is evident that the state relied
upon the same conduct to support appellant's convictions for
felonious assault, second and third-degree child endangering, and
domestic violence on the four counts pertaining to K.C.
Consequently, the offenses concerning K.C. are allied offenses of
similar import and must be merged. Id. at P 50. Similarly, the state
relied upon the same conduct to support appellant's convictions on
the four counts concerning S.C. Consequently, the offenses
pertaining to S.C. are allied offenses of similar import and must be
merged. Id.
[**P21] As far as we can discern, the state retains the right to elect
which allied offense to pursue at sentencing following a remand to
the trial court, and the trial court is still bound by the state's
election. State v. Whitfield, 124 Ohio St. 3d 319, 2010 Ohio 2, P
20, 24, 922 N.E.2d 182. This prior decree issued by the Ohio
Supreme Court in Whitfield appears to be unchanged in the wake
of Johnson.
[**P22] Insofar as the trial court failed to merge the allied
offenses, the judgments of the trial court are reversed and this
matter is remanded for further proceedings according to law and
consistent with this opinion.
[**P23] Judgments affirmed in part, reversed in part, and
remanded.
State v. Craycraft, 193 Ohio App. 3d 594 (12th Dist. 2011).
Upon remand, the prosecutor elected the two felonious assault convictions and the other
convictions were merged with those. The trial judge then sentenced Craycraft to eight years on
6

each count, to be served consecutively, for a total of sixteen years incarceration. Craycraft again
appealed, pleading one assignment of error with three issues, including a claim that he should not
have received a de novo sentencing hearing, the resentencing was unconstitutionally vindictive,
and a new Ohio statute should have been applied. As to the vindictive resentencing claim, the
Twelfth District held:
[*P10] Next, appellant argues that the trial court "vindictively
increased" his sentence upon remand "after a successful appeal to
the Ohio Supreme Court." As noted above, appellant was
originally sentenced to serve a total of 22 years in prison. As part
of this sentence, the trial court ordered appellant to serve two
consecutive six-year prison terms, or, stated differently, a total of
12 years in prison, on the two felonious assault offenses. However,
upon remand from this court, the trial court ordered appellant to
serve two consecutive eight-year prison terms, for a total of 16
years in prison, on the two felonious assault offenses. According to
appellant's argument, which implicates North Carolina v. Pearce,
395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed. 2d 656 (1969), and its
progeny, the trial court violated his due process rights by
increasing the sentence he received on each felonious assault
offense from a six-year prison term to an eight-year prison term.
We disagree.
[*P11] In Pearce, the U.S. Supreme Court explained that due
process precludes vindictiveness from playing any role in a
defendant's sentence following a remand. Id. at 725. Under some
circumstances, a presumption of vindictiveness exists when a
defendant receives a more severe sentence on remand. State v.
Johnson, 2nd Dist. No. 23297, 2010 Ohio 2010, ¶ 5. Cases
subsequent to Pearce indicate that such a presumption arises only
when circumstances establish a "reasonable likelihood" that an
increased sentence is the product of vindictiveness. See, e.g.,
Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L. Ed.
2d 865 (1989). "Where there is no such reasonable likelihood, the
burden remains upon the defendant to prove actual vindictiveness."
Id, citing Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct.
3217, 82 L. Ed. 2d 424 (1984).
[*P12] At the outset, although we note that the same judge
presided over both appellant's original sentencing hearing and his
new sentencing hearing upon remand, we question whether the
presumption of vindictiveness automatically applies when a
7

