                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0805n.06

                                             Case No. 14-4174

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                                FILED
                                                                                        Dec 10, 2015
JEREMIAH CRAYCRAFT,                                          )                      DEBORAH S. HUNT, Clerk
                                                             )
        Petitioner-Appellant,                                )
                                                             )          ON APPEAL FROM THE
v.                                                           )          UNITED STATES DISTRICT
                                                             )          COURT FOR THE SOUTHERN
BRIAN COOK,                                                  )          DISTRICT OF OHIO
                                                             )
        Respondent-Appellee.                                 )
                                                             )
                                                             )                                  OPINION


BEFORE:          COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*

        COLE, Chief Judge. An Ohio jury convicted Jeremiah Craycraft of felonious assault,

child endangerment, and domestic violence after he physically abused his newborn twins.

Craycraft was sentenced to 22 years’ imprisonment. But he appealed, reaped the benefit of an

intervening change in Ohio law, and was ultimately resentenced to a 16-year term.                          Still

dissatisfied with this result, Craycraft appealed once more, arguing that his revised sentence was

tainted by judicial vindictiveness. See North Carolina v. Pearce, 395 U.S 711 (1969). The Ohio

Court of Appeals disagreed and affirmed his sentence on direct appeal. Craycraft then sought a

writ of habeas corpus in federal district court, renewing his Pearce claim. The district court


*
 The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by
designation.
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denied his petition. Because the Ohio Court of Appeals reasonably applied clearly established

federal law, we affirm.

                                                   I.

       On March 8, 2007, Staci Kraft gave birth to twins, K.C. and S.C. Craycraft is their father

and, at times, he would care for the newborns while Kraft worked. Over the course of the next

two months, however, K.C. and S.C. sustained a litany of injuries on Craycraft’s watch. In all,

K.C. suffered a broken wrist, a subdural hematoma, and forehead swelling and bruising, while

S.C. endured a fractured femur and ribs, a subdural hematoma, a torn frenulum, and orbital

bruising. See State v. Craycraft, No. CA2009-02-013, 2010 WL 610601, at *13–16 (Ohio Ct.

App. Feb. 22, 2010). A few months later, a grand jury in Clermont, Ohio, indicted Craycraft on

two counts each of felonious assault, second- and third-degree child endangerment, and domestic

violence. See Ohio Rev. Code §§ 2903.11(A)(1), 2919.22(A), 2919.22(B)(1), 2919.25(A). After

a jury trial, he was found guilty on all counts.

       The trial court sentenced Craycraft to 22 years’ imprisonment. The court first imposed

two six-year terms for the felonious assault convictions, then merged the second- and third-

degree child endangerment convictions and imposed two five-year terms, with all sentences

running consecutively. As for the domestic violence convictions, the court imposed two four-

year terms, to be served concurrent to the sentences for the other charges.

       Craycraft appealed the trial court’s sentencing decision, arguing that it misapplied Ohio’s

multiple-count statute. Craycraft, 2010 WL 610601, at *17. According to Craycraft, the court

should have merged all of his convictions because, under Ohio Revised Code § 2941.25,

felonious assault, child endangerment, and domestic violence are all “of similar import.” Id.

The Ohio Court of Appeals affirmed. Under State v. Cabrales, 886 N.E.2d 181 (Ohio 2008), the


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court was only required to “compare the elements of the offenses in the abstract without

considering the evidence in the case.” Craycraft 2010 WL 610601, at *17. And, under this

rubric, the court determined that the elements of Craycraft’s offenses were “not so similar” in the

abstract as to require merger. Id. at *19.

       While Craycraft’s appeal was pending in the Ohio Supreme Court, however, an

intervening decision came down. In State v. Johnson, 942 N.E.2d 1061 (Ohio 2010), the state

high court overruled the “abstract elements” test and held that “[w]hen determining whether two

offenses are . . . subject to merger under [§] 2941.25, the conduct of the accused must be

considered.” Id. at 1069. Accordingly, the court summarily reversed and remanded Craycraft’s

case to the intermediate appellate court on the sentencing issue. State v. Craycraft, 944 N.E.2d

220 (Ohio 2010).

       On remand, the Ohio Court of Appeals recognized that “it is possible to commit the

offenses of felonious assault, second- and third-degree child endangering, and domestic violence

with the same conduct.” State v. Craycraft, 953 N.E.2d 337, 339 (Ohio Ct. App. 2011). The

court determined that, under Johnson, Craycraft’s offenses were “of similar import and must be

merged,” then remanded for further proceedings. Id. at 340.

       Back in the trial court, the same judge conducted a de novo resentencing and, after a full

hearing, imposed two back-to-back eight-year terms for the felonious assault counts, then

merged the rest. In sum, Craycraft received 16 years’ imprisonment—a net six-year reduction.

