Craycraft v. Warden, Hocking Correctional Institution

Filing 26

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice, but that Petitioner be granted a certificate of appealability on the one ground for relief he pleads. Objections to R&R due by 9/8/2014. Signed by Magistrate Judge Michael R Merz on 8/20/2014. (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.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 24) to
the Magistrate Judge’s Report and Recommendations (the “Report,” Doc. No. 20).

Judge

Bertelsman has recommitted the case for reconsideration in light of the Objections (Doc. No.
25).
Petitioner Jeremiah Craycraft is now serving two consecutive eight-year sentences for
committing felonious assault on each of his infant children. At trial he was convicted of one
count of felonious assault, two counts of endangering children, and one count of domestic
violence as to each child and sentenced to a total of twenty-two years confinement.
Between the time of sentencing and the decision of this case on the first direct appeal, the
Ohio Supreme Court worked a major change in the way it applies Ohio’s allied offenses statute,
Ohio Revised Code § 2941.25, in State v. Johnson, 128 Ohio St.3d 153 (2010). The Twelfth
District had affirmed Craycraft’s conviction, but the Ohio Supreme Court had accepted an appeal
and the same day it decided Johnson, the Ohio Supreme Court remanded this case to the Twelfth

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District Court of Appeals for reconsideration in light of Johnson. State v. Craycraft, 128 Ohio
St. 3d 337 (2010). Applying Johnson to this case, the Twelfth District found that the felonious
assault and endangering children charges had to be merged. It remanded the case for the
prosecutor to elect which charges would stand and for the trial court to impose a sentence. State
v. Craycraft, 193 Ohio App. 3d 594 (12th Dist. 2011).
After the trial judge imposed the sentence Craycraft is now serving, he appealed again,
expressly raising the constitutional claim that he had been vindictively sentenced on remand to a
higher sentence on each of the felonious assault charges. Applying North Carolina v. Pearce,
395 U.S. 711 (1969), the relevant United States Supreme Court precedent, the Twelfth District
held that the sentence was not vindictive. State v. Craycraft, 2012-Ohio-884, ¶¶ 10-15, 2012
Ohio App. LEXIS 768, at **6-9 (12th Dist. Mar. 5, 2012). This time the Ohio Supreme Court
declined jurisdiction over a subsequent appeal. State v. Craycraft, 132 Ohio St. 3d 1463 (2012).
In his habeas petition, Craycraft presents the same claim he presented to the Twelfth
District, to wit, that his increased sentence from six to eight years on each of the felonious
assault charges after a successful appeal is unconstitutionally vindictive. Because the state courts
had decided the claim on the merits, the Report reviewed that decision through the lens of
AEDPA deference and concluded it was neither contrary to nor an objectively unreasonable
application of Pearce, supra (Report, Doc. No. 20, PageID 1742-50). Accordingly, the Report
recommended that the Petition be dismissed, but also found the question close enough to
recommend a certificate of appealability. Id. at PageID 1751. The Warden did not object to that
recommendation and it may therefore be adopted by the Court.
Petitioner, however, raises a number of objections.

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Objection No. 1: The Magistrate Judge did not find that federal courts should respect
Ohio’s rule that each sentence for each count must be considered in isolation from the
other counts (Objections, Doc. No. 24, PageID 1758).
In his First Objection Craycraft argues this Court must “respect” the Ohio Supreme
Court’s rejection of the sentencing package doctrine and that the Report does not do so. To the
contrary, what the Report refuses to do is to apply Ohio’s count-by-count rule de novo. The
Twelfth District Court of Appeals was faced with precisely this argument: that Ohio’s rejection
of the sentencing package doctrine required a finding of vindictiveness in the increased sentence.
It rejected that argument, concluding that the count-by-count rule did not invalidate the new
sentence. That is the ruling on a question of state law which this Court is bound to accept. We
have no warrant to apply a principle of Ohio law to overrule an Ohio court of appeals’
application of that principle. The Supreme Court of Ohio could have done so on appeal from the
Twelfth District, but declined to review the Twelfth District’s application of its Johnson decision
in this case.

Objection No. 2: The Magistrate Judge was incorrect when he wrote that “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.” Report, Doc. 20, PageID
1744 (Objections, Doc. No. 24, PageID 1760).
The Objection correctly points out that the two third-degree felony counts of domestic
violence were merged into the felonious assault counts on remand (Re-Sentencing Judgment,
Return of Writ, Doc. No. 9, PageID 370). This correction has no impact on the ultimate
conclusion that habeas relief is not warranted.

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Objection No. 3: Pearce is not concerned with why the defendant won an appeal; the
presumption is triggered when the defendant challenges the trial court’s decision and wins
(Objections, Doc. No. 24, PageID 1760).

