                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0033p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                             Petitioner-Appellant, -
 KENNETH D. LINSCOTT,
                                                      -
                                                      -
                                                      -
                                                          No. 04-3474
         v.
                                                      ,
                                                       >
 NORMAN ROSE, Warden,                                 -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                       for the Northern District of Ohio at Akron.
                 No. 03-01178—Patricia A. Gaughan, District Judge.
                                       Submitted: September 14, 2005
                                    Decided and Filed: January 3, 2006*
                      Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.
                                             _________________
                                                   COUNSEL
ON BRIEF: Nathan A. Ray, Akron, Ohio, for Appellant. Thelma Thomas Price, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for
Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        JULIA SMITH GIBBONS, Circuit Judge. Kenneth D. Linscott, an Ohio state prisoner
convicted of two counts of gross sexual imposition, appeals the district court decision denying his
petition for a writ of habeas corpus. Linscott’s petition challenges the use of a court-ordered, pretrial
psychiatric evaluation at sentencing. Linscott claims the use of the psychiatric evaluation violated
his Fifth Amendment privilege against self-incrimination. The district court held that Linscott’s
claim was barred under the one-year statute of limitations imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A). As explained below,
we find that Linscott’s petition was timely. Nonetheless, after reviewing the merits of Linscott’s
petition, we affirm the district court’s decision to deny the petition.



         *
         This decision was originally issued as an “unpublished decision” filed on January 3, 2006. The court has now
designated the opinion as one recommended for full-text publication.


                                                         1
No. 04-3474           Linscott v. Rose                                                        Page 2


                                                  I.
        After Linscott was indicted on two counts of gross sexual imposition, he initially pleaded
not guilty and not guilty by reason of insanity. Upon entry of his not-guilty-by-reason-of-insanity
plea, the Ohio trial court ordered Linscott to undergo a psychiatric evaluation pursuant to Ohio
Revised Code § 2945.371. A final report of the psychiatric evaluation, which was conducted by a
psychodiagnostic clinic, was addressed and sent to the trial judge. The report indicates that Linscott
was informed that the results of the evaluation would not be confidential and would be summarized
in a report to the court. The record does not reflect whether Linscott received a Miranda warning
prior to the evaluation.
         Following a plea agreement, Linscott pleaded guilty to both offenses. On December 28,
1999, the Ohio trial court sentenced Linscott to five years of community control and classified him
as a sexual predator. As part of the community control program, Linscott was required to
successfully complete the Volunteers of America New Life Sex Offender (“VOA”) rehabilitation
program in Cincinnati, Ohio. During sentencing, the trial judge told Linscott, “[I]f you do not
complete this program or there’s any deviation from the condition I have set here, the sentence in
this matter will be five years consecutive. . . . The maximum I can impose is five on each count and
I will run them consecutive.” The trial judge continued, “No violations of these orders whatever,
and if there are any, once again, it will be ten years, you won’t have to go through all these various
steps and procedures.” The trial court acknowledged that it had considered the psychiatric
evaluation in making its determination.
        On January 12, 2000, Linscott was discharged from the VOA program because of several
violations and an inability to adjust to the program. On February 20, 2000, the trial court held that
Linscott had violated the terms of his community control and sentenced him to serve two
consecutive five-year prison terms. At the hearing, the trial judge again noted that the psychiatric
evaluation had been considered. The trial court also noted that it had considered a report that the
VOA program had prepared after discharging Linscott.
         Linscott timely appealed both his sentence and his sexual predator classification in state
court. The Ninth District Court of Appeals of Ohio consolidated these appeals, in which Linscott
raised five assignments of error. Linscott’s second assignment of error, which forms the basis of
his federal habeas petition, challenged the use of the court-ordered, psychiatric evaluation during
sentencing. On January 10, 2001, the Ninth District Court of Appeals ruled on the appeal. The
appellate court denied Linscott’s first assignment of error, which pertained to a denial of rights to
which Linscott claimed he was entitled because of his mental disabilities. Upon reaching the second
assignment of error, which concerned the use of the psychiatric evaluation, the court stated that,
pursuant to Ohio appellate procedure, “this Court’s disposition of the first assignment of error
renders Defendant’s second assignment of error moot and accordingly, it will not be addressed.”
State v. Linscott, No. 20021, 2001 WL 22304, *7 (Ohio Ct. App. Jan. 10, 2001). The appellate court
did sustain Linscott’s third assignment of error, which concerned sentencing, and his fourth
assignment of error, which concerned the sexual predator classification, and remanded the case for
resentencing and redetermination of the sexual predator classification.
        Linscott appealed the Ninth District Court of Appeals’ affirmance of his conviction to the
Ohio Supreme Court. In his appeal, Linscott advanced three propositions of law in support of
jurisdiction, of which none concerned the constitutionality of using the psychiatric evaluation at
sentencing. On May 23, 2001, the Ohio Supreme Court denied the appeal.
        On March 13, 2001, Linscott was resentenced to two consecutive five-year prison terms.
As in the December 28, 1999 and February 25, 2000 sentencing hearings, the trial judge referenced
the psychiatric evaluation.
No. 04-3474           Linscott v. Rose                                                           Page 3


