                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 13a0024a.06

                 UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 KELLY L. VOLPE,
                                                 -
                            Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 11-4365
           v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 GININE TRIM, Warden,
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Columbus.
               No. 2:09-cv-790—James L. Graham, District Judge.
                                Argued: October 12, 2012
                         Decided and Filed: January 31, 2013
            Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*

                                   _________________

                                        COUNSEL
ARGUED: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                _____________________

                                 AMENDED OPINION
                                _____________________

        HELENE N. WHITE, Circuit Judge. Petitioner Kelly L. Volpe (Volpe), an Ohio
state prisoner, appeals the district court’s denial of her 28 U.S.C. § 2254 habeas corpus
petition. She argues that her state convictions of both operating a vehicle while under
the influence, Ohio Rev. Code § 4511.19(A)(1)(a), and aggravated vehicular homicide


        *
        The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                              1
No. 11-4365        Volpe v. Trim                                                       Page 2


as a proximate result of operating a vehicle while under the influence, id.
§ 2903.06(A)(1)(a), violate the federal Double Jeopardy Clause. We AFFIRM.

                                               I.

                                            A.

       The facts recounted by the state appellate court are undisputed:

               On the evening of February 24, 2006, two motorists in the
       northwest area of Columbus called 911 to report a person driving a
       pick-up truck erratically. One of the motorists saw that the driver was a
       woman and that there was also a child in the truck. Both motorists
       witnessed the truck jump up onto the curbed median on at least two
       occasions, frequently go left of center, and stop at stop lights far short of
       the intersections and then fail to move when the light changed to green
       without prompting from other motorists. One of the motorists followed
       the truck for half an hour, trying to help the police locate it. Before the
       police could find it, the truck went off the road, and crashed into a tree.

State v. Volpe, No. 06AP-1153, 2008 WL 928342, at *1 (Ohio Ct. App. 10th Dist. Apr.
8, 2008) (unpublished). Upon arriving at the crash scene, the police found Volpe,
intoxicated and trapped behind the truck’s steering wheel. Volpe’s daughter, found on
the ground on the other side of the truck, died three days later from multiple blunt-force
injuries consistent with a car accident. Id.

                                            B.

       An Ohio grand jury charged Volpe with: (1) two counts of aggravated vehicular
homicide (AVH) (one based on operating a vehicle while under the influence (OVI) and
one based on recklessly causing her daughter’s death), each with a specification that she
had been convicted, or pleaded guilty, of three or more prior OVI or equivalent
municipal offenses within the last six years; and (2) OVI with a specification that she
had been convicted, or pleaded guilty, of five or more equivalent offenses within the last
twenty years.

       Volpe proceeded to trial and the jury found her guilty of all three charges and
specifications. For sentencing purposes, the trial court merged the recklessness-based
No. 11-4365        Volpe v. Trim                                                      Page 3


AVH count with the OVI-based AVH count and sentenced Volpe to a ten-year prison
term for one AVH count plus a three-year prison term for the specification. The trial
court also sentenced Volpe to a thirty-month prison term for the OVI count plus a
five-year prison term for the specification. The trial court ordered the prison terms, for
both the offenses and specifications, to run consecutively; thus, Volpe received a total
prison term of twenty years and six months.

                                           C.

       On direct appeal, Volpe argued that the trial court erred when it imposed
consecutive prison terms for the AVH and OVI convictions—rather than merge them for
sentencing purposes—because the offenses were allied offenses of similar import under
Ohio’s multi-count statute, Ohio Rev. Code § 2941.25, which controls the inquiry
whether the state legislature intended cumulative punishments for the two offenses.
Volpe argued that this asserted error violated the Double Jeopardy Clause of the Fifth
Amendment, which prohibits the imposition of cumulative punishments for the same
offense unless the state legislature intended to authorize cumulative punishments.

       In April 2008, the state appellate court affirmed Volpe’s convictions and rejected
her double jeopardy claim:

               [A]ppellant contends in her first assignment of error that the trial
       court erred when it failed to merge the counts of . . . AVH . . . and OVI
       for purposes of sentencing. The concept of merger for sentencing
       purposes arises out of the double jeopardy provisions of both the United
       States and Ohio Constitutions. These provisions guard against
       successive prosecutions and cumulative punishments for the same
       offense.
       ...
              . . . [T]o determine whether cumulative punishments may be
       imposed for crimes that arise from a single criminal act, we must apply
       the Supreme Court of Ohio’s decision in State v. Rance, 710 N.E.2d 699
       (Ohio 1999). Under Rance, our analysis begins with R.C. 2941.25, the
       General Assembly’s “clear indication” of its intent to permit cumulative
       punishments for the commission of certain offenses. With that statute,
       the General Assembly permits multiple punishments if the defendant
       commits offenses of dissimilar import. If, however, the defendant’s
No. 11-4365       Volpe v. Trim                                                   Page 4


