                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0230n.06

                                           No. 19-3067


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 JAMES RUSSELL,                                  )
                                                                                    FILED
                                                 )                             Apr 28, 2020
         Petitioner-Appellee,                    )                        DEBORAH S. HUNT, Clerk
                                                 )
 v.                                              )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
 LYNEAL WAINWRIGHT, Warden,                      )    SOUTHERN DISTRICT OF OHIO
                                                 )
         Respondent-Appellant.                   )



BEFORE:        DAUGHTREY, CLAY, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Following his initial state trial in

2005 and a retrial in 2010, James Russell appealed his convictions for aggravated robbery and

murder, which resulted from his shooting Phillip Troutwine in an effort to take the victim’s wallet.

On direct appeal before the Ohio Court of Appeals in October 2010, Russell contended that the

trial court erred in failing to merge his sentences for aggravated robbery and murder. The appeals

court rejected this claim, reasoning that under the then-current state of law laid out in State v.

Rance, the crimes were of “dissimilar import” because of the legislature’s intent in punishing them

as separate crimes and, therefore, not subject to merger. But the appeals court did order a remand

to accommodate a Batson hearing. By the time of Russell’s next appeal, Rance had been

overturned by State v. Johnson, a case that rejected analysis of crimes in the abstract for the

purpose of merging sentences. However, Russell’s appellate counsel, the same one who had

represented him on Russell’s previous appeal, failed to re-raise the sentencing merger issue before
Case No. 19-3067, Russell v. Wainwright


the Ohio Court of Appeals. After unsuccessful efforts to reopen the appeal to add the overlooked

sentencing issue, Russell filed a habeas corpus petition in federal court, which eventually granted

him relief conditioned upon a ruling by the Ohio Court of Appeals on Russell’s claim that his

appellate counsel’s failure to re-raise the sentencing merger argument after the change in law

constituted ineffective assistance of counsel.

       The Warden now appeals the district court’s grant of a conditional writ on this issue,

primarily on the ground that the law has developed since the counsel’s failure to re-raise the issue

to such an extent that Russell would be unsuccessful in securing a merger of his sentences under

the current state of the law. We disagree and affirm the judgment of the district court.

                                       I. BACKGROUND

       This case involves a robbery gone wrong. Candace Hargrove, James Russell’s girlfriend,

arranged to have sex with Philip Troutwine for money. Prior to Troutwine’s arrival at their

residence, however, Hargrove changed her mind, and she and Russell planned to rob him instead.

Russell used a gun to threaten Troutwine and demanded money from him. Hargrove, from the

next room, heard a struggle between Troutwine and Russell and then heard a gunshot, at which

point Russell emerged from the kitchen saying, “Oh my God, I shot him. I didn’t mean to shoot

him. I didn’t mean to shoot him.” Russell and Hargrove then used a tent to wrap up the victim’s

dead body, put the body in the back of the victim’s car, and drove the car away, eventually leaving

it in a parking lot. Police discovered it there three weeks later. Authorities eventually traced

Russell and Hargrove to California, where they were arrested.

       Russell was indicted on multiple counts, and a jury convicted him on five: aggravated

robbery, felony murder, tampering with evidence, grand theft of a motor vehicle, and gross abuse

of a corpse. He was sentenced to a total of 40 years to life in prison, which included consecutive


                                                 2
Case No. 19-3067, Russell v. Wainwright


sentences of ten years for aggravated robbery and 15 years to life for felony murder. He also was

ordered to pay $15,498.25 in restitution to Troutwine’s wife for economic loss.

           With the assistance of counsel, Russell appealed his convictions on several grounds,

including a Batson1 issue and the trial court’s failure to merge his aggravated robbery and murder

convictions under Ohio Revised Code § 2941.25. The Ohio Court of Appeals found that “the trial

court erred in its treatment of the Batson issue” and remanded the case for a Batson analysis, which

was unsuccessful. State v. Russell, No. 23454, 2010 WL 3835645, at *4 (Ohio Ct. App. 2d Dist.