defendant is resentenced following a remand for the application of
the Ohio Supreme Court's decision in Johnson. As in those cases
requiring a remand for resentencing under State v. Foster, 109
Ohio St.3d 1, 2006 Ohio 856, 845 N.E.2d 470, these are not cases
in which a trial court judge has been reversed for erroneously
applying the law. See State v. Andrews, 12th Dist. No. CA2006-06142, 2007 Ohio 223, ¶ 23 (questioning whether presumption of
vindictiveness automatically applies when a defendant is
resentenced as a result of the Ohio Supreme Court's decision in
Foster).
[*P13] That said, to support his vindictive resentencing claim,
appellant initially argues that the trial court engaged in
impermissible "sentence packaging" during its original sentencing
hearing by sentencing him to serve two consecutive six-year prison
terms on the felonious assault offenses knowing "it was able to
impose more time on the other offenses which now required
merger." However, even if we were to find the trial court originally
engaged in impermissible sentence packaging, it is clear that upon
remand the trial court properly considered each of the state elected
felonious assault offenses before ordering appellant to serve two
consecutive eight-year prison terms. Each of the two elected
offenses related to only one of the two victims. In other words,
appellant was sentenced to serve eight years in prison for
assaulting K.C., his two-month-old son, and an additional eight
years for assaulting S.C., his two-month-old daughter. Therefore,
because the sentences imposed relate to each individual victim, this
is simply not a case in which the trial court considered the offenses
as a group before imposing one overarching sentence.
[*P14] Appellant also argues that there was no evidence presented
to justify increasing his sentence from two consecutive six-year
prison terms to two consecutive eight-year prison terms. According
to appellant, this indicates actual vindictiveness on the part of the
trial court. However, as noted above, the trial court was required
to conduct a de novo review of the affected sentences and "impose
a sentence that [was] appropriate for the merged offense" upon
remand. Wilson, 129 Ohio St. 3d 214, 2011 Ohio 2669 at ¶ 15, 18,
951 N.E.2d 381; Whitfield, 124 Ohio St. 3d 319, 2010 Ohio 2 at ¶
24, 922 N.E.2d 182.
[*P15] Furthermore, prior to sentencing appellant to serve two
consecutive eight-year prison terms upon remand, the trial court
specifically stated that it had considered appellant's extensive
criminal history, the severity of the victims' injuries, the victims'
ages at the time of the assault, appellant's relationship to the
8

victims, and his lack of remorse. We find no error in the trial
court's decision finding two consecutive eight-year prison terms
was an appropriate sentence. Accordingly, because the record is
devoid of any evidence indicating the trial court's sentencing
decision was vindictive, appellant's second issue presented is
overruled.
State v. Craycraft, 2012-Ohio-884, 2012 Ohio App. LEXIS 768 (12th Dist. Mar. 5, 2012). The
Ohio Supreme Court declined jurisdiction over a subsequent appeal. State v. Craycraft, 132
Ohio St. 3d 1463 (2012). The instant habeas corpus petition followed.

Analysis

Ground One: Vindictive Resentencing After Appeal

In his sole Ground for Relief, Craycraft claims he was vindictively resentenced in
violation of his Due Process rights.
Craycraft urges this Court to review his claim de novo, asserting “the Warden has
abandoned the ruling issued by the State court, so that court’s rationale is no longer being
tested.” (Traverse, Doc. No. 15, PageID 1713.) The Warden disclaims having taken any such
position and reiterates that this Court should defer to the state court decision (Reply to Traverse,
Doc. No. 18, PageID 1726-27).
There is no question in the Magistrate Judge’s mind that the Twelfth District Court of
Appeals decided the issue presented in the First Ground for Relief, to wit, was the resentencing
vindictive in violation of the Due Process Clause of the Fourteenth Amendment? The Supreme
Court has made it clear that what a habeas court is to review is the decision of the state court; its
reasoning only comes into play if the reasoning demonstrates that its application of Supreme
9

Court precedent was objectively unreasonable. The Supreme Court has written on this question:
The Antiterrorism and Effective Death Penalty Act of 1996
modified a federal habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas "retrials" and to
ensure that state-court convictions are given effect to the extent
possible under law. See Williams v. Taylor, 529 U.S. 362, 403404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To these ends, §
2254(d)(1) provides:
(d) An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
"(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."
As we stated in Williams, § 2254(d)(1)'s "contrary to" and
"unreasonable application" clauses have independent meaning.
529 U.S., at 404-405, 120 S.Ct. 1495. A federal habeas court may
issue the writ under the "contrary to" clause if the state court
applies a rule different from the governing law set forth in our
cases, or if it decides a case differently than we have done on a set
of materially indistinguishable facts. Id., at 405-406, 120 S. Ct.
1495.
The court may grant relief under the "unreasonable
application" clause if the state court correctly identifies the
governing legal principle from our decisions but unreasonably
applies it to the facts of the particular case. Id., at 407-408, 120
S.Ct. 1495. The focus of the latter inquiry is on whether the state
court's application of clearly established federal law is objectively
unreasonable, and we stressed in Williams that an unreasonable
application is different from an incorrect one. Id., at 409- 410, 120
S.Ct. 1495. See also id., at 411, 120 S.Ct. 1495 (a federal habeas
court may not issue a writ under the unreasonable application
clause "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly").
Bell v. Cone, 535 U.S. 685, 693-94 (2002). This Court does not, therefore, engage in de novo
review, but instead must determine if the Twelfth District’s decision is contrary to or an