       Linscott timely appealed his March 13, 2001 resentencing to the Ninth District Court of
Appeals. He again raised the psychiatric evaluation claim as one of his three assignments of error.
On October 31, 2001, the appellate court overruled each of Linscott’s assignments of error and
affirmed the trial court’s resentencing order. In so doing, the Ohio appellate court declined to reach
Linscott’s psychiatric evaluation claim. The appellate court stated:
        Linscott has asserted in his first assignment of error that the trial court erred in
        considering the psychodiagnostic report which was compiled as a result of his not
        guilty by reason of insanity plea, and the VOA termination report, in sentencing and
        adjudicating him a sexual predator. Linscott previously raised this argument with
        respect to the psychodiagnostic report in his first appeal. See Linscott I, supra, at
        12-13. This Court declined to address the issue in Linscott I, finding it moot based
        upon the disposition of another assignment of error. It appears that Linscott has
        attempted to argue that this Court should now address the issue because in Linscott
        I we did not state this Court's reasons for finding the assignment of error moot. As
        this Court's decisions in Linscott I are now the law of the case, we decline the
        invitation to revisit the issue. See Nolan v. Nolan (1984), 11 Ohio St. 3d 1, 3
        (explaining that “the doctrine [of the law of the case] provides that the decision of
        a reviewing court remains the law of that case in a case on the legal questions
        involved for all subsequent proceedings in the case at both the trial and reviewing
        levels”).
State v. Linscott, No. 20525, 2001 WL 1339485, *2 (Ohio Ct. App. Oct. 31, 2001). Linscott filed
a motion to reconsider, which was denied. Linscott then appealed his resentencing to the Ohio
Supreme Court. Linscott raised the psychiatric evaluation claim in this appeal. On March 4, 2002,
the Ohio Supreme Court declined jurisdiction and dismissed Linscott’s appeal.
       On January 29, 2002, Linscott filed an application to reopen his direct appeal, pursuant to
Ohio Rule of Appellate Procedure 26(B), on the ground of ineffective assistance of appellate
counsel. The Rule 26(B) application was denied by the appellate court on February 25, 2002. On
April 10, 2002, Linscott appealed this denial of his Rule 26(B) application. On June 12, 2002, the
Ohio State Supreme Court dismissed Linscott’s Rule 26(B) application as not involving any
substantial constitutional question.
        On June 11, 2003, Linscott filed a petition for a writ of habeas corpus in the United States
District Court for the Northern District of Ohio. The district court denied the petition and denied
issuance of a certificate of appealability on March 3, 2004. Linscott filed a request for a certificate
of appealability with the Sixth Circuit. A partial certificate of appealability, required pursuant to
28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1), was granted by this court for a single issue:
“whether the use at sentencing of Linscott’s statements made during a pre-trial mental examination
violated his right against self-incrimination.”
                                                   II.
        We review the district court’s factual findings for clear error and its decision to grant or deny
the writ of habeas corpus de novo. Barker v. Yukins, 199 F.3d 867, 870 (6th Cir. 1999).
                                                   A.
         A person in custody pursuant to the judgment of a state court must file his application for
a writ of habeas corpus within one year of the date on which the judgment became final by either
the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C.
§ 2244(d)(1)(A). The one-year statute of limitations does not begin to run until the time for filing
a petition for a writ of certiorari for direct review in the United States Supreme Court has expired.
No. 04-3474            Linscott v. Rose                                                           Page 4


Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (citing Isham v. Randle, 226 F.3d 691, 694-95
(6th Cir. 2000)). The time limitation is tolled during the pendency of an application to reopen
pursuant to Ohio R. App. Pro. 26(B). See Bronaugh, 235 F.3d at 286.
         We have previously examined both the tolling of and the relevant start date for the
§ 2244(d)(1)(A) one-year statute of limitations in the context of state post-conviction relief. See
Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001); Bronaugh, 235 F.3d at 285. We have not,
however, had occasion to determine the relevant start date for the limitations period for a challenge
to an alleged constitutional error that occurred upon resentencing. Cf. Allen v. Yukins, 366 F.3d 396,
400 (6th Cir. 2004) (declining to reach the related question of when the statute of limitations period
begins to run on a habeas petition that challenges two convictions that became final at different
times).
        We now hold that the one-year statute of limitations begins to run on a habeas petition that
challenges a resentencing judgment on the date that the resentencing judgment became final, rather
than the date that the original conviction became final. See Walker v. Crosby, 341 F.3d 1240, 1246
(11th Cir. 2003); Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000). The plain language of
AEDPA dictates this result where the “judgment” being challenged is the resentencing judgment.
See 28 U.S.C. § 2244(d)(1)(A) (“The limitation period shall run from the . . . the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review.”); cf. Flynt v. Ohio, 451 U.S. 619, 620 (1981) (per curiam) (“Applied in the context
of a criminal prosecution, finality is normally defined by the imposition of the sentence.”).
         In addition, we disagree with the district court’s reasoning that, because Linscott raised the
psychiatric evaluation claim in his first direct appeal, the conclusion of the first- rather than second-
direct appeal was the relevant “final judgment” for AEDPA purposes. While Linscott claimed on
his first direct appeal that the use of the psychiatric evaluation at sentencing was unconstitutional,
the Ohio appellate court remanded his case for resentencing without addressing this claim.
Linscott’s claim on his second direct appeal, which forms the basis of his present habeas claim, was
that the March 13, 2001 resentencing violated his constitutional rights through the, albeit repeated,
use of the psychiatric evaluation. The alleged constitutional error, therefore, did not even occur until
his March 13, 2001 resentencing. See Hepburn, 215 F.3d at 1209 (“AEDPA cannot be interpreted
to require a prisoner to raise claims before they arise, including claims that originate in the context
of resentencing.”).
        We find that Linscott’s relevant direct appeal was not completed in state court until March
4, 2002, the date on which the Ohio Supreme Court denied review of Linscott’s second direct
appeal. Linscott’s petition for a writ of certiorari in the United States Supreme Court was therefore
due on June 3, 2002. Since the limitations period was tolled between January 29, 2002 and June 12,
2002, during which time Linscott’s Rule 26(B) application was pending in state court, the one-year
clock effectively started to run on June 12, 2002. Thus, Linscott’s June 11, 2003 habeas petition was
timely.
                                                   B.
        The State argues, as it did to the district court, that we should find that Linscott’s psychiatric
evaluation claim was procedurally defaulted. If Linscott defaulted his psychiatric evaluation claim
pursuant to an independent and adequate Ohio state procedural rule, federal habeas review would
be barred unless Linscott demonstrated cause for the default and actual prejudice resulting from the
use of the psychiatric evaluation, or that our failure to consider his claim would result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986).
No. 04-3474           Linscott v. Rose                                                          Page 5


