                    NOT RECOMMENDED FOR PUBLICATION
                            File Name: 14a0134n.06
                                                                                    FILED
                                       No. 12-4040                            Feb 18, 2014
                                                                          DEBORAH S. HUNT, Clerk
                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


JAMES GOINS,                                     )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR
       Petitioner-Appellant,                     )   THE NORTHERN DISTRICT OF
                                                 )   OHIO
v.                                               )
                                                 )
KEITH SMITH, Warden,                             )
                                                 )
       Respondent-Appellee.                      )
                                                 )


Before: SILER, MCKEAGUE, and WHITE, Circuit Judges.


       HELENE N. WHITE, Circuit Judge. Petitioner James Goins appeals the district

court’s denial of his petition for a writ of habeas corpus. Goins was convicted of attempted

murder, aggravated burglary, aggravated robbery, kidnapping, and felonious assault by an

Ohio state-court jury; four of the counts included gun specifications. The state trial court

sentenced Goins to consecutive prison terms for the various offenses totaling 85 ½ years.

On appeal, the Ohio Seventh District Court of Appeals revised Goins sentence down to

seventy-four years. The Ohio Supreme Court vacated and remanded for resentencing. On

remand, the trial court resentenced Goins to an aggregate term of eighty-four years’

imprisonment. The Ohio Seventh District Court of Appeals affirmed the sentence, and the




                                             1
Ohio Supreme Court denied leave to appeal. On July 7, 2009, Goins filed this timely

petition pursuant to 28 U.S.C. § 2254. We AFFIRM.

                                            I.

      We adopt the following facts and procedural history as set forth by the district court:

              On March 12, 2002, an Ohio state-court jury convicted Goins on
      eleven criminal counts stemming from his participation in two violent
      home-invasion robberies on January 29, 2001.               State v. Goins,
      No. 02–CA–68, 2005 WL 704865, at *21 (Ohio Ct. App. Mar. 21, 2005)
      (Goins I). The evidence at trial showed that Goins and an accomplice, Chad
      Barnette—both sixteen-years-old at the time—attacked eighty-four-year-old
      William Sovak as he was picking up his morning newspaper. Id. at *1. The
      two pushed Sovak “back into his home, repeatedly hit and kicked him, []
      knocked him to the ground many times,” and hit him “on the head with his
      telephone.” Id. Goins and Barnette then pushed Sovak “down the stairs to
      his basement” (at this point, Sovak lost consciousness), dragged him into a
      fruit cellar, and locked the door to prevent escape. Id. Sovak wasn’t
      discovered until later that evening, after a neighbor reported seeing “blood
      all over” Sovak’s house. Id. Sovak “sustained a punctured lung, broken ribs
      and other broken bones.” Id.

             Later that day, Goins and Barnette broke into another home in the
      same neighborhood. Id. In coming upon the residents—sixty-four-year-old
      (and wheelchair-bound) Louis Luchisan and his wife, Elizabeth—Goins and
      Barnette demanded money and threatened to kill the Luchisans if they did not
      comply. Id. To prove that they were serious, the two youths “hit Mr.
      Luchisan over the head with a plate” and “hit Mrs. Luchisan with a
      telephone.” Id. And one of the two assailants carried a firearm as they led
      the Luchisans around the house in a search for money. Id. All this brutal
      treatment for $187, for a 27 [inch] television set, and for the keys to the
      Luchisans’ blue Chevy Malibu. Id.

             On February 5, 2001, the Youngstown, Ohio, Police Department filed
      a twelve-count juvenile-delinquency complaint against Goins, alleging that
      he had committed attempted murder, aggravated burglary, aggravated
      robbery, kidnapping, and felonious assault. [] The juvenile court bound the
      case over to the Mahoning County Grand Jury, which indicted Goins on the
      same twelve counts. [] Goins was tried as an adult, and was convicted on all
      but one count.




                                            2
        [T]he state trial court sentenced Goins to the maximum sentence for
each count of conviction, all to run consecutively, for a total aggregate prison
term of eighty-five-and-a half years. [] The sentencing judge explained: “It
is the intention of this Court that you should not be released from the
penitentiary and the State of Ohio during your natural li[fe].” []

                               *       *       *

         Goins appealed his sentence, arguing (1) that the bindover process
from juvenile court violated due process; (2) that the trial court’s decision to
admit purported scientific evidence without first determining its scientific
reliability violated due process; (3) that the trial court’s decision to allow a
witness—Dr. Louis Maddox—to testify about DNA tests performed by
others violated the Sixth Amendment; (4) that he was denied the effective
assistance of counsel; and (5) that his lengthy sentence was cruel and unusual
punishment in violation of the Eighth Amendment. [] The Ohio Seventh
District Court of Appeals generally rejected Goins’s claims, but did revise his
sentence down to seventy-four years after concluding that the trial court had
incorrectly applied Ohio’s merger doctrine and had failed to justify imposing
the maximum sentence for one of the aggravated-robbery charges. Goins I,
2005 WL 704865, at *21.