10

unreasonable application of Supreme Court case law.
In North Carolina v. Pearce, 395 U.S. 711 (1969), cited by the Twelfth District as the
lead case, the Supreme Court held:
In order to assure the absence of such a motivation [of
vindictiveness], we have concluded that whenever a judge
imposes a more severe sentence upon a defendant after a new
trial, the reasons for his doing so must affirmatively appear.
These reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentence.
395 U.S. at 726. See also United States v. Goodwin, 457 U.S. 368 (1982). A defendant who
does not have the benefit of the presumption can still prevail if he can show actual
vindictiveness. United States v. Jackson, 181 F. 3d 740, 744 (6th Cir. 1999).
The actual sentences imposed in this case are shown in tabular form:
Charge of conviction
Felonious assault
Felonious assault
Endangering children
Endangering children
Endangering children
Endangering children
Total

First Sentence
6 years
6 years
5 years
5 years
Merged with child
endangering
Merged with child
endangering
22 years

Re-sentence
8 years
8 years
Merged with felonious assault
Merged with felonious assault
Merged with felonious assault
Merged with felonious assault
16 years

(Traverse, Doc. No. 15, PageID 1714.) In addition, not mentioned in the Traverse are two counts
of domestic violence with prior conviction specifications, on which, both before and after
remand, Craycraft was sentenced to four years each, to be served concurrently with the other
sentences.
Craycraft argues Pearce applies simply to this case: the same judge imposed sentence
after reversal on appeal and increased the sentence on the two counts of felonious assault by two

11

years each., Id. at PageID 1715.

Under those circumstances, Petitioner says, the Pearce

presumption of vindictiveness applies. Id.
Noting that Craycraft’s aggregate sentence is six years less after re-sentencing, the
Warden argues the Pearce presumption does not apply in this circumstance. (Return of Writ,
Doc. No. 9, PageID 57, citing Sexton v. Kemna, 278 F.3d 808 (8th Cir. 2002); Bratton v. Beck,
2007 U.S. Dist. LEXIS 46670 (N.D. Ohio 2007); Ferrell v. United States, 1999 U.S. App.
LEXIS 30596 (6th Cir. 1999); and United States v. Rodgers, 278 F.3d 599 (6th Cir. 2002)).
Petitioner dismisses this precedent, saying that it all comes from jurisdictions which
accept the “sentencing package doctrine” which the Ohio Supreme Court rejected in State v.
Saxon, 109 Ohio St. 3d 176 (2006). Petitioner argues Ohio courts applying Saxon, have found
the Pearce presumption applies “even if the aggregate sentence remains the same. . .” (Traverse,
Doc. No. 15, PageID 1718, citing State v. Johnson, 2007-Ohio-6512, 174 Ohio App. 3d 130 (1st
Dist. 2007), and State v. Bradley, 2008-Ohio-720, 2008 Ohio App. LEXIS 621 (2nd Dist. 2008)).
In Bradley the Second District noted that Saxon did not announce new Ohio law.
Bradley, 2008-Ohio-720, ¶ 29 quoting Saxon at ¶ 10:

“This court has never adopted the

sentencing-package doctrine, and we decline to do so now.” The Bradley court, however, found
that the sentencing judge had employed the sentencing package doctrine in violation of Ohio
law:
[*P35] The trial court erred when it imposed harsher sentences in
order to serve the purposes and principles of sentencing with
respect to the aggregate of the four separate offenses the court
imposed, because in so doing the court applied the sentence
packaging doctrine, which Ohio courts may not employ. Saxon.
That error does not portray a vindictive attitude. However, as with
respect to the matter of the fewer offenses of which Defendant
Bradley was convicted on his guilty pleas, and because it
constitutes an error of law, the court's purpose to achieve a greater

12

aggregate sentence cannot serve to rebut the presumption of
vindictiveness arising from those harsher sentences.
Id.
In Johnson, reversal was required by State v. Foster, 109 Ohio St. 3d 1 (2006), and on
remand the trial judge imposed a more severe sentence, commenting that his original sentence
was “constrained by the felony sentencing guidelines that were in place at the time.” Johnson,
2007-Ohio-6512, ¶ 9.