2010) (Russell I). On the issue of sentence merger, the court relied on the prevailing standard at

that time, State v. Rance, 710 N.E.2d 699 (Ohio 1999), and evaluated “whether the legislature

intended to permit the imposition of multiple punishments for conduct that constitutes multiple

criminal offenses.” Russell I, 2010 WL 3835645, at *7. It “compar[ed] the elements of the two

offenses in the abstract” and found that “commission of neither offense necessarily results in

commission of the other.” Id. at *8. As a result, the court overruled this assignment of error.

           Two months later, in December 2010, the Supreme Court of Ohio overruled Rance, the

case upon which the Ohio Court of Appeals had relied to deny Russell’s claim that the court erred

in failing to merge his sentences. State v. Johnson, 942 N.E.2d 1061, 1069 (Ohio 2010). The

Johnson standard required courts to focus on the facts of each specific case rather than evaluate

the crimes in the abstract, as the appeals court had done in Russell’s appeal. See id. at 1069–70.

           In November 2011, Russell again appealed his conviction on Batson grounds, represented

by the same appellate counsel as in 2010. State v. Russell, No. 24443, 2012 WL 368135 (Ohio Ct.

App. 2d Dist. 2012) (Russell II). But this time, his attorney did not raise the merger issue. The

court remanded Russell’s case for another Batson hearing, id. at *9, but once again the trial court


1
    Batson v. Kentucky, 476 U.S. 79 (1986).

                                                 3
Case No. 19-3067, Russell v. Wainwright


did not decide the issue in his favor. In 2012, Russell petitioned pro se to reopen his prior direct

appeal, contending that his appellate counsel was ineffective for failing to raise additional

challenges, including the merger issue. In his application for re-opening, Russell noted that the

“Supreme Court of Ohio ha[d] recently overruled its prior judgments in this area of the law, and it

articulated the proper analysis for determining whether merger is appropriate.” The Court of

Appeals denied the application to re-open, finding that because the merger issue was raised and

overruled, it was “barred by the law of this case.” The court did not acknowledge the change in

law. Russell appealed again in 2013 and 2014, but neither petition was successful. The Supreme

Court of Ohio declined all appeals.

       Then, in March 2015, the Ohio Supreme Court decided State v. Ruff, which modified the

Johnson approach to determining whether sentences should merge. State v. Ruff, 34 N.E.3d 892,

897 (Ohio 2015); see also State v. Earley, 49 N.E.3d 266 (Ohio 2015). In this appeal, the Warden

insists that Ruff and Earley “abrogated” Johnson, nullifying any possibility of relief for Russell.

Russell insists that no abrogation resulted, thereby narrowing the dispositive issue now before us.

       In September 2015, Russell filed a habeas petition in federal court, raising seven grounds

for relief, including ineffective assistance of appellate counsel. The district court dismissed the

petition with prejudice, granting a certificate of appealability (COA) on only the Batson claim.

Russell v. Marion Corr. Inst., No. 3:15–cv–331, 2016 WL 4440323, at *1 (S.D. Ohio Aug. 23,

2016) (Russell III).

       On appeal to the Sixth Circuit, we originally denied Russell’s application for an expanded

COA but granted his motion for the appointment of counsel. Two weeks after Russell obtained

new counsel, he petitioned for rehearing, clarifying his arguments regarding his appellate counsel’s

failure to reassert his merger argument on appeal and asking us to revisit our prior denial of an


                                                 4
Case No. 19-3067, Russell v. Wainwright


expanded COA. In light of the clarification provided, we found that “reasonable jurists could

debate whether [Russell’s] appellate counsel was ineffective for failing to re-raise his merger

argument,” due to the new standard used to assess whether sentences should merge under Johnson.