      actions constitute two or more allied offenses of similar import, the
      defendant may only be convicted (specifically, found guilty and
      punished) of only one. However, if offenses of similar import are
      committed separately or with a separate animus, the defendant may be
      punished for both.
              Thus, to determine whether appellant may be punished for both
      AVH and OVI, we must decide whether those offenses are allied
      offenses of similar import. In determining whether crimes are allied
      offenses of similar import, the Supreme Court of Ohio explained that
      “[c]ourts should assess, by aligning the elements of each crime in the
      abstract, whether the statutory elements of the crimes correspond to such
      a degree that the commission of one crime will result in the commission
      of the other.” The court explained that if the elements do so correspond,
      the defendant may not be convicted of both “unless the court finds that
      the defendant committed the crimes separately or with separate animus.”
      If they do not, the offenses are of dissimilar import, and the defendant
      may be punished for both.
             The jury found appellant guilty of two counts of AVH in violation
      of R.C. 2903.06. The trial court properly merged these two counts for
      purposes of sentencing and sentenced appellant only for one count. R.C.
      2903.06, the AVH statute, provides:
              (A) No person, while operating or participating in the
              operation of a motor vehicle, motorcycle, snowmobile,
              locomotive, watercraft, or aircraft, shall cause the death
              of another or the unlawful termination of another’s
              pregnancy in any of the following ways:
              (1)(a) As the proximate result of committing a violation
              of [R.C. 4511.19(A)] [(the OVI statute)] or of a
              substantially equivalent municipal ordinance[.]
              ***
              (2) * * * (a) Recklessly;
              ***
              [(3)] * * *
              (a) Negligently[.]

              Further, the AVH count also contained allegations of prior OVI
      convictions (three convictions within six years) that increased the
      severity of the count from a second-degree felony to a first-degree
      felony. When the existence of a prior conviction transforms the crime
No. 11-4365        Volpe v. Trim                                                       Page 5


       itself by increasing its degree, the prior conviction is an essential element
       of the crime. These prior convictions are, therefore, also elements that
       must be considered in the Rance analysis.
             Appellant was also found guilty of OVI in violation of R.C.
       4511.19(A)(1)(a). That statute provides:
               No person shall operate any vehicle, streetcar, or
               trackless trolley within this state, if, at the time of the
               operation, any of the following apply:
               The person is under the influence of alcohol, a drug of
               abuse, or a combination of them.
               Additionally, this count contained allegations of prior OVI
       convictions (five convictions within 20 years) that increased the severity
       of the count from a first-degree misdemeanor to a fourth-degree felony.
       These prior convictions are, therefore, also elements that must be
       considered in the Rance analysis.
               We find these counts of AVH and OVI are not allied offenses of
       similar import. Comparing the statutory elements of each offense in the
       abstract, they do not correspond to such a degree that the commission of
       one crime will result in the commission of the other. It is obvious that
       one could drive under the influence of alcohol, a drug of abuse, or a
       combination of them in violation of R.C. 4511.19 and not cause the death
       of another in violation of R.C. 2903.06. Additionally, one could drive
       recklessly or negligently and cause the death of another in violation of
       R.C. 2903.06 and not drive under the influence of alcohol, a drug of
       abuse, or a combination of them in violation of R.C. 4511.19. Finally,
       an individual who has three OVI convictions within six years, and
       therefore commits the first-degree felony form of AVH, does not
       necessarily commit the fourth-degree felony form of OVI, because that
       offense requires five such convictions within 20 years.
               One other appellate court has also determined that AVH and OVI
       are not allied offenses of similar import. Other courts have found similar
       offenses, aggravated vehicular assault and vehicular homicide, not to be
       allied offenses of similar import of OVI.
              Because the AVH and OVI offenses are not allied offenses of
       similar import, the trial court properly sentenced appellant on both
       counts. Appellant’s first assignment of error is overruled.

Volpe, 2008 WL 928342, at *13–15 (formatting altered; internal citations altered or
omitted).
No. 11-4365       Volpe v. Trim                                                     Page 6


       Volpe then filed a motion for reconsideration, relying on an Ohio Supreme Court
decision that was issued one day after the appellate court’s decision in her case. The
motion was denied:

               In her application for reconsideration, appellant argues we should
       reconsider our opinion in light of State v. Cabrales, 886 N.E.2d 181
       (Ohio 2008), which was released one day after we released our opinion
       in the case at bar. Appellant argues that Cabrales requires that we reach
       a different conclusion on the issue of whether the AVH count and the
       OVI count at issue here should merge for sentencing purposes. We
       disagree.
              Appellant correctly points out that Cabrales attempts to clarify
       the Rance test under R.C. 2941.25(A). Cabrales sets forth the following
       analysis:
              In determining whether offenses are allied offenses of
              similar import under R.C. 2941.25(A), courts are required
              to compare the elements of offenses in the abstract
              without considering the evidence in the case, but are not
              required to find an exact alignment of the elements.
              Instead, if, in comparing the elements of the offenses in
              the abstract, the offenses are so similar that the
              commission of one offense will necessarily result in
              commission of the other, then the offenses are allied
              offenses of similar import. (State v. Rance . . . , clarified.)