The First District noted that two other Ohio appellate courts had

concluded the Pearce presumption did not apply to resentencings required by Foster. The First
District disagreed and found the Pearce presumption applied but had been rebutted in this case.
Id. at ¶ 15.
Finally, Petitioner relies on Martin v. Warden, 2012 U.S. Dist. LEXIS 36221 (S.D. Ohio
2012)(Merz, M.J.), adopted at 2012 U.S. Dist. LEXIS 78304 (S.D. Ohio 2012)(Spiegel, D.J.) In
Martin the trial court had made sentences consecutive rather than concurrent on remand to
correct an error in the imposition of post-release control. This Court found failure to raise this as
an assignment of error under Pearce was ineffective assistance of appellate counsel, requiring
issuance of the writ for a new appeal. Id. at *28.
It is unclear to this judge why a State’s adoption or rejection of the “sentencing package
doctrine” should control whether the Pearce presumption of vindictiveness is applicable or not.
In Sexton, as Petitioner notes, the Eighth Circuit confirmed the adoption of the sentencing
package doctrine by Missouri, but did not make its constitutional analysis turn on that point. It
wrote:
The issue, then, in this multi-count case, is whether the "same
sentence" inquiry should be made on a count-by-count basis, or
simply by comparing the total prison sentence imposed before and
after the successful appeal. A number of our sister circuits have
considered this issue in the context of federal prosecutions, where
13

we have supervisory as well as constitutional jurisdiction. Most
concluded, as the Missouri Court of Appeals did in this case, that
the total sentences should be compared. Two circuits instead
compared the total sentence after remand with the total sentence
imposed on those same counts before the appeal. See United States
v. Vontsteen, 950 F.2d 1086, 1092-93 (5th Cir. 1992) (en banc)
(collecting cases). Our research uncovered three pre-AEDPA
circuit decisions in which state inmates sought federal habeas relief
under Pearce from their multi-count state court sentences. Relief
was denied in all three because the second sentence was not more
severe, but the cases were not factually similar to this case. See
Washington v. Regan, 510 F.2d 1126 (3d Cir. 1975); Timmons v.
Richards, 940 F.2d 666 (7th Cir. 1991) (unpublished); Thomas v.
Sutton, 857 F.2d 1469 (4th Cir. 1988) (unpublished). See also
Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir. 1990) (Pearce
presumption "should not be mechanically applied when some of a
defendant's individual sentences are increased, but his aggregate
sentence is reduced on remand following a successful appeal").
[Footnote omitted.]
Though these prior circuit court decisions do not provide a
definitive answer to our issue, they tend to confirm that the
Missouri Court of Appeals decision was not an unreasonable
application of Pearce within the meaning of 28 U.S.C. §
2254(d)(1). In addition, later Supreme Court decisions have not
broadly extended the Pearce presumption of vindictiveness. See
Alabama v. Smith, 490 U.S. 794, 801-03, 104 L. Ed. 2d 865, 109 S.
Ct. 2201 (1989) (no presumption when sentence following trial is
more severe than previous sentence following guilty plea; Pearce
overruled on this issue); Chaffin v. Stynchcombe, 412 U.S. 17, 2429, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973) (no presumption when
more severe sentence imposed by a different jury; Pearce is
concerned only with judicial vindictiveness, not whether the
defendant's right to appeal may be "chilled"). These later Supreme
Court decisions, and the circuit court decisions declining to
presume vindictiveness when a sentencing judge reimposes the
same total sentence in a multi-count case, are strong support for the
district court's conclusion that the Missouri courts did not
unreasonably apply Pearce in this case. See Williams, 529 U.S. at
410 (an unreasonable application of federal law is different from
an incorrect application of federal law").
Sexton, 278 F.3d at 812-13.

14

Whether or not the Pearce presumption applies here, the writ should be denied. That is,
it is either the case that Pearce does not reach this situation, based on the conflicting precedent
and the absence of a Supreme Court decision directly in point, or, if it does, that the presumption
of vindictiveness has been rebutted.
Pearce arose from a reversal of a conviction and a re-sentence after re-trial. That is,
Pearce had successfully challenged on appeal one or more of the trial judge’s rulings and a court
of appeals had found the trial judge was wrong. That is certainly not what happened here.
Craycraft sought relief under Ohio Revised Code § 2941.25 in the trial court; the denial of that
relief was affirmed on appeal because the trial judge had correctly applied the law as it then
stood. State v. Craycraft, Case Nos. CA2009-02-013 and CA2009-02-014 (12th Dist. Feb. 22,
2010)(unreported, copy at Return of Writ, Doc. No. 9-1, PageID 227-58). In its later decision,
quoted above, the Twelfth District noted that the Ohio Supreme Court in Johnson expressly
overruled State v. Rance (1999), 85 Ohio St.3d 632 (1999). In assessing the likelihood of
judicial vindictiveness, a habeas court should look at differences among reversals. It is one thing
to be reversed when a defendant calls a plain error to the attention of the appellate court. It is
another entirely to be reversed because the state supreme court has adopted an entirely new
analysis of a governing statute, which is what happened here.
Secondly, apart from the “sentencing package doctrine,” the aggregate sentence being
served by Petitioner is substantially less than the prior aggregate sentence. In Johnson, the First
District rested a finding of non-vindictiveness in part on the fact that the total sentence did not
increase. Johnson, supra, at ¶ 15. As the Twelfth District found, the trial judge was required to
re-sentence Craycraft de novo and determine what was an appropriate sentence for his felonious
assault on each of his infant children. The record shows that is what was done.