We therefore granted his petition and expanded Russell’s COA to cover his ineffective-assistance

claim related to his appellate counsel’s failure to re-raise his merger argument. In the end, we held

that “the district court erroneously dismissed Russell’s ineffective-assistance claim as procedurally

barred,” and—because no federal court had yet heard this issue on the merits—we remanded the

matter to the district court for a substantive ruling. Russell v. Bunting, 722 F. App’x 539, 551 (6th

Cir. 2018) (Russell IV). However, we affirmed the district court’s denial of relief on the Batson

claim. Id. at 546–50.

       Upon remand, the district court found that there “is a reasonable probability that the [Ohio

Court of Appeals] might grant relief on Russell’s claim under Ohio Revised Code § 2941.25” and

granted a writ of habeas corpus conditioned on Russell being allowed to file a new appeal in state

court. Russell v. Bunting, No. 3:15-cv-331, 2019 WL 120974, at *1 (S.D. Ohio, Jan. 7, 2019)

(Russell V). The Warden timely filed an appeal from this judgment.

                                        II. DISCUSSION

       We review habeas corpus decisions of a district court under a mixed standard, reviewing

legal conclusions de novo and factual findings for clear error. Kelly v. Lazaroff, 846 F.3d 819, 827

(6th Cir. 2017).

       When a habeas claim has been presented and adjudicated properly on the merits before the

state court, then a heightened standard of review is required by AEDPA, 28 U.S.C. § 2254. Kelly,

846 F.3d at 831. The Warden argues that although Russell’s ineffective-assistance claim was not

adjudicated on the merits in state court, AEDPA should apply because the state court addressed

                                                 5
Case No. 19-3067, Russell v. Wainwright


the underlying issue of whether Russell’s offenses should have merged. To the contrary, however,

in expanding the COA on this issue, we have already determined that the Ohio Court of Appeals

never addressed this claim on the merits and, therefore, that it is not subject to AEDPA deference.

See Russell v. Bunting, No. 16-4022 (6th Cir. May 30, 2017) (order); see also Russell IV, 722 F.

App’x at 550 (finding that Russell’s ineffective-assistance claim is not procedurally defaulted).

   A. Evaluating Ineffective Assistance of Counsel: Strickland v. Washington

       “On the first appeal of right, a defendant is entitled to effective assistance of appellate

counsel,” and we evaluate claims of ineffective assistance of appellate counsel under the Strickland

standard. Goff v. Bagley, 601 F.3d 445, 462 (6th Cir. 2010) (citing Mahdi v. Bagley, 522 F.3d 631,

636 (6th Cir. 2008)); Strickland v. Washington, 466 U.S. 668 (1984). The standard “requires that

the [defendant] affirmatively establish (1) that counsel’s performance was objectively deficient;

and (2) prejudice, which means that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.; Goff, 601 F.3d

at 462 (quoting Mahdi, 522 F.3d at 636).

       1. Deficient Performance

       “To establish that counsel was deficient, ‘the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.’” Smith v. Mitchell, 567 F.3d

246, 257 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 688). Under the first prong of Strickland,

“[c]ounsel’s performance is objectively unreasonable only where ‘the identified acts or omissions

were outside the wide range of professionally competent assistance,’ as determined by ‘prevailing

professional norms.’” United States v. Munoz, 605 F.3d 359, 376 (6th Cir. 2010) (quoting

Strickland, 466 U.S. at 690). When evaluating reasonable competence, we assess whether the

omitted issues were “significant and obvious,” whether there was contrary authority on the issue,

                                                 6
Case No. 19-3067, Russell v. Wainwright


and whether an advantage was gained by omitting the issue on appeal. Mapes v. Tate, 388 F.3d

187, 191 (6th Cir. 2004).

       Because “[t]he reasonableness of counsel’s performance is to be evaluated from counsel’s

perspective at the time of the alleged error and in light of all the circumstances,” we must consider

the law at the time of the appeal in question to evaluate the performance of Russell’s counsel.