               Applying the Cabrales analysis to the case at bar, it is obvious
       that the commission of the OVI offense at issue here (a fourth degree
       felony violation of R.C. 4511.19[A]) will not necessarily result in the
       commission of an AVH offense because the OVI offense does not
       necessarily result in the death of another. The more difficult question is
       whether the commission of the AVH offense at issue here (proximately
       causing the death of another while operating a motor vehicle in violation
       of R.C. 4511.19[A]), necessarily results in the commission of the fourth
       degree felony violation of R.C. 4511.19(A). We conclude that it does
       not.
               In order to determine whether offenses are allied offenses of
       similar import under R.C. 2941.25(A), Cabrales requires that we
       compare the elements of the offenses in the abstract without considering
       the evidence in the case to determine whether the commission of one
       offense will necessarily result in the commission of the other. However,
       as the court clarified in Cabrales, an exact alignment of the elements is
       not required.
No. 11-4365       Volpe v. Trim                                                    Page 7


             Here, pursuant to R.C. 4511.19(A) and 4511.19(G)(1)(d), the
       elements of fourth degree felony OVI are:
              (1) operation of a vehicle;
              (2) under the influence of alcohol and/or drugs; and
              (3) with five or more prior OVI convictions or guilty pleas within
              20 years of the offense.
              Pursuant to R.C. 2903.06(B)(2)(c), the elements of the first
       degree felony AVH offense at issue here are:
              (1) causing death;
              (2) as a proximate result of an OVI offense;
              (3) while operating a vehicle;
              (4) while under suspension; or
              (5) having three prior OVI convictions or guilty pleas within the
              previous six years.
                Comparing the elements of these offenses in the abstract reveals
       that the commission of the first degree felony AVH does not necessarily
       result in the commission of the fourth degree felony OVI offense because
       this OVI offense requires five or more prior OVI convictions or guilty
       pleas within the last 20 years. The first degree felony AVH offense
       requires only three prior OVI convictions within the previous six years.
       Therefore, these offenses are not allied offenses of similar import under
       R.C. 2941.25(A), as interpreted by Rance, and clarified by Cabrales.

State v. Volpe, No. 06AP-1153 (Ohio Ct. App. 10th Dist. June 3, 2008) (PID 376–80;
R. 9-1) (formatting altered; internal citations altered or omitted). The Ohio Supreme
Court denied leave to appeal. See State v. Volpe, 893 N.E.2d 518 (Ohio 2008) (table
decision).

                                            D.

       In September 2009, Volpe timely filed this habeas action, raising the double
jeopardy claim that she exhausted in state court. A magistrate judge issued a report,
recommending denial of Volpe’s habeas petition on the basis that the state appellate
court’s determination that the state legislature intended to authorize cumulative
punishments for both AVH and OVI foreclosed habeas relief. Volpe v. Trim, No. 09-cv-
No. 11-4365         Volpe v. Trim                                                    Page 8


790, 2011 WL 5326073 (S.D. Ohio Sept. 26, 2011) (unpublished). The magistrate judge
noted that:

        In 2010, the Supreme Court of Ohio set forth a new test for determining
        whether two offenses are allied offenses of similar import pursuant to
        Ohio Rev. Code § 2941.25. See State v. Johnson, 942 N.E.2d 1061
        (Ohio 2010). Because [a federal] [c]ourt must assess the state court’s
        decision at the time it was issued, [I] will not consider this new test.

Id. at *9 n.1 (internal citation altered).

        After reviewing Volpe’s timely objections to the magistrate judge’s report, the
district court adopted the report insofar as it recommended denial of Volpe’s petition and
dismissed the action. See Volpe v. Trim, No. 09-cv-790, 2011 WL 5326069 (S.D. Ohio
Nov. 7, 2011) (unpublished). Volpe timely appealed, and the district court granted a
certificate of appealability.

                                             II.

                                             A.

        In a federal habeas appeal, “we review de novo the district court’s conclusions
on issues of law and on mixed questions of law and fact and review its factual findings
for clear error.” Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may
grant habeas relief only if the state court’s adjudication of a prisoner’s 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; or


        (2) resulted in a decision that was based on an unreasonable
        determination of the facts in light of the evidence presented in the State
        court proceeding.

28 U.S.C. § 2254(d).
No. 11-4365        Volpe v. Trim                                                    Page 9


       Only the first provision is at issue here, under which the term “clearly established
Federal law . . . refers to the holdings, as opposed to the dicta, of th[e Supreme Court]’s
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000) (internal quotation marks omitted). A state court’s decision is
“contrary to” clearly established federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413. An “unreasonable application” occurs when “the
state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

                                            B.

       The Double Jeopardy Clause of the Fifth Amendment, made applicable to the
states through the Fourteenth Amendment, provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see
Benton v. Maryland, 395 U.S. 784, 794 (1969). “The Double Jeopardy Clause ‘protects
against a second prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects against
multiple punishments for the same offense.’” Brown v. Ohio, 432 U.S. 161, 165 (1977)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989)). Only the last aspect, the protection
against multiple punishments, is at issue here.

