Smith v. Warden Ross Correctional Institution

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying the Petition for writ of habeas corpus. This action is hereby DISMISSED. The Clerk shall enter judgment for Respondent. Signed by Judge Algenon L. Marbley on 08/18/2011. (cw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John W. Smith,

:
Petitioner

Michael Sheets, Warden
Respondent

Civil Action 2:10-cv-00195

:

v.

:

Judge Marbley

:

Magistrate Judge Abel

:

Order Adopting Report and Recommendation
Petitioner John W. Smith, a State prisoner, brings this action under 28 U.S.C.
§2254 alleging that he is in custody in violation of the Constitution of the United States
because he received a greater sentence after his original sentence was vacated on
appeal. Magistrate Judge Abel’s June 8, 2011 Report and Recommendation (doc. 12)
recommend that the petition be denied. This matter is before the Court on petitioner's
June 22, 2011 objections to the Report and Recommendation (doc. 13).
At trial, a jury found Smith guilty of kidnaping and rape. The facts underlying
the conviction are set out at pages 1-3 of the Report and Recommendation. Doc. 12,
PAGEID ## 946-48. The trial judge found that he was a sexual predator and sentenced
Smith to concurrent terms of seven years to life in prison. On appeal, the Supreme
Court of Ohio reversed the finding that Smith was a sexual predator and remanded for
re-sentencing. The trial court then sentenced Smith to nine years in prison for the

kidnaping and ten years on the rape conviction, for an aggregate sentence of nineteen
years.
Petitioner argues that on appeal he successfully demonstrated that the life
portion of his original sentence violated state law. When he was re-sentenced, the trial
court unlawfully punished him for that victory. Now his earliest release date has been
increased by 12 years.
The Report and Recommendation rejected that claim with the following
reasoning:
Here, the trial court initially imposed an aggregate term of seven
years to life incarceration. After the state appellate court overruled
Petitioner’s adjudication as a sexual predator, and after Petitioner’s
sentence was remanded for re-sentencing under State v. Foster, 109 Ohio
St.3d 1 (2006)(excising unconstitutional fact-finding provisions of Ohio’s
sentencing statutes), the trial court imposed ten years on Petitioner’s rape
conviction and nine years on the kidnaping conviction, for an aggregate
term of nineteen years.
The United States District Court for the Southern District of Ohio,
Western Division, has concluded that the Pearce presumption does not
apply where, as here, a trial court imposes a greater sentence pursuant to
a remand after Foster. Haverland v. Warden, 2010 WL 4702312. Further,
the United States Court of Appeals for the Sixth Circuit has concluded that
the Pearce presumption of vindictiveness does not apply where, as here,
the total sentence imposed is actually shorter than Petitioner’s initial
sentence. United States v. Rodgers, 278 F.3d 599, 604 (6th Cir.
2002)(citations omitted).
June 8, 2011 Report and Recommendation, pp. 10-11, Doc. 12, PAGEID ## 955-56.
Upon de novo review as required by 28 U.S.C. §636(b)(1)(B), the Court ADOPTS
the Report and Recommendation.

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The petition for writ of habeas corpus is DENIED. This action is hereby
DISMISSED. The Clerk of Court is DIRECTED to enter JUDGMENT for respondent.

s/Algenon L. Marbley
Algenon L. Marbley, Judge
United States District Court

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