Jacobs v. Mohr, 265 F.3d 407, 418 (6th Cir. 2001) (quoting Strickland, 466 U.S. at 689). This

prong of the Strickland test, as applied here, focuses solely on whether failing to raise Johnson

caused Russell’s appellate counsel’s performance to fall “below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

       In granting Russell’s expanded COA, we recognized that the Ohio Court of Appeals

determined that the reasoning it earlier used to deny Russell’s merger claim was abrogated by

Johnson. See State v. McGail, 55 N.E.3d 513, 536 (Ohio Ct. App. 2d Dist. 2015) (“The State’s

reliance on Russell [I] is unpersuasive . . . because the opinion in that case predated Johnson . .

. in which the Ohio Supreme Court explicitly rejected the abstract-comparison approach used in

Russell [I].”). Because Russell’s same counsel was filing another appeal, it would have been

objectively reasonable to re-raise the merger of sentencing issue given the fact that the law relied

on by the court in the first appeal had clearly changed.

       First, the change in law was both “significant and obvious.” Mapes, 388 F.3d at 191. It

was significant because—as outlined below—had the issue been raised on direct appeal, Russell’s

sentences for murder and robbery likely would have been merged under the Johnson test. It was

obvious because Johnson directly overruled the primary case relied on by the court in Russell’s

prior appeal, Rance. Johnson, 942 N.E.2d at 1063 (“Unfortunately, the standard announced in

Rance has proven difficult to apply. We take this opportunity to overrule Rance.”).


                                                 7
Case No. 19-3067, Russell v. Wainwright


       Further, there was no contrary law at the time of the appeal in question. Johnson was

decided on December 29, 2010. The appeal that failed to re-raise the merger argument was filed

in November 2011 and was decided in February 2012. See Russell II, 2012 WL 368135. No case

cited by the Warden that challenges a winning argument for Russell under Johnson took place in

the time period between December 2010 and November 2011.

       Finally, there does not appear to have been a strategy in neglecting to re-raise the merger

issue in the appeal filed in November 2011. Russell’s counsel challenged the trial court’s failure—

for the second time—to find a Batson violation. Russell gained no apparent advantage by not also

raising the merger of sentences under the new case law that had since developed. On the contrary,

it was in fact the stronger of the two arguments.

       We conclude that Russell’s appellate counsel was deficient in his representation by failing

to re-raise the merger argument in the November 2011 appeal.

       2. Prejudice

       The next question is whether the deficient performance by Russell’s appellate counsel

constituted prejudice under the Strickland analysis. Establishing prejudice requires the defendant

to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. ” Strickland, 466 U.S. at 694. “Although this

analysis necessarily involves an evaluation of the underlying claims, it does not require a decision

on or a determination of these issues.” Mapes, 388 F.3d at 194. The question is whether, but for

the counsel’s deficiency, there is a reasonable probability Russell would have succeeded on his

appeal. Id.




                                                    8
Case No. 19-3067, Russell v. Wainwright


           In evaluating whether deficient performance by counsel caused prejudice, we may not

consider the effect of counsel’s failure to take an action that might have been meritorious at the

time of performance if it is now “wholly meritless under current governing law.” Evans v. Hudson,

575 F.3d 560, 565–66 (6th Cir. 2009) (emphasis added) (quoting Lockhart v. Fretwell, 506 U.S.

364, 374 (1993) (O’Connor, J, concurring)). In Fretwell, the Supreme Court considered whether

a habeas petitioner’s trial counsel was ineffective for failing to make a Collins2 objection during

the petitioner’s sentencing proceeding. 506 U.S. at 366–67. The Court found that the petitioner

was not prejudiced by his counsel’s failure to raise a Collins objection because Collins, although

binding law at the time of the petitioner’s sentencing, was later overruled. Fretwell, 506 U.S. at

370–71. The Court stated that “[s]heer outcome determination” is not sufficient to show prejudice

under Strickland, id. at 370, and found that “[t]he result of the sentencing proceeding in the present

case was neither unfair nor unreliable” because Collins was later overruled, id. at 371. It reasoned

that to hold otherwise—i.e., to find prejudice even where counsel’s “error” was based on a decision

that was no longer good law—“would grant criminal defendants a windfall to which they are not

entitled.” Id. at 366. Thus, the Court denied the petitioner’s claim for habeas relief for lack of

prejudice. Id. at 373.