        The district court did not consider whether Linscott’s psychiatric evaluation claim was
subject to procedural default. Moreover, the record is less than clear as to whether the Ohio courts
found Linscott’s claim was procedurally defaulted and, if so, whether such a ruling was proper.
During Linscott’s first direct appeal, the Ohio appellate court stated only that Linscott’s psychiatric
evaluation claim was rendered “moot and accordingly [would] not be addressed.” When reviewing
Linscott’s second direct appeal, the same Ohio court “decline[d] the invitation to revisit the issue”
because its mootness decision in the first direct appeal was then the “law of the case.”
        We need not decide whether the Ohio appellate court found that Linscott’s claim was
procedurally defaulted nor whether Linscott’s claim was actually subject to procedural default.
“[A]s the Supreme Court has pointed out, the doctrines of exhaustion and procedural default raise
only federal-state comity concerns and are not a jurisdiction[al] limitation o[n] the power of the
court.” Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991) (citing Granberry v. Greer, 481 U.S.
129, 131-36 (1987)). We find it difficult, based on the limited record before us, to effectively
evaluate whether the Ohio court properly concluded, if it concluded at all, that Linscott procedurally
defaulted his psychiatric evaluation claim. Cf. Hill v. Mitchell, 400 F.3d 308, 315 (6th Cir. 2005)
(citing Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001) (“[W]hen the record reveals that the
state court’s reliance upon its own rule of procedural default is misplaced, we are reluctant to
conclude categorically that federal habeas review of the purportedly defaulted claim is precluded.”)).
Therefore, we will not decide the procedural default issue because, even assuming that Linscott’s
claim was not defaulted, we would nevertheless affirm the district court’s decision.
                                                  C.
        Under 28 U.S.C. § 2254(d), a federal court applies de novo review to a petitioner’s habeas
claim if the claim was not adjudicated on the merits in state court proceedings. See Maples v.
Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (discussing Wiggins v. Smith, 539 U.S. 510 (2003));
Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001). Linscott claims that the use of the psychiatric
evaluation at resentencing violated his Fifth Amendment rights. Even if we were to decide that the
use of the psychiatric evaluation violated Linscott’s Fifth Amendment rights, however, that
constitutional “error would justify overturning [Linscott]’s sentence only if [Linscott] could
establish that the error ‘had substantial and injurious effect or influence in determining [his
sentence].’” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)). We will not address the merits of Linscott’s Fifth Amendment claim because we
are convinced that, even if the use at sentencing of the psychiatric evaluation violated the Fifth
Amendment, Linscott’s petition must be denied because he fails to show that the alleged error had
a substantial and injurious effect or influence on resentencing.
        During the initial sentencing, carried out pursuant to Linscott’s plea agreement, the Ohio trial
court clearly stated that Linscott would serve the maximum penalty if Linscott violated the terms
of that plea agreement. On December 28, 1999, the trial judge told Linscott, “[I]f you do not
complete this program or there’s any deviation from the condition I have set here, the sentence in
this matter will be five years consecutive. . . The maximum I can impose is five on each count and
I will run them consecutive.” Thus, the trial court indicated, over fourteen months before the
resentencing now being challenged, that if Linscott failed to successfully adhere to the plea
agreement, he would be resentenced to the maximum allowable term. Furthermore, the importance
that the trial court placed on Linscott’s squandering of a favorable opportunity is clear from the
transcript of the March 13, 2001 resentencing. The trial court noted that “[t]he Court did make great
efforts to try to get this offender help” and Linscott’s attorney “worked very diligently to obtain
[Linscott’s] admission to a very specialized treatment facility called the Volunteers of America.”
The trial court noted that it had referred Linscott to the VOA program “with the hopes that he would
be able to obtain help for his problem.” In summation, the judge court stated, “I told you at the time
in the original sentencing if you could not avail yourself of the treatment opportunity that your prior
No. 04-3474           Linscott v. Rose                                                          Page 6


counsel worked hard for you to obtain that I would impose a severe sanction.” It is thus clear from
the sentencing transcript that the trial court determined what sentence Linscott should receive based,
in large part, on the efforts to which the court had gone to provide him with help and Linscott’s
subsequent failure to fulfill his end of the plea agreement.
         In addition, the trial court based its sentencing decision on information obtained from sources
other than the psychiatric evaluation. First, the trial court noted that Linscott utilized a position of
trust in the commission of the charged offenses; specifically, he was the teacher of the children who
became the objects of his sexual imposition. Second, the trial court noted, in accordance with the
views of the Ohio Ninth District Court of Appeals, that the potential for recidivism was especially
high given the ages – eight and ten at the time of the offenses – of the child victims in the case.
Third, the trial court noted the psychological injury suffered by the victims as well as the victim
impact statement that had been submitted. In light of the weight that the trial court placed on these
sources, we do not believe that the trial court’s awareness of the psychiatric evaluation played a
major role in its sentencing decision.
        Finally, the information contained in the VOA report, which the trial judge also considered
upon resentencing and which is not a subject of this appeal, was far more damaging to Linscott than
the information contained in the psychiatric evaluation. The VOA report stated that, while he was
in the VOA program, Linscott “admitted to having ‘. . . over thirty (30) [child] victims. . .’.” No
similar admission by Linscott can be found in the psychiatric evaluation. During the March 13,
2001 resentencing, the trial judge specifically stated that the VOA report “is disturbing to me.” No
similar statement by the court was made concerning the psychiatric evaluation.
        Ultimately, the Ohio trial court imposed the sentence in question “because it would demean
the seriousness of th[e] offense and not adequately protect the public” to do otherwise. The
psychiatric evaluation “was neither the first nor the last opinion” the court heard in making its
decision and “was by no means the key to the State’s case” on the issue of proper sentence. Penry,
532 U.S. at 795-96. Accordingly, we believe that the consideration of the psychiatric evaluation,
even if erroneous, did not have a substantial and injurious effect or influence on the sentence
imposed. Therefore, we find that Linscott’s psychiatric evaluation claim must fail.
                                                  III.
        For the foregoing reasons, we hold that Linscott’s petition was timely. Nonetheless, we
affirm the decision of the district court to deny Linscott’s petition because Linscott cannot establish
that any error in resentencing had a substantial and injurious effect or influence on his sentence.