       The Supreme Court has interpreted the multiple-punishments aspect of the
Double Jeopardy Clause as protecting defendants from being punished more than once
for a single act when the legislature does not intend for the punishments to be
cumulative. See Albernaz v. United States, 450 U.S. 333, 344 (1981). In other words,
“[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366
(1983); see White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 2009) (“The current
No. 11-4365        Volpe v. Trim                                                  Page 10


jurisprudence allows for multiple punishment for the same offense provided the
legislature has clearly indicated its intent to so provide, and recognizes no exception for
necessarily included, or overlapping offenses.”).        When two different statutory
provisions authorize punishment for the same act, “[t]he first step is to determine
whether [the legislature] intended to punish cumulatively the same conduct which
violates two statutes.” United States v. Johnson, 22 F.3d 106, 107–08 (6th Cir. 1994);
see Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“[T]he question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
intent.”).

        In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court
developed the “same elements” test to determine whether Congress has authorized
cumulative punishments: “The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Id. at 304. The Blockburger test, however, is
a “rule of statutory construction,” Albernaz, 450 U.S. at 340 (quoting Whalen v. United
States, 445 U.S. 684, 691 (1980)), “not a constitutional test in and of itself,” McCloud
v. Deppisch, 409 F.3d 869, 875 (7th Cir. 2005), as quoted in Palmer v. Haviland, 273 F.
App’x 480, 486 (6th Cir. 2008) (unpublished); see Hunter, 459 U.S. at 368 (explaining
that the Blockburger test, as modified by subsequent precedent, “is not a constitutional
rule requiring courts to negate clearly expressed legislative intent”). As a result, the
Blockburger test “does not necessarily control the inquiry into the intent of a state
legislature. Even if the crimes are the same under Blockburger, if it is evident that a
state legislature intended to authorize cumulative punishments, a court’s inquiry is at an
end.” Johnson, 467 U.S. at 499 n.8; accord Hunter, 459 U.S. at 368–69.

        Moreover, “[w]hen assessing the intent of a state legislature, a federal court is
bound by a state court’s construction of that state’s own statutes.” Banner v. Davis, 886
F.2d 777, 780 (6th Cir. 1989) (citing Hunter, 459 U.S. at 368; O’Brien v. Skinner, 414
U.S. 524, 531 (1974)). “Under the [D]ouble [J]eopardy [C]lause, when evaluating
No. 11-4365             Volpe v. Trim                                                                Page 11


whether a state legislature intended to prescribe cumulative punishments for a single
criminal incident, a federal court is bound by a state court’s determination of the
legislature’s intent.” Id. (citations omitted). “Thus, for purposes of double jeopardy
analysis, once a state court has determined that the state legislature intended cumulative
punishments, a federal habeas court must defer to that determination.”1 Id.; see
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“We have repeatedly held that
a state court’s interpretation of state law, including one announced on direct appeal of
the challenged conviction, binds a federal court sitting in habeas corpus.”); Jones v.
Sussex I State Prison, 591 F.3d 707, 710 (4th Cir. 2010) (“[W]hen the charged offenses
violate state law, the double jeopardy analysis hinges entirely on the state-law question
of what quantum of punishment the state legislature intended. Once a state court has
answered that state-law question, there is no separate federal constitutional standard
requiring that certain actions be defined as single or as multiple crimes.” (internal
citation and alteration omitted)).

                                                     C.

         To determine whether the Ohio General Assembly intended to authorize
cumulative punishments, Ohio courts apply the state’s multi-count statute, which
provides:

         (A) Where the same conduct by defendant can be construed to constitute
         two or more allied offenses of similar import, the indictment or
         information may contain counts for all such offenses, but the defendant
         may be convicted of only one.
         (B) Where the defendant’s conduct constitutes two or more offenses of
         dissimilar import, or where his conduct results in two or more offenses
         of the same or similar kind committed separately or with a separate
         animus as to each, the indictment or information may contain counts for
         all such offenses, and the defendant may be convicted of all of them.


         1
           To the extent this court has independently interpreted the scope of a state’s statutes in the double
jeopardy context, see, e.g., Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984) (en banc), it “appears limited to
a narrow situation in which the state courts below had failed to give a clear expression on the issue of
cumulative punishment,” Banner, 886 F.2d at 782. In Volpe’s direct appeal, the state appellate court
clearly determined that the legislature intended to authorize cumulative punishments for AVH and OVI;
thus, Pryor’s narrow exception is not applicable here.
No. 11-4365        Volpe v. Trim                                                  Page 12


Ohio Rev. Code § 2941.25. At the time of Volpe’s direct appeal, the Ohio Supreme
Court interpreted section 2941.25 to require a court to compare the elements of offenses
in the abstract to determine whether the offenses were of similar import. See Rance, 710
N.E.2d at 705. Specifically, Rance instructed the state courts to “assess, by aligning the
elements of each crime in the abstract, whether the statutory elements of the crimes
correspond to such a degree that the commission of one crime will result in the
commission of the other.” Id. (citation and internal quotation marks omitted). The Ohio
Supreme Court later clarified, one day after the appellate court’s decision in Volpe’s
case, that “nowhere does Rance mandate that the elements of compared offenses must
exactly align for the offenses to be allied offenses of similar import[.]” Cabrales, 886
N.E.2d at 186.