           In the present case, the Warden argues that Fretwell forecloses Russell’s ineffective

assistance of counsel claim based on Johnson because, according to the Warden, Johnson is no

longer good law in Ohio. However, contrary to the Warden’s suggestions, no Ohio court has ever

expressly overruled Johnson, and, in fact, Ohio courts have continued to apply Johnson even after

Ruff/Earley. See, e.g., McGail, 55 N.E.3d at 532–34. More importantly, Russell is not seeking a

“windfall” based on Johnson. The core holding of Johnson—that courts should not analyze the


2
    Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), overruled by Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989).

                                                            9
Case No. 19-3067, Russell v. Wainwright


statutory elements of potential allied offenses in the abstract—remains binding law in Ohio. See

Johnson, 942 N.E.2d at 1069 (overruling Rance “to the extent that it calls for a comparison of

statutory elements solely in the abstract”); see also McGail, 55 N.E.3d at 533 (“[D]espite its

proclaimed obsolescence, [Johnson] retains similarity to the Ruff standard, particularly with

respect to the conduct and animus issues . . . .”). Accordingly, Russell would not receive a

“windfall” if the state court reviews his ineffective assistance claim under either Johnson or current

Ohio case law, because both require courts to analyze a defendant’s conduct in the specific factual

circumstances of his case rather than in the abstract. The analysis that follows addresses Russell’s

argument under Ohio’s current body of law on whether sentences should merge.

       Ohio Revised Code § 2941.25 lays out when a defendant may be convicted of multiple

offenses:

       (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.

Ohio Rev. Code Ann. § 2941.25. For eleven years, the Ohio Supreme Court relied on the test

announced in Rance to determine whether crimes are “allied offenses of similar import” and should

be merged under Ohio Revised Code § 2941.25. See Rance, 710 N.E.2d at 702–03. This test

evaluated the “statutory elements in the abstract” and dictated that “[i]f the elements of the crimes

correspond to such a degree that the commission of one crime will result in the commission of the

other, the crimes are allied offenses of similar import.” Id. (internal quotations omitted).




                                                 10
Case No. 19-3067, Russell v. Wainwright


       In December 2010, the Ohio Supreme Court overruled Rance, eliminating the abstract

analysis of the criminal statutes. Johnson, 942 N.E.2d at 1069. In doing so, the court held that

Ohio Revised Code § 2941.25 “instructs courts to examine a defendant’s conduct—an inherently

subjective determination” that “may result in varying results for the same set of offenses in

different cases.” Id. at 1070. The approach laid out in Johnson directed courts first to decide

“whether the offenses were committed by the same conduct,” which can be determined by asking

“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.” Id. 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.” Id. But, if

it is possible for the separate offenses to be committed by the same conduct, then the court must

address whether they were committed in “a single act, committed with a single state of mind.” Id.

(quoting State v. Brown, 895 N.E.2d 149, 158 (Ohio 2008) (Lanzinger, J., concurring in

judgment)). “If the answer to both questions is yes, then the offenses are allied offenses of similar

import and will be merged.” Id.

       Since Johnson was decided in 2010, Earley and Ruff have further modified the standard

Ohio courts apply when evaluating whether a trial court may impose cumulative sentences for two

separate crimes. See Ruff, 34 N.E.3d 892; State v. Earley, 49 N.E.3d 266 (Ohio 2015). In Earley,

the Ohio court described Ruff as laying out the “three-part test under R.C. 2941.25 to determine

whether a defendant can be convicted of multiple offenses.” Earley, 49 N.E.3d at 269. That test

requires courts to consider the “conduct, the animus, and the import” of the crimes in question.