       Undeterred, Craycraft filed another appeal, this time arguing that the trial court violated

his Fourteenth Amendment right to Due Process under Pearce by “increasing the sentence he

received on each felonious assault offense from a six-year prison term to an eight-year prison

term.” State v. Craycraft, No. CA2011-04-029, 2012 WL 699577, at *2 (Ohio Ct. App. Mar. 5,


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2012). The Ohio Court of Appeals, once more, disagreed and affirmed Craycraft’s sentence. Id.

at *2–4. This was the final decision of the state courts, as the Ohio Supreme Court declined his

subsequent appeal. See 28 U.S.C. § 2254(b); State v. Craycraft, 969 N.E.2d 1231 (Ohio 2012)

(table decision).

        In 2013, Craycraft filed this petition for habeas corpus in the Southern District of Ohio,

renewing his judicial vindictiveness claim. The district court dismissed the petition, but granted

a certificate of appealability.

                                                  II.

        We review the district court’s legal conclusions de novo. Goodell v. Williams, 643 F.3d

490, 495 (6th Cir. 2011). The Ohio Court of Appeals decided Craycraft’s Pearce claim on the

merits. See 28 U.S.C. § 2254(d). Accordingly, in order to obtain relief under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Craycraft must establish that the state

court’s “adjudication of the claim . . . 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.” 28 U.S.C. § 2254(d)(1).

        “[C]learly established Federal law,” for purposes of AEDPA, refers to the Court’s

“holdings, as opposed to [its] dicta.” Williams v. Taylor, 529 U.S. 362, 412 (2000). Craycraft

does not develop any argument that the state court’s decision was in fact “contrary to” any of the

Court’s precedents. See 28 U.S.C. § 2254(d)(1); Cullen v. Pinholster, 563 U.S. 170, 182 (2011).

Accordingly, we restrict our review to AEDPA’s unreasonable-application clause. See Metrish

v. Lancaster, 133 S. Ct. 1781, 1786 n.2 (2013).

        A state court’s decision amounts to an “unreasonable application” of clearly established

federal law if it “identifies the correct governing legal principle from [the] Court’s decisions but


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unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at

413. As the Supreme Court has made crystal clear, we may not grant the writ under AEDPA’s

unreasonable-application clause unless the state court’s ruling “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.”     White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)).

                                               III.

       Our role is limited. We simply ask whether the Ohio Court of Appeals’ decision on the

merits unreasonably applied clearly established Supreme Court precedent. Here, the state court

reasoned that Pearce did not apply to Craycraft’s sentence and that the record was devoid of

evidence of judicial vindictiveness. Craycraft, 2012 WL 699577, at *3, 4. We cannot say that

this decision was mistaken “beyond any possibility for fairminded disagreement.”              See

Harrington, 562 U.S. at 103. Quite to the contrary, it is Craycraft who elides over 40 years of

clearly established Supreme Court precedent. See Goodell, 643 F.3d at 497.

                                               A.

       A brief review is in order. In Pearce, the Supreme Court considered the “constitutional

limitations . . . upon the general power of a judge to impose upon reconviction a longer prison

sentence than the defendant originally received.” 395 U.S. at 719. “Due process of law,” the

Court held, “requires that vindictiveness against a defendant for having successfully attacked his

first conviction must play no part in the sentence he receives after a new trial.” Id. at 725.

Because “the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of

the right to appeal,” the Court continued, “due process also requires that a defendant be freed of

apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. To ensure


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the absence of these unconstitutional conditions, the Court fashioned a prophylactic presumption:

“[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the

reasons for his doing so must affirmatively appear.” Id. at 726.

       Although Pearce itself announced “a rule of sweeping dimension,” the Court

subsequently clarified that the presumption of vindictiveness “do[es] not apply in every case

where a convicted defendant receives a higher sentence” on remand. See Alabama v. Smith, 490

U.S. 794, 799 (1989) (quoting Texas v. McCullough, 475 U.S. 134, 138 (1986)). Thus, Pearce

no longer comes into play “whenever a judge imposes a more severe sentence” the second time

around. See Pearce, 395 U.S. at 726. Rather, the Court has circumscribed the rule’s scope to

“areas where its ‘objectives are thought most efficaciously served.’” McCullough, 475 U.S. at

138 (quoting Stone v. Powell, 428 U.S. 465, 487 (1976)). In each case, the Court looks to “the

need, under the circumstances, to ‘guard against vindictiveness in the resentencing process,’” id.

(quoting Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973)), and applies the presumption only

where there is a “reasonable likelihood” that the increased sentence is the product of “actual

vindictiveness” on the part of the sentencing judge. Smith, 490 U.S. at 799–800.

                                                B.

       For starters, Craycraft argues that, on a pure count-by-count basis, he received a more

severe sentence following his successful appeal. He insists that Pearce required the state court to

compare his original felonious assault sentence—12 years—with his subsequent felonious

assault sentence—16 years.      This four-year increase, he says, triggers the presumption of

vindictiveness. Although the Ohio court did not address this theory head on, we must consider

any arguments that “could have supported” its decision. See Harrington, 562 U.S. at 102.