       Two years after Volpe exhausted her appellate remedies and while her habeas
petition was pending, the Ohio Supreme Court overruled Rance, stating that Rance’s “in
the abstract” test proved difficult in application and raised concern about the
“constitutional protection underlying the proper application of” section 2941.25.
Johnson, 942 N.E.2d at 1066–70. Under the heading “[p]rospective analysis of allied
offenses,” the Ohio Supreme Court announced a new interpretation of section 2941.25:

               [T]he court must determine prior to sentencing whether the
       offenses were committed by the same conduct. Thus, the court need not
       perform any hypothetical or abstract comparison of the offenses at issue
       in order to conclude that the offenses are subject to merger.
               In determining whether offenses are allied offenses of similar
       import under R.C. 2941.25(A), the question is whether it is possible to
       commit one offense and commit the other with the same conduct, not
       whether it is possible to commit one without committing the other. If the
       offenses correspond to such a degree that the conduct of the defendant
       constituting commission of one offense constitutes commission of the
       other, then the offenses are of similar import.
               If the multiple offenses can be committed by the same conduct,
       then the court must determine whether the offenses were committed by
       the same conduct, i.e., a single act, committed with a single state of mind.
              If the answer to both questions is yes, then the offenses are allied
       offenses of similar import and will be merged.
No. 11-4365            Volpe v. Trim                                                            Page 13


                Conversely, if the court determines that the commission of one
         offense will never result in the commission of the other, or if the offenses
         are committed separately, or if the defendant has separate animus for
         each offense, then, according to R.C. 2941.25(B), the offenses will not
         merge.

Id. at 1070 (reformatted; internal citations and quotation marks omitted).

                                                  III.

         The essential premises of Volpe’s appeal are that 1) we should apply Johnson’s
new interpretation of section 2941.25 in this federal habeas proceeding, notwithstanding
that the Ohio appellate court, applying the then-controlling Rance test,2 determined that
the Ohio General Assembly intended to permit cumulative punishments for both AVH
and OVI, and the Ohio Supreme Court did not disturb that ruling on direct appeal; and
2) applying Johnson, the two offenses are allied offenses of similar import. Because we
disagree with her first proposition, we do not reach her second.

                                                   A.

         In support of her proposition that Johnson “unbinds” this court from the state-
court ruling that the Ohio legislature intended to authorize cumulative punishments for
the two offenses, Volpe cites Walters v. Sheets, No. 2:09-cv-446, 2011 WL 4543889
(S.D. Ohio Sept. 29, 2011) (unpublished), in which a district court in this circuit
conditionally granted habeas relief to an Ohio state prisoner who challenged, on double
jeopardy grounds, his convictions of felony murder and felonious assault. In Walters,
the district court concluded that the Ohio Supreme Court’s decision in Johnson allowed
it to disregard the Ohio intermediate appellate court’s Rance-based decision issued in
the petitioner’s direct appeal, that felonious assault is not an allied offense of similar
import to felony murder. Id. at *3. The district court in Walters based its decision to


         2
           Although Cabrales clarified the Rance test with a somewhat narrowing interpretation, it
nevertheless reaffirmed that test, and subsequent Ohio cases continue to refer to the principles governing
the relevant inquiry as “the Rance test.” See, e.g., Cabrales, 886 N.E.2d at 56–61; State v. Parker,
917 N.E.2d 338, 436 (Ohio Ct. App. 3d Dist. 2009). We therefore use the term “the Rance test” to refer
to the test as announced in Rance and applied and clarified in its progeny, including Cabrales, which
controlled until overruled by Johnson.
No. 11-4365         Volpe v. Trim                                                   Page 14


disregard the state-court ruling on its reading of Banner v. Davis, 886 F.2d 777 (6th Cir.
1989), and its conclusion that, because Johnson interpreted the same statute that had
been applied in the petitioner’s direct appeal, it necessarily controlled the application of
that statute to the petitioner’s convictions:

                 When the Supreme Court of Ohio overrules its interpretation of
        a state statute, the correction has retroactive application. Agee v. Russell,
        751 N.E.2d 1043 (Ohio 2001). In reviewing a previous statutory
        interpretation the court is not creating new law, but rather deciding what
        the statute meant from its inception. Additionally, Johnson and Cabrales
        make clear that decisions of lower Ohio courts had misinterpreted Ohio’s
        statute governing allied offenses, thereby creating unreasonable results
        inconsistent with the Double Jeopardy Clause. Therefore, Johnson’s
        interpretation of Ohio Revised Code § 2941.25 has retroactive
        interpretation [sic].
                 Habeas courts are required to follow an Ohio court’s
        determination of the legislature’s intent only if it is undisturbed by the
        Supreme Court of Ohio. Banner, 886 F.2d at 780. Respondent is correct
        that in general a habeas court is required to follow an Ohio court’s
        determination of whether the Ohio legislature intended that a single act
        receive multiple punishments. Id. The Sixth Circuit, however, stated
        that the general rule applies only to an interpretation by a majority of a
        state’s courts “undisturbed” by the state’s highest court. Id. In this case,
        the Supreme Court of Ohio disturbed the former prevailing interpretation
        of Ohio Revised Code § 2941.25 through its holding in Johnson.
                Therefore, the interpretation of Ohio Revised Code § 2941.25 in
        Johnson applies retroactively to this case and convicting Petitioner of
        both felonious assault and felony murder violates Ohio’s statute and the
        Double Jeopardy Clause. In this case, multiple sentences for one offense
        is a result contrary to clearly established federal law which qualifies
        Petitioner for a writ of habeas corpus under AEDPA[.]