Ruff, 34 N.E.3d at 899.




                                                 11
Case No. 19-3067, Russell v. Wainwright


        As a practical matter, when determining whether offenses are allied offenses of similar
        import within the meaning of R.C. 2941.25, courts must ask three questions when
        defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import
        or significance? (2) Were they committed separately? and (3) Were they committed with
        separate animus or motivation? An affirmative answer to any of the above will permit
        separate convictions. The conduct, the animus, and the import must all be considered.

Id. Although the current standard requires an additional question, it retains Johnson’s framing of

the conduct and animus issues. McGail, 55 N.E.3d at 533. We analyze the three questions

presented under the Ruff/Earley standard separately.

         a. Separate Conduct: Whether the Two Offenses Were Committed Separately

        One part of the analysis is focused on the conduct itself. McGail, 55 N.E.3d at 533.

Whereas Earley laid out the Ohio Supreme Court’s current standard for evaluating whether

sentences should merge under Ohio Revised Code § 2941.25, McGail provides insight into how

the courts have applied the standard to the merger of aggravated robbery and felony murder. In

McGail, the Ohio Court of Appeals, Second District (the same intermediate court that reviewed

Russell’s conviction) analyzed the evolution of the merger-of-offenses doctrine under Ohio law

and applied it to a set of facts similar to those in the present case. Id. The court used the first step

of Johnson (and the second step of Ruff)—whether it is possible to commit aggravated robbery

and murder with the same conduct—to analyze whether the crimes were committed separately.

Id. at 533–34. On this prong of the test, the court found in favor of the defendant. Id. The court

held that it is possible to commit both aggravated robbery and murder with the same act because

“a victim could die from the use of a deadly weapon in the course of an aggravated robbery,

resulting in the victim’s murder.” Id. at 534.

        Here, Russell’s facts are analogous. Russell committed murder through the use of a deadly

weapon in the course of robbing his victim. As a result, there is a reasonable probability that

Russell did not commit the crimes separately for purposes of § 2941.25.

                                                  12
Case No. 19-3067, Russell v. Wainwright


         b. Separate Animus or Motivation

        The next question is whether Russell committed the aggravated robbery and murder with

separate animus or motivation. In analyzing this question, Ohio courts have relied on the presence

of a struggle between the perpetrator and the victim as an indicator for whether “the force used to

effectuate an aggravated robbery is far in excess of that required to complete the robbery, or where

the circumstances suggest that a separate intent to kill existed.” McGail, 55 N.E.3d at 534 (quoting

State v. Jackson, No. 24430, 2012 WL 1900373 (Ohio Ct. App. 2d Dist. 2012)); see also State v.

Jefferson, 2017 WL 1193797, at *2 (Ohio Ct. App. 2d Dist. 2017).

        The court in McGail, for instance, found that because the defendant testified to the gunshot

being a “reflex” and because the gun discharged accidentally during the struggle, there was an

“absence of any intent to kill separate and apart from the intent to rob.” McGail, 55 N.E.3d at 535.

Consequently, the court determined that the defendant committed the two offenses with the same

conduct and the same animus and, despite applying the Johnson standard in its analysis, came out

the same way as it would have under Ruff:

        We reach the same conclusion under the Ruff standard, which the Ohio Supreme
        Court applied in Earley. We see nothing in Ruff that alters or undermines the
        foregoing analysis about McGail’s commission of murder and aggravated robbery
        involving the same conduct committed with the same animus. For the reasons set
        forth above, we conclude that the two offenses were not committed separately and
        were not committed with a separate animus or motivation.
Id. at 536.

