              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 12a0196n.06

                                         No. 10-3961

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                  FILED
RAYMOND TODD LININGER,                                                        Feb 17, 2012
                                                                        LEONARD GREEN, Clerk
       Petitioner-Appellant,

              v.                                                On Appeal from the United
                                                                States District Court for the
ROBERT WELCH, Warden,                                           Northern District of Ohio at
                                                                Toledo
       Respondent-Appellee.

                                                          /

Before:       GUY, KETHLEDGE, and WHITE, Circuit Judges.

       Ralph B. Guy, Jr., Circuit Judge.            Petitioner Raymond Lininger, an Ohio

prisoner, appeals from the denial of habeas relief on his claim that the retroactive application

of the Ohio Supreme Court’s decision in Foster upon resentencing violated the Ex Post Facto

Clause and the Due Process Clause of the United States Constitution. State v. Foster, 845

N.E.2d 470 (Ohio 2006). This claim is foreclosed by this court’s recent decision in Ruhlman

v. Brunsman, 664 F.3d 615 (6th Cir. 2011). The denial of habeas relief is affirmed.

                                               I.

       Twice in May 2004, Lininger forced a woman into her car at gunpoint, threatened her,

and demanded that she obtain money for him from ATMs or other locations. The second

victim jumped out of the moving vehicle, was dragged briefly and run over. Apprehended,

Lininger was convicted by a jury of two counts of aggravated robbery with firearm
No. 10-3961                                                                                  2

specifications, two counts of kidnapping with firearm specifications, and one count of

negligent assault. After making the findings required to justify the greater-than-minimum

and consecutive sentences pursuant to Ohio Rev. Code § 2929.14(B) and (E), the trial court

sentenced Lininger to a total of 26 years of imprisonment consisting of consecutive terms of

four years each on the aggravated robbery convictions, consecutive terms of six years each

for the kidnapping convictions, and mandatory consecutive terms of three years each for the

firearm specifications. A 60-day sentence for negligent assault was ordered to be served

concurrently with the others.

       On direct appeal, the state court vacated and remanded for resentencing in light of the

Ohio Supreme Court’s intervening decision in Foster, which addressed the impact of Blakely

v. Washington, 542 U.S. 296 (2004), and held that Ohio Rev. Code Ann. § 2929.14(B) and

(C) were unconstitutional because they provided for increased sentences based on judicial

factfinding. Foster, 845 N.E.2d at 498-99. The trial court resentenced Lininger to the same

aggregate 26-year sentence. Lininger exhausted his state appeals, then brought this claim in

a petition for habeas corpus. The district court, adopting the magistrate judge’s findings,

denied the habeas petition and granted a certificate of appealability.

                                             II.

       On appeal from the denial of a petition for writ of habeas corpus, we review the

district court’s findings of fact for clear error and questions of law de novo. See Goff v.

Bagley, 601 F.3d 445, 455 (6th Cir. 2010), cert. denied, 131 S. Ct. 1045 (2011).

Acknowledging that this case is governed by the Antiterrorism and Effective Death Penalty
No. 10-3961                                                                                          3

Act (AEDPA), petitioner argues that the state court’s rejection of this claim on the merits

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); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

       Petitioner challenges the post-Foster reimposition of greater-than-minimum sentences

for the two counts of aggravated robbery and the two counts of kidnapping, each of which

were felonies in the first degree subject to a sentence of between three and ten years in prison

under Ohio Rev. Code Ann. § 2929.14(A)(1).1 In Ruhlman, this court rejected similar Ex

Post Facto and Due Process Clause challenges to the post-Foster reimposition of a greater-

than-minimum sentence for a second-degree felony under Ohio Rev. Code § 2929.14(A)(2).

For the same reasons, Lininger cannot establish that it was contrary to or an unreasonable

application of Supreme Court precedent for the state court to find that Lininger’s post-Foster

greater-than-minimum sentences did not violate ex post facto or other due process principles.

First, at a minimum, the Ex Post Facto Clause does not apply to the judicial branch of

government. Rogers v. Tennessee, 532 U.S. 451, 456 (2001). Second, as in Ruhlman,

Lininger’s due process rights were not violated by the retroactive application of Foster on

remand. Ruhlman, 664 F.3d at 621; Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

Foster did not alter the applicable sentencing ranges for aggravated robbery and kidnapping,

and, at the time he committed the offenses, Lininger was on notice that he was subject to



       1
         Petitioner does not claim constitutional error in the reimposition of consecutive sentences on
remand, acknowledging that this court rejected Ex Post Facto and Due Process Clause challenges to post-
Foster consecutive sentences in Hooks v. Sheets, 603 F.3d 316, 320-21 (6th Cir. 2010).
No. 10-3961                                                                                 4

longer sentences depending on the trial court’s findings. The trial court made those findings

and imposed greater-than-minimum sentences before Foster, and the imposition of the same

sentences post-Foster was not unexpected or indefensible by reference to the law that applied

when Lininger committed the offenses.

       AFFIRMED.