Id. at *4–5 (internal citations altered or omitted).

                                             B.

        We are not persuaded that Johnson controls our consideration of Volpe’s double
jeopardy claim. First, we do not find Walters persuasive. Banner does not suggest that
a federal habeas court is not bound by a state court’s legislative-intent determination
(made in a petitioner’s direct appeal of the challenged conviction and left undisturbed
No. 11-4365         Volpe v. Trim                                                   Page 15


by the state’s highest court in that appeal) if that ruling is later called into doubt by new
precedent issued by the state’s highest court after the petitioner has exhausted her state
appellate remedies. Second, Walters did not consider whether the Ohio courts have
applied Johnson retroactively; rather, the district court made its own determination that
the decision should be applied retroactively.

                                             1.

        Banner does not permit reexamination of state-law questions in habeas review.
In rejecting the petitioner’s double jeopardy claim, the Banner court reasoned:

        [T]he Tennessee Supreme Court affirmed the Tennessee Court of
        Criminal Appeals’ holding that the legislature intended cumulative
        punishment for aggravated assault and firing into an occupied dwelling.
        We are therefore bound by that holding. However much the magistrate
        and district court may have agreed with Judge Daughtrey’s dissent for
        the Tennessee Court of Criminal Appeals, the district court was obligated
        to honor the construction of the majority of judges [of the state appellate
        court] on this question of Tennessee law. Barring some other
        constitutional impediment, the majority view of that [state appellate]
        court, undisturbed by the Supreme Court of Tennessee, must be accepted
        as the law of Tennessee and the state law of this case.

Banner, 886 F.2d at 780 (emphasis added).

        When read in context, Banner—in relying on the fact that the state appellate
court’s ruling had been “undisturbed” by the state’s highest court—was referring to the
appellate process in that case.       Here, as in Banner, the state appellate court’s
determination of legislative intent was undisturbed by the state’s highest court on direct
appeal. Banner did not address the question we now face: Whether subsequent
precedent articulating a new view of the law, issued by the state’s highest court after a
petitioner has exhausted her appellate remedies, permits us to reexamine whether the
state legislature intended to authorize cumulative punishments, and whether, if such
reexamination is proper, the application of the new precedent is a question exclusively
confided to the state courts.
No. 11-4365          Volpe v. Trim                                                 Page 16


                                             2.

         The Constitution does not require that state-court decisions be applied
retroactively, see Wainwright v. Stone, 414 U.S. 21, 23–24 (1973); Bowen v. Foltz, 763
F.2d 191, 193–94 (6th Cir. 1985), and the retroactive application of new state decisional
law to a petitioner’s conviction after she has exhausted her appellate remedies is a state-
law question, on which the state courts have the last word. See Houston v. Dutton, 50
F.3d 381, 385 (6th Cir. 1995); see also Burleson v. Saffle, 278 F.3d 1136, 1140 (10th
Cir. 2002); Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 811 (3d Cir.
1981).

         Volpe has not applied for post-conviction relief in an Ohio state court seeking
the application of Johnson. We must therefore determine whether the Ohio courts have
applied or would apply Johnson retroactively. In Agee, a state habeas case on which
Walters relied, the Ohio Supreme Court held that new state supreme court precedent
interpreting a legislative enactment did not present a retroactivity problem because, in
issuing its decision, the court did not announce a new rule of law but merely had
determined what the statute had meant since its enactment. 751 N.E.2d at 1047. Agee
opined that its “conclusion [was] consistent with [the court’s prior] holding that[,] in the
absence of a specific provision in a decision declaring its application to be prospective
only, . . . [a decision of the Ohio Supreme Court] shall be applied retrospectively as
well.” Id. (citation, alteration and internal quotation marks omitted; formatting altered).

         Subsequent to Agee, the Ohio Supreme Court rejected the retroactive application
of new state supreme court precedent that involved the construction of its state
sentencing statutes, holding: “A new judicial ruling may be applied only to cases that
are pending on the announcement date. The new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has exhausted
all of [her] appellate remedies.” Ali v. State, 819 N.E.2d 687, 688 (Ohio 2004) (internal
citation omitted).

         Agee appears to be in tension with Ali. Nonetheless, assuming Agee applies, the
question is whether the Ohio Supreme Court in Johnson declared its ruling to be
No. 11-4365        Volpe v. Trim                                                Page 17


prospective only. In Johnson, the Ohio Supreme Court labeled its section concerning
its new test as a “[p]rospective analysis of allied offenses under R.C. 2941.25.” 942
N.E.2d at 1070. The court’s use of the term “prospective,” albeit without further
comment, suggests that its new test for allied offenses was not intended to be applied
retroactively. The court, however, did not engage in a retroactivity discussion. Nor did
it explain whether, by using the term “prospective,” its new test would apply only to
pending criminal matters.