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       Craycraft has not identified a single Supreme Court precedent in support of his argument.

This dearth underscores a stark reality—as we have held, the Pearce presumption does not apply

when a defendant is resentenced to an equal or lesser aggregate term. See United States v.

Rodgers, 278 F.3d 599, 604 (6th Cir. 2002). “In determining whether the resentence term is . . .

longer than . . . the original sentencing term,” we “compare the total resentence term with the

total original sentence.” Rodgers, 278 F.3d at 604. Here, Craycraft’s total original sentence was

22 years and his resentence term was 16 years—a net decrease of six years. This net reduction

cannot genuinely be called a “more severe sentence” under Pearce.

       In fact, no federal court has adopted Craycraft’s methodology. Rather, the majority of

circuits follow the aggregate approach. See, e.g., United States v. Pimienta-Redondo, 874 F.2d

9, 15 (1st Cir. 1989) (en banc); Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir. 1990); United States v.

Gray, 852 F.2d 136, 138 (4th Cir. 1988); United States v. Campbell, 106 F.3d 64, 68 (5th Cir.

1997); United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987); United States v. Evans, 314

F.3d 329, 334 (8th Cir. 2002); United States v. Bay, 820 F.2d 1511, 1513 (9th Cir. 1987); United

States v. Sullivan, 967 F.2d 370, 374–75 (10th Cir. 1992). And, at best, two circuits apply a

“remainder” aggregate approach. See United States v. Markus, 603 F.2d 409, 413 (2d Cir.

1979); United States v. Monaco, 702 F.2d 860, 885 (11th Cir. 1983). Given this legal landscape,

we cannot say the Ohio Court of Appeals unreasonably applied Supreme Court precedent.

       Next, Craycraft argues that the Ohio Court of Appeals unreasonably applied Pearce by

suggesting that “the presumption of vindictiveness [does not] automatically appl[y] when a

defendant is resentenced following a remand for the application of” an intervening change in

law. See Craycraft, 2012 WL 699577, at *3. He asserts that “[n]othing in Pearce or any of its

progeny gives any weight to why” the defendant was resentenced. He is wrong.


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       As discussed above, the applicable standard is a general one: Pearce applies, on a case-

by-case basis, only where a reasonably likely incentive to retaliate exists. See, e.g., Smith,

490 U.S. at 799; McCullough, 475 U.S. at 138–39; United States v. Goodwin, 457 U.S. 368, 373

(1982); Chaffin, 412 U.S. at 27–28; Colten v. Kentucky, 407 U.S. 104, 116–17 (1972). And, for

purposes of AEDPA, “[t]he more general the rule, the more leeway courts have in reaching

outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

       As the Ohio Court of Appeals recognized in this case, it is highly implausible that

Craycraft’s sentence was the product of actual vindictiveness. See Craycraft, 2012 WL 699577,

at *3. The Ohio Supreme Court unexpectedly changed the law of allied-offense sentencing

while Craycraft’s appeal was pending. See Johnson, 942 N.E.2d 1069. This intervening cause

dispelled any hint of vindictiveness: On remand, the trial court had “no personal stake” in the

prior sentence and “no motivation to engage in self-vindication” because it was not reversed for

committing error. See Chaffin, 412 U.S. at 27. And surely, the court was not “asked to do over

what it thought it had already done correctly” because at the original sentencing hearing it

followed then-existing law to a tee. See Colten, 407 U.S. at 117.

       This was not an unreasonable application of the Court’s precedents, as fairminded jurists

could have reached the same result. See United States v. Singletary, 458 F.3d 72, 77 (2d Cir.

2006) (holding that an “intervening change in law . . . can itself justify an increased sentence on

remand, thereby precluding application of the Pearce presumption”); cf. Wasman v. United

States, 468 U.S. 559, 571 (1984) (holding that intervening conduct may be used to rebut the

presumption of vindictiveness).

       Absent Pearce’s aid, the burden remained on Craycraft to prove actual vindictiveness.

See Smith, 490 U.S. at 799–800. Yet he did not point to any evidence of actual vindictiveness in


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the record. As the Ohio Court of Appeals reasonably concluded, Craycraft failed to carry his

burden. See Craycraft, 2012 WL 699577, at *3.

                                                 IV.

       Craycraft was originally sentenced to 22 years’ imprisonment and, following an

intervening change in Ohio law, he was resentenced to a reduced term of 16 years. The Ohio

Court of Appeals held that his revised sentence did not trigger the Pearce presumption of

vindictiveness, nor was there any evidence of actual vindictiveness in the record. Because this

decision was not an unreasonable application of clearly established federal law, AEDPA requires

us to affirm the district court’s dismissal of Craycraft’s habeas petition.




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