15

The Supreme Court has announced a variety of circumstances in which the Pearce
presumption does not apply or has been successfully rebutted. In Texas v. McCullough, 475 U.S.
134 (1986) it wrote:
Beyond doubt, vindictiveness of a sentencing judge is the evil the
Court sought to prevent rather than simply enlarged sentences after
a new trial. The Pearce requirements thus do not apply in every
case where a convicted defendant receives a higher sentence on
retrial. Like other "judicially created means of effectuating the
rights secured by the [Constitution]," Stone v. Powell, 428 U.S.
465, 482, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), we have
restricted application of Pearce to areas where its "objectives are
thought most efficaciously served," 428 U.S., at 487. Accordingly,
in each case, we look to the need, under the circumstances, to
"guard against vindictiveness in the resentencing process." Chaffin
v. Stynchcombe, 412 U.S. 17, 25, 93 S. Ct. 1977, 36 L. Ed. 2d 714
(1973) (emphasis omitted). For example, in Moon v. Maryland,
398 U.S. 319, 90 S. Ct. 1730, 26 L. Ed. 2d 262 (1970), we held
that Pearce did not apply when the defendant conceded and it was
clear that vindictiveness had played no part in the enlarged
sentence. In Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32
L. Ed. 2d 584 (1972), we saw no need for applying the
presumption when the second court in a two-tier trial system
imposed a longer sentence. In Chaffin, supra, we held Pearce not
applicable where a jury imposed the increased sentence on retrial.
Where the prophylactic rule of Pearce does not apply, the
defendant may still obtain relief if he can show actual
vindictiveness upon resentencing. Wasman v. United States, 468
U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984).
The facts of this case provide no basis for a presumption of
vindictiveness. In contrast to Pearce, McCullough's second trial
came about because the trial judge herself concluded that the
prosecutor's misconduct required it. Granting McCullough's
motion for a new trial hardly suggests any vindictiveness on the
part of the judge towards him. "[Unlike] the judge who has been
reversed," the trial judge here had "no motivation to engage in selfvindication." Chaffin, 412 U.S., at 27. In such circumstances, there
is also no justifiable concern about "institutional interests that
might occasion higher sentences by a judge desirous of
discouraging what he regards as meritless appeals." Ibid. In
granting McCullough's new trial motion, Judge Harney went on
record as agreeing that his "claims" had merit. Presuming
vindictiveness on this basis alone would be tantamount to
16

presuming that a judge will be vindictive towards a defendant
merely because he seeks an acquittal. Thus, in support of its
position, the dissent conjures up visions of judges who view
defendants as temerarious for filing motions for new trials, post, at
151, and who are "annoyed" at being forced "to sit through . . .
[trials] whose [results] [are] foregone [conclusions]," post, at 150.
We decline to adopt the view that the judicial temperament of our
Nation's trial judges will suddenly change upon the filing of a
successful post-trial motion. The presumption of Pearce does not
apply in situations where the possibility of vindictiveness is this
speculative, particularly since the presumption may often "operate
in the absence of any proof of an improper motive and thus . . .
block a legitimate response to criminal conduct," United States v.
Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed. 2d 74
(1982). Indeed, not even "apprehension of such a retaliatory
motivation on the part of the sentencing judge," Pearce, 395 U.S.,
at 725, could be present in this case. McCullough was entitled by
law to choose to be sentenced by either a judge or a jury. Faced
with that choice, on retrial McCullough chose to be sentenced by
Judge Harney. There can hardly be more emphatic affirmation of
his appraisal of Judge Harney's fairness than this choice. Because
there was no realistic motive for vindictive sentencing, the Pearce
presumption was inappropriate.
McCullough, 475 U.S. at 138-139.
Given the wide variety of factual circumstances in which the Supreme Court has found
the Pearce presumption does not apply or has been successfully rebutted, this Court cannot say
that the Twelfth District’s decision is contrary to or an objectively unreasonable application of
clearly established Supreme Court law.

17

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice.

Because reasonable jurists could disagree with this conclusion,

Petitioner should be granted a certificate of appealability.

April 15, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

18