       Given that the decisions of the Ohio Supreme Court point to no clear answer, we
look to the decisions of the Ohio appellate courts, which have consistently held that
Johnson does not apply retroactively to cases where the defendant has already exhausted
her appellate remedies. See, e.g., State v. Hughes, No. 12AP-165, 2012 WL 4503148,
at *3 (Ohio Ct. App. 10th Dist. Sept. 28, 2012); State v. Boyce, No. 11CA0095, 2012
WL 3542268, at *2 (Ohio Ct. App. 2d Dist. Aug. 17, 2012); State v. Boone, 975 N.E.2d
546, 556 (Ohio Ct. App. 10th Dist. 2012); State v. Pound, Nos. 24789, 24980, 2012 WL
3061455, at *3 (Ohio Ct. App. 2d Dist. July 27, 2012), leave denied, 978 N.E.2d 910
(table decision); State v. Dukes, Nos. 2011-P-0098, 2011-P-0099, 2012 WL 2522968,
at *2 (Ohio Ct. App. 11th Dist. June 29, 2012), leave denied, 977 N.E.2d 694 (2012)
(table decision); State v. Kelly, No. 97673, 2012 WL 2459149, at *3 (Ohio Ct. App. 8th
Dist. June 28, 2012); State v. Champion, No. 24782, 2012 WL 2061590, at *1 (Ohio Ct.
App. 2d Dist. June 8, 2012), leave denied, 976 N.E.2d 914 (2012) (table decision); State
v. Holliday, No. 11CAA110104, 2012 WL 1964026, at *2 (Ohio Ct. App. 5th Dist. May
29, 2012); State v. Hickman, No. 11-CA-54, 2012 WL 1744531, at *2 (Ohio Ct. App.
5th Dist. May 11, 2012), leave denied, 975 N.E.2d 1029 (2012) (table decision); State
v. Smith, No. 9-11-36, 2012 WL 1494285, at *5 (Ohio Ct. App. 3d Dist. Apr. 30, 2012),
leave denied, 974 N.E.2d 1210 (2012) (table decision); State v. Layne, No. 11CA17,
2012 WL 1247209, at *3 (Ohio Ct. App. 4th Dist. Apr. 5, 2012); State v. Parson, No.
24641, 2012 WL 601807, at *2 (Ohio Ct. App. 2d Dist. Feb 24, 2012); cf. Melson v.
Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir. 2005) (“In order to determine
how the state supreme court would rule, we look to the decisions of the state’s
No. 11-4365         Volpe v. Trim                                                  Page 18


intermediate courts unless we are convinced that the state supreme court would decide
the issue differently.”).

                                             3.

        Volpe argues that notwithstanding the Ohio courts’ determinations to the
contrary, the issue cannot be one of retroactivity because Johnson cannot have
announced new law. The argument proceeds as follows: the law at issue is a statute;
therefore, all the Ohio Supreme Court did in Johnson was make clear what the Ohio
General Assembly meant from the start. When a state’s highest court announces a new
rule of law, it considers whether to give that new law full retroactive, limited retroactive
or solely prospective effect. But when the court announces a new interpretation of a
statute, no retroactivity question arises because the law has not changed, only the court’s
interpretation. The statute has always expressed the same legislative intent; the court’s
earlier pronouncements were simply erroneous. If Rance’s interpretation of the multi-
count statute, Ohio Rev. Code § 2941.25, was incorrect when the Ohio Supreme Court
decided Johnson, it was equally incorrect when Rance was first decided and at all times
in between. The Ohio General Assembly never intended the double punishment that the
Rance test permitted. And, because the sole inquiry in this habeas proceeding is whether
the Ohio legislature intended double punishment under the facts of this case, the Double
Jeopardy Clause requires that we consider Volpe’s claim under Johnson, separate and
apart from any retroactivity decisions of the Ohio courts, otherwise we cannot know if
the legislature intended double punishment.

        The problem with this seemingly compelling argument is that legislatures often
express their intent in broad concepts, leaving the development and application of those
concepts to the state’s highest court. Here, the Ohio legislature did not provide a
statutory definition of the controlling term “allied offenses of similar import.” Ohio
Rev. Code § 2941.25(A); see State v. Jodrey, No. C-840406, 1985 WL 6740, at *4 (Ohio
Ct. App. 1st Dist. Apr. 10, 1985) (“We have previously discoursed about the challenging
nature of determining what are allied offenses of similar import—the basic concept with
which R.C. 2941.25 is concerned.” (citation omitted)); cf. Johnson, 942 N.E.2d at 1066
No. 11-4365        Volpe v. Trim                                                  Page 19


(“In Rance, we held that the General Assembly provided R.C. 2941.25 as a guide for
courts to determine whether particular offenses were intended to be allied.” (citation
omitted)). The legislature left it to the Ohio Supreme Court, the entity ultimately
charged with applying the statute, to give life to the concept. In such circumstances, the
judicial development of the legislatively-created concept is little different from the
development of judicially-announced law. The law evolves over time with experience.
In Johnson, the Ohio Supreme Court determined after years of experience applying
Rance that the statutory scale used to weigh impermissible double punishment against
full criminal accountability—“allied offenses of similar import”—was no longer in
balance and required readjustment. See 942 N.E.2d at 1069 (“[T]his court has gone to
great efforts to salvage the Rance standard. We have modified it and created exceptions
to it in order to avoid its attendant absurd results. However, our allied-offenses
jurisprudence has suffered as a consequence.”).