In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court created a
presumption of vindictiveness when a defendant receives a more severe sentence after remand
and retrial. Craycraft writes “Pearce exists because a defendant’s decision to appeal coupled
with success on that appeal triggers the presumption. Nothing in the Pearce rule considers the
reason for the appellate reversal.” (Objections, Doc. No. 24, PageID 1761.) The first of these
two sentences is accurate, but the second is not. The Supreme Court itself has recognized other
re-sentencing situations where the Pearce presumption does not apply or is rebutted. Texas v.
McCullough, 475 U.S. 134 (1986); Colten v. Kentucky, 407 U.S. 104 (1972); Chaffin v.
Stynchcombe, 412 U.S. 17, 25 (1973); Moon v. Maryland, 398 U.S. 319 (1970). In other words,
Pearce must be read in light of later Supreme Court case law interpreting Pearce and that later
case law considers the reasons for resentencing, including reversal on appeal.
Craycraft also quarrels with the Report’s characterization of State v. Johnson, supra, as
adopting “an entirely new analysis” of Ohio Revised Code § 2941.25, but admits it “may have
significantly changed” that interpretation (Objections, Doc. No. 24, PageID 1762). The point
seems to have been that Craycraft could possibly have won his first appeal under pre-Johnson
law. Id. The Magistrate Judge fails to see how that affects the analysis under Pearce.
Craycraft relies on this Magistrate Judge’s recommendation to grant the writ in Martin v.
Warden, 2012 U.S. Dist. LEXIS 36221 (S.D. Ohio Mar. 19, 2012). The claim made there, by the
same counsel who represents Craycraft here, was that direct appeal counsel was ineffective for
failing to raise a Pearce claim. The First District Court of Appeals had decided there was no
ineffective assistance of appellate counsel because Pearce was completely inapplicable to Ohio
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resentencings to properly impose post-release control. This Court found that to have been an
objectively unreasonable application of Pearce. However, the Magistrate Judge also wrote:
If the court of appeals had completed the Pearce analysis this Court
went through and determined the Pearce presumption did not apply
because it weighed the factors listed in McCullough differently
from this Court, that would not have been an objectively
unreasonable application of Pearce. Reasonable jurists could
disagree on whether the Supreme Court would apply the
presumption to a case like this. But that is not what the court of
appeals decided. They declined to apply Pearce vindictiveness
analysis at all because they regarded the resentencing as de novo
based on the voidness of the prior judgment — and Pearce leaves
no room for such an analysis.
Id. at *25. That is the distinction between this case and Martin. Here the Twelfth District did
weigh facts on the question of vindictiveness and found the presumption rebutted. State v.
Craycraft, 2012-Ohio-884, 2012 Ohio App. LEXIS 768 (12th Dist. Mar. 5, 2012). Thus the
Twelfth District’s decision here is precisely the type of decision to which this Court said in
Martin it would give AEDPA deference. If Martin is good law – and Craycraft argues it is – it
supports the Report, rather than undermining it.

Objection No. 4: None of the Pearce exceptions cited by the Magistrate Judge apply to this
case (Objections, Doc. No. 24, PageID 1763).

In his Fourth Objection, Craycraft argues none of the exceptions recognized by the
Supreme Court in McCullough, supra, is applicable to this case (Objections, Doc. No. 24,
PageID 1763). Petitioner is correct: none of the exceptions to Pearce recited by the Supreme
Court in McCullough reads directly on the facts of this case.

But the Supreme Court in

McCullough offered the examples it gave as illustrating a more general point: the Pearce rule is
a prophylactic rule, a “judicially created means of effectuating the rights secured by the

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[Constitution],” rather than a direct command of the Constitution itself. McCullough, 475 U.S.
at 138.- citing Stone v. Powell, 428 U.S. 465, 482 (1976), where the Court held the exclusionary
rule of Mapp v. Ohio, 367 U.S. 643 (1961), can be applied in habeas only if a defendant did not
have a fair opportunity to litigate his or her Fourth Amendment claims in state court. The
Supreme Court went on in McCullough to say the particular circumstances in which a higher
sentence is imposed after appeal must be examined in order to guard against vindictiveness and
Pearce is restricted to areas where its “objectives are thought must efficaciously served.” Id.,
citing Stone, 428 U.S. at 487. That is the process the Twelfth District followed in this case and
its results are not objectively unreasonable. Its results are, however, debatable among reasonable
jurists, which is why the Report recommends granting a certificate of appealability.

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice, but that Petitioner be
granted a certificate of appealability on the one ground for relief he pleads.

August 20, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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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).

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