        Goins then appealed to the Ohio Supreme Court, again arguing that
his sentence constituted cruel and unusual punishment []. . . . The Ohio
Supreme Court, accepting the appeal only as to Goins’s sentence, vacated
and remanded for resentencing consistent with its decision in State v. Foster,
[] 845 N.E.2d 470 (Ohio 2006) (severing as unconstitutional portions of
Ohio’s sentencing statutes permitting harsher sentences based on facts found
by the sentencing judge rather than the jury and giving trial courts discretion
to impose any sentence within the statutory range without first making any
findings). In re Ohio Criminal Sentencing Statutes Cases, [] 847 N.E.2d
1174 (Ohio 2006), resolving State v. Goins, [] 833 N.E.2d 1246 (Ohio 2005)
(Goins II) (table).

         On remand, the trial court resentenced Goins to an aggregate term of
eighty-four years’ imprisonment—again, the maximum possible under Ohio
law. And Goins again appealed, arguing that this sentence, too, violated
(1) the Eighth Amendment, because it was effectively a life sentence without
the possibility of parole; and (2) Ohio law, by unnecessarily burdening the
state’s resources. [] The Ohio Seventh District Court of Appeals affirmed
the sentence, State v. Goins, No. 06–MA–131, 2008 WL 697370 (Ohio
Ct. App. Mar. 10, 2008) (Goins III), and the Ohio Supreme Court denied
leave to appeal, State v. Goins, [] 889 N.E.2d 1027 (Ohio 2008) (Goins IV)
(table).

                                       3
Goins v. Smith, No. 4:90–CV–1551, 2012 WL 3023306, at *1–2 (N.D. Ohio July 24, 2012).

        The district court referred Goins’s petition to a magistrate judge who recommended

that the court deny Goins’s petition. Id. Goins objected, asserting that in light of Graham

v. Florida, 560 U.S. 48 (2010), his eighty-four-year sentence violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. The district court overruled

Goins’s objections, adopted the magistrate judge’s report and recommendation, and denied

Goins’s petition. On appeal, Goins argues that his aggregate sentence violates the Eighth

Amendment’s prohibition on cruel and unusual punishment.

                                              II.

       This court reviews a district court’s decision to grant or deny a writ of habeas corpus

de novo. Linscott v. Rose, 436 F.3d 587, 590 (6th Cir. 2006). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), a habeas petitioner is not entitled to relief

unless the state court’s adjudication of the 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). “Under the ‘contrary to’ clause, a federal habeas court may grant the

writ 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

on materially indistinguishable facts.” Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008)

(citing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “Under the ‘unreasonable

application’ clause, a federal habeas court may grant the writ if the state court identifies the


                                               4
correct legal principle from the Supreme Court’s decisions but unreasonably applies it to the

facts of the petitioner’s case.” Id. (citing Williams, 529 U.S. at 412–13).

                                             A.

       In Graham,1 the Supreme Court held that the Eighth Amendment “prohibits the

imposition of a life without parole sentence on a juvenile offender who did not commit

homicide. A State need not guarantee the offender eventual release, but if it imposes a

sentence of life it must provide him . . . with some realistic opportunity to obtain release

before the end of that term.” 560 U.S. at 82.2 Two years later, in Miller v. Alabama, 132 S.

Ct. 2455, 2464 (2012), the Court held that mandatory life sentences for juvenile offenders,

even those sentenced for murder, violate the Eighth Amendment. Id.3 Miller did not reach

       1
        Id. The parties do not dispute that Graham applies because it sets forth a new rule
prohibiting a certain category of punishment for a class of defendants and can therefore be
raised on collateral review notwithstanding Teague v. Lane, 489 U.S. 288 (1989).
       2
         In adopting a categorical rule that life without parole sentences for juveniles who
committed nonhomicide offenses violates the Eighth Amendment, the Supreme Court in
Graham found that a national consensus has developed against the sentencing practice, and
the practice does not serve legitimate penological goals, explaining, “because juveniles have
lessened culpability they are less deserving of the most severe punishments,” (citing Roper
v. Simmons, 543 U.S. 551, 569 (2005)). . . . “These salient characteristics mean that ‘[i]t is
difficult even for expert psychologists to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.’” Graham, 560 U.S. at 68 (quoting Roper, 543 U.S.
at 573). “Accordingly, ‘juvenile offenders cannot with reliability be classified among the
worst offenders.’” (quoting Roper, 543 U.S. at 569). “[D]evelopments in psychology and
brain science continue to show fundamental differences between juvenile and adult minds.
For example, parts of the brain involved in behavior control continue to mature through late
adolescence.” Id. (citing Brief for American Medical Association et al. as Amici Curiae
16–24; Brief for American Psychological Association et al. as Amici Curiae 22–27).
       3
        In finding a violation of the Eighth Amendment, the Miller Court observed:

       Roper and Graham establish that children are constitutionally different from
       adults for purposes of sentencing. Because juveniles have diminished

                                              5
the question whether the Eighth Amendment requires a categorical ban on life-without-

parole sentences for juveniles. Nor did Miller foreclose sentencing courts from imposing

such sentences in homicide cases. Id. at 2469. The Court did, however, warn:

               But given all we have said in Roper, Graham, and this decision about
       children’s diminished culpability and heightened capacity for change, we
       think appropriate occasions for sentencing juveniles to this harshest possible
       penalty will be uncommon. That is especially so because of the great
       difficulty we noted in Roper and Graham of distinguishing at this early age
       between “the juvenile offender whose crime reflects unfortunate yet transient
       immaturity, and the rare juvenile offender whose crime reflects irreparable
       corruption.” Roper, 543 U.S., at 573, 125 S. Ct. 1183; Graham, 560 U.S.,
       at ––––, 130 S. Ct., at 2026–2027. Although we do not foreclose a
       sentencer’s ability to make that judgment in homicide cases, we require it to
       take into account how children are different, and how those differences
       counsel against irrevocably sentencing them to a lifetime in prison.

Id.

       Soon after Miller was decided, this court addressed Graham’s application to

aggregate consecutive sentences in Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012), cert.

denied, Bunch v. Bobby, 133 S. Ct. 1996 (2013), and held that Graham did not clearly

establish that consecutive, fixed-term sentences for juveniles who commit multiple non-



       culpability and greater prospects for reform, we explained, “they are less
       deserving of the most severe punishments.” Graham, []130 S. Ct. at 2026.
       Those cases relied on three significant gaps between juveniles and adults.
       First, children have a “‘lack of maturity and an underdeveloped sense of
       responsibility,’ leading to recklessness, impulsivity, and heedless
       risk-taking.” Roper, 543 U.S. at 569 []. Second, children “are more
       vulnerable . . . to negative influences and outside pressures,” including from
       their family and peers; they have limited “contro[l] over their own
       environment” and lack the ability to extricate themselves from horrific,
       crime-producing settings. Ibid. And third, a child’s character is not as “well
       formed” as an adult’s; his traits are “less fixed” and his actions less likely to
       be “evidence of irretrievabl[e] deprav[ity].” Id. at 570.

Miller v. Alabama, 132 S. Ct. at 2464.

                                              6
homicide offenses are unconstitutional, even when they amount to the practical equivalent

of life without parole.4 Addressing Bunch’s consecutive, fixed-term sentence of eighty-nine

years for multiple non-homicide offenses, this court held:

       Bunch’s sentence was not contrary to clearly established federal law even if
       Graham is considered part of that law. While Bunch claims that his sentence
       runs afoul of Graham, that case did not clearly establish that consecutive,
       fixed-term sentences for juveniles who commit multiple nonhomicide
       offenses are unconstitutional when they amount to the practical equivalent
       of life without parole.

                                      *       *        *

                This conclusion is further supported by the fact that courts across the
       country are split over whether Graham bars a court from sentencing a
       juvenile nonhomicide offender to consecutive, fixed terms resulting in an
       aggregate sentence that exceeds the defendant’s life expectancy. Some
       courts have held that such a sentence is a de facto life without parole
       sentence and therefore violates the spirit, if not the letter, of Graham. See,
       e.g., People v. J.I.A., 127 Cal. Rptr.3d 141, 149 (2011); People v. Nunez, 125
       Cal. Rptr.3d 616, 624 (2011). Other courts, however, have rejected the de
       facto life sentence argument, holding that Graham only applies to juvenile
       nonhomicide offenders expressly sentenced to “life without parole.” See,
       e.g., Henry v. State, 82 So.3d 1084, 1089 (Fla. Ct. App. 2012); State v. Kasic,
       228 Ariz. 228, 265 P.3d 410, 415 (App. 2011). This split demonstrates that
       Bunch’s expansive reading of Graham is not clearly established. Perhaps the
       Supreme Court, or another federal court on direct review, will decide that
       very lengthy, consecutive, fixed-term sentences for juvenile nonhomicide
       offenders violate the Eighth Amendment. But until the Supreme Court rules
       to that effect, Bunch’s sentence does not violate clearly established federal
       law.