        In the present case, the evidence provides us with minimal insight into how the robbery

and murder took place, but we can infer from the record that Russell and Troutwine engaged in a

struggle prior to the gunshot. In her testimony, the state’s primary witness—Candace Hargrove—

testified that she left the kitchen shortly after Russell approached the victim with a gun demanding

his money. From the adjacent room, she “heard tussling and then [she] heard a gunshot.” She

                                                13
Case No. 19-3067, Russell v. Wainwright


testified that Russell immediately “came running out of the kitchen saying, ‘Oh my God, I shot

him. I didn’t mean to shoot him. I didn’t mean to shoot him.’” The testimony of another witness

that lived in the apartment below where the robbery took place also indicated that on the morning

in question, he “heard some tussling” before he heard a gunshot, “like somebody was upstairs

wrestling or something.” The autopsy reveals that Troutwine was shot only once. The record thus

indicates a struggle between Russell and the victim, and the state appellate court could reasonably

infer that the use of the gun was not separately intended or motivated by an intent to kill.

       In contrast, Ohio courts have found the use of force to establish a separate animus where

the force was used after the robbery was completed, State v. Kerby, 2014 WL 3809050, at *5 (Ohio

Ct. App. 2d Dist. 2014); where the perpetrator pursued, stopped, and returned with an employee

who tried to escape while he was robbing the store, State v. Moore, 2018 WL 2473476, at *3 (Ohio

Ct. App. 2d Dist. 2018); and where a victim was shot multiple times, thus indicating excessive

force or a separate intent to kill, Jackson, 2012 WL 1900373, at *24. None of those circumstances

exist in the record before us.

       Because the facts established that Russell engaged in a struggle with the victim and because

his reaction indicated that the shooting was accidental, there does not appear to have been separate

animus or motivation involved in the robbery and the murder. Hence, this part of the Ruff test does

not preclude Russell’s sentences from being merged.

         c. Dissimilar in Import or Significance

       “[O]ffenses are not allied offenses of similar import if they are not alike in their

significance and their resulting harm.” Ruff, 34 N.E.3d at 897. Although “import” is not clearly

defined in Ohio law, Ruff lays out several illustrations of offenses of dissimilar import: when a

“defendant’s conduct put more than one individual at risk,” id. at 898 (citing State v. Jones, 480


                                                 14
Case No. 19-3067, Russell v. Wainwright


N.E.2d 408, 410 (Ohio 1985)), when neither offense is incident to the other, id. (citing State v.

Moss, 433 N.E.2d 181 (Ohio 1982)), if “the defendant’s conduct constitutes offenses involving

separate victims, or if the harm that results from each offense is separate and identifiable.” Id.

Additional considerations in evaluating whether two offenses are of dissimilar import or

significance include the language of the code and the intention of the Ohio General Assembly in

criminalizing the offenses.   See Earley, 49 N.E.3d at 270. The Ohio Supreme Court has

emphasized that this part of the allied-offense analysis must remain fact specific and that the

“evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have

similar import.” Ruff, 34 N.E.3d at 898.

       Because only one individual, Troutwine, was at risk in this case and because the murder

was incident to the aggravated robbery, we begin by looking at whether the harms that resulted

from Russell’s conduct were separate and identifiable. In analyzing “whether McGail’s murder

and aggravated robbery offenses [were] of dissimilar import,” the Ohio Court of Appeals evaluated

the harm or harms caused to the victim. 55 N.E.3d at 536. The court found that because the

defendant did not succeed in taking the intended property—marijuana—from the victim, the harm

could not be the loss of property. Id. But it was not just because the theft was unsuccessful.

Rather, “the real harm resulting from the aggravated robbery . . . [was] precisely the type of harm

that [the Ohio aggravated robbery code] is intended to prevent—[the victim’s] loss of his life as a

result of being shot when [the perpetrator] used a deadly weapon while attempting to commit a

theft offense.” Id. at 536–37. The court therefore found that the murder and aggravated robbery

offenses were not of dissimilar import, particularly because “the murder was part and parcel of a

struggle during an on-going attempt to [commit a robbery].” Id. at 537.