       This allowance for judicial development of statutory law without running afoul
of the Constitution is implicit in Fiore v. White, 531 U.S. 225 (2001) (per curiam), and
Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam), which involved the question when
new judicial interpretations of statutory law became controlling. In the context of a state
prisoner’s habeas legal-sufficiency challenge to his conviction, the U.S. Supreme Court
held “that retroactivity [was] not at issue” in applying new state supreme court precedent
interpreting a criminal statute because the state court’s ruling, although issued after the
petitioner’s conviction became final, furnished “[the] correct statement of the law when
[the petitioner’s] conviction became final.” Fiore, 531 U.S. at 226. In Fiore, the habeas
petitioner’s conviction had become final before the Pennsylvania Supreme Court
interpreted the criminal statute at issue for the first time in the petitioner’s co-
defendant’s appeal. Although the petitioner’s conduct would not have come within the
purview of the statute as interpreted in the co-defendant’s intervening appeal, the
Pennsylvania court nevertheless denied the petitioner collateral relief. The U.S.
Supreme Court did not adopt the simple logic that the statute must have had the same
meaning all along. Rather, the Court certified to the Pennsylvania Supreme Court the
question whether the decision was a new interpretation of the statute or a correct
No. 11-4365          Volpe v. Trim                                                   Page 20


statement of the law when the petitioner’s conviction became final. See id. The
Pennsylvania court responded that it did not announce a new rule of law, but “merely
clarified the plain language of the statute” applicable to the petitioner’s conviction. Id.
at 228 (citation omitted).

        Underlying the Pennsylvania Supreme Court’s answer to the certified question
in Fiore was the fact that it did not overrule or change any controlling precedent
interpreting the statute. See Fiore v. White, 757 A.2d 842, 848 (Pa. 2000) (“[W]hen we
have not yet answered a specific question about the meaning of a statute, our initial
interpretation does not announce a new rule of law. Our first pronouncement on the
substance of a statutory provision is purely a clarification of an existing law. . . .
Consequently, [when interpreting the statute for the first time,] we were not in a position
to overrule a decision by this Court.”). In light of the state court’s certification, the U.S.
Supreme Court held, based on the uncontested facts of the petitioner’s case, that his
conduct did not violate the criminal statute under which he had been convicted and thus
his conviction violated due process. Fiore, 531 U.S. at 228–29.

        Further, the Supreme Court held in Bunkley that, when state law has changed or
evolved by judicial decision, the “[t]he proper question under Fiore is not just whether
the law changed. Rather, it is when the law changed.” 538 U.S. at 841–42. In Bunkley,
the Court clarified the Fiore inquiry in the context of a petitioner’s direct appeal from
his state-court collateral proceeding, in which the petitioner raised a sufficiency
challenge based on the Florida Supreme Court’s changed interpretation of the criminal
statute under which he had been convicted. If applicable before his conviction became
final, the new interpretation would arguably have rendered his conviction in violation
of due process. The Court remanded the case for the state supreme court to clarify
whether its changed interpretation applied at the time the petitioner’s conviction became
final. Id. at 842.

        Assuming that Fiore extends to sentencing statutes in the double jeopardy
context, its rationale does not apply here because Johnson did not merely clarify section
2941.25, but expressly overruled Rance and changed more than a decade of Ohio
No. 11-4365            Volpe v. Trim                                                              Page 21


allied-offenses jurisprudence. See 942 N.E.2d at 1066–70; see also State v. Williams, --
N.E.2d --, --, No. 2011-0619, 2012 WL 6198021, at *5 (Ohio Dec. 6, 2012) (“[I]n
Johnson, this court abandoned the abstract analysis entirely [and] overruled Rance[.]”).
The Ohio Supreme Court issued Johnson two years after Volpe’s conviction became
final. Because the Rance test was the controlling standard at the time Volpe’s conviction
became final, the Ohio courts consider Johnson’s new test for allied offenses
inapplicable to her case. See, e.g., Layne, 2012 WL 1247209, at *5 (“Although State v.
Johnson . . . specifically overruled State v. Rance, we must nevertheless apply Rance and
its progeny . . . because it was the applicable law at the time Appellant’s convictions and
sentences became final.”).3

                                                   IV.

         For the foregoing reasons, we AFFIRM the district court’s judgment.




         3
          Of course, we do not preclude the application of Johnson in habeas review if the Ohio Supreme
Court declares that its new test for allied offenses applies in the post-conviction context. But as the Ohio
courts have treated Johnson as a change in the law, we reject Volpe’s suggestion that a post-conviction
application of the decision does not involve a retroactivity question.