       4
         The defendant in Bunch was convicted of robbing, kidnaping, and repeatedly raping
a young woman when he was sixteen-years old, and was sentenced to consecutive, fixed
terms totaling 89 years. 685 F.3d at 547. Bunch’s habeas petition asserted that the trial
court violated the Eighth Amendment by sentencing him to “the functional equivalent of life
without parole” in contravention of the intervening holding in Graham. Id.

                                              7
Id. at 550, 552.5

        The district court applied Bunch to the instant case and concluded that “[b]ecause

Goins’s sentence is not technically a sentence to life imprisonment without the possibility

of parole, Graham’s categorical rule does not ‘clearly’ apply to him.” Goins, 2012 WL

3023306, at *6 (citing 28 U.S.C. § 2254(d)). The district court further observed:

        Perhaps more important, the Ohio General Assembly has changed Ohio’s
        sentencing law to markedly improve Goins’s ability to pursue release. In
        particular, Ohio law now permits a defendant to request judicial release after
        he has served a portion of his sentence. Accordingly, Goins now faces a
        mandatory prison term of 42 or 45 years, after which he will be able to apply
        for judicial release. [Doc. 23; 25 ]. See Ohio H. 86, 129th Gen. Assembly
        (eff. Sept. 30, 2011) (amending Ohio Rev. Code § 2929.20 to permit
        offenders to file a motion for judicial release with the sentencing court after
        the later of one-half of their stated prison terms or five years after expiration
        of their mandatory prison terms). Although he faces an extremely long
        sentence, Goins does not face a sentence on the order of the one imposed in
        Graham.

Id. at *7.
                                              B.




        5
          Several additional courts have addressed the issue in the interim, and the decisions
continue to be split. The Ninth Circuit recently held that aggregate consecutive sentences
of 254 years for a juvenile non-homicide offender are “materially indistinguishable” from
the life sentence without parole at issue in Graham. Moore v. Biter, 725 F.3d 1184, 1191–92
(9th Cir. 2013). Similarly, in Thomas v. Pennsylvania, No. 10–4537, 2012 WL 6678686,
*2 (E.D. Pa. Dec. 21, 2012), the district court held that the imposition of aggregate
consecutive sentences of 65–to–150 years with eligibility for parole at age 83 on a juvenile
non-homicide offender (more than a decade beyond his life expectancy) was unconstitutional
under Graham. In contrast, in United States v. Walton, No. 12–30401, 2013 WL 3855550,
*6 (5th Cir. July 26, 2013) (unpublished), cert. denied, Walton v. United States, No. 13-
7111, 2013 WL 5810157, *1 (Dec. 2, 2013), the Fifth Circuit held that a forty-year sentence
imposed on a juvenile for conspiracy to use a firearm in relation to a crime of violence and
car jacking resulting in death was not an Eighth Amendment violation under Graham or
Miller.


                                               8
       Bunch is controlling. Further, even if we were to apply Graham to Goins’s

consecutive, fixed-term sentence for multiple offenses, the district court correctly observed

that Goins’s meaningful opportunity for parole renders Graham inapplicable. See Graham,

560 U.S. at 82.

                                             C.

       Goins additionally argues that the state appellate court’s decision was objectively

unreasonable because it failed to correctly apply the proportionality analysis required when

sentencing a juvenile, arguing that a state court’s failure to conduct an inquiry required by

clearly established federal law constitutes an unreasonable application of that law under

§ 2254(d)(1). See Wiggins v. Smith, 539 U.S. 510, 527–28 (2003) (holding that in deferring

to counsel’s unreasonable decision to limit the scope of investigation into potential

mitigating evidence, the state court of appeals unreasonably applied law clearly established

in Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).

       But consideration of a juvenile’s diminished culpability is not a clearly established

aspect of the proportionality requirement recognized by the Supreme Court in Solem v.

Helm, 463 U.S. 277, 290 (1983). Similarly, in Roper and Graham, although the Supreme

Court took the juveniles’ diminished culpability into consideration in holding that the death

penalty (Roper) and life in prison without parole for a non-homicide offense (Graham) are

categorical violations of the Eighth Amendment, neither case held that a juvenile’s

diminished culpability must be a factor in a term-of-years proportionality analysis. Further,

although Miller observed that “Graham, Roper, and our individualized sentencing decisions

make clear that a judge or jury must have the opportunity to consider mitigating


                                             9
circumstances before imposing the harshest possible penalty for juveniles,” 132 S. Ct. at

2475, and this language certainly counsels in favor of considering juveniles’ diminished

culpability in imposing consecutive term-of-years sentences, Miller does not clearly require

such an approach where a juvenile faces an aggregate term-of-years sentence. Thus,

applying AEDPA, the state appellate court did not unreasonably apply clearly established

federal law in failing to require that the sentencing court factor Goins’s juvenile status into

his sentence.

                                             III.

       For these reasons, we AFFIRM the decision of the district court.




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