                                                15
Case No. 19-3067, Russell v. Wainwright


         The Warden argues that Troutwine’s loss of property—his car—is a harm separate and

distinct from his loss of life. It is true that the Ohio Court of Appeals has held that “[t]he harm

suffered by a victim from having his car stolen is clearly separate and identifiable from the

harm … suffered from being shot in the head and killed.” State v. Wood, 2016 WL 197092, at *12

(Ohio Ct. App. 2d Dist. 2016). The question addressed in Wood, however, was specific to the

merger of sentences for aggravated murder and grand theft of a motor vehicle. Id. In this case,

Russell was convicted of and sentenced for grand theft of the victim’s motor vehicle, but he is not

asking for merger of that sentence. Instead, Russell seeks to have his robbery and murder sentences

merged. To convict Russell of aggravated robbery, the jury had to find only that Russell “had a

deadly weapon on or about his person or under his control, and displayed, brandished, indicated

he possessed or used the weapon” while he either committed or attempted to commit a theft

offense.3

         The next consideration is what the Ohio legislature intended to punish with the underlying

statutes. In Russell I, the Ohio Court of Appeals addressed the societal interest and purposes

underlying the felony murder and aggravated robbery statutes and analyzed them differently than

did the court in McGail:

         [T]he societal interests underlying the felony murder and aggravated robbery
         statutes are not identical . . . . [T]he societal interest underlying the felony murder
         statute is protection of persons from physical harm, specifically death. The societal
         interest underlying the aggravated robbery statute is two-fold. The purpose of the
         aggravated-robbery statute is to punish potential or actual harm to persons and to
         protect property. . . . The existence of an additional societal interest, the protection
3
  At trial, the state argued that Russell stole items as part of the robbery charge, but there was no actual evidence that
he stole anything from Troutwine. The jury did not have to indicate whether they found beyond a reasonable doubt
that Russell committed theft, only that he attempted to. Thus, it is unclear whether—outside of the grand theft
conviction—Russell deprived the victim of his property. Nonetheless, Ohio courts have found that aggravated robbery
and murder counts should merge even in cases where there was stolen property. State v. Robinson, 2019 WL 495579,
at *11 (Ohio Ct. App. 1st Dist. 2019); State v. Hale, 2019 WL 3855862, at *9 (Ohio Ct. App. 8th Dist. 2019). The
Warden also points to the $15,498.25 in restitution given to the victim’s widow as an indication that there was property
stolen other than the car. It is clear from the transcript of the sentencing hearing, however, that the trial court ordered
restitution in conjunction with the murder conviction and not the grand theft charge.

                                                           16
Case No. 19-3067, Russell v. Wainwright


       of property, underlying the aggravated robbery statute supports finding a legislative
       intent to consider aggravated robbery and felony murder as having different
       imports.

Russell I, 2010 WL 3835645, at *12 (citations omitted). But see McGail, 55 N.E.3d at 536–37

(finding that “[the victim’s] loss of his life as a result of being shot when [defendants] used a

deadly weapon while attempting to commit a theft offense” is “precisely the type of harm that [the

Ohio aggravated robbery code] is intended to prevent.”). However, in reaching its conclusion, the

Ohio Court of Appeals in Russell I relied on the test from Rance, which Johnson overruled and

McGail explicitly rejected:

       In opposition to the foregoing conclusion, the State cites [State v. Russell] for the
       proposition that felony murder and aggravated robbery are not allied offenses
       because “[c]omparing the elements of the two offenses in the abstract, commission
       of neither offense necessarily results in commission of the other.” . . . The State’s
       reliance on Russell is unpersuasive, however, because the opinion in that case
       predated Johnson, . . . in which the Ohio Supreme Court explicitly rejected the
       abstract-comparison approach used in Russell. We note too that the more recent
       Ruff opinion did not alter Johnson’s rejection of the abstract-comparison approach,
       which remains inapplicable in Ohio.

McGail, 55 N.E.3d at 535–36 (emphasis added) (citing Russell I, 2010 WL 3835645).

       The allied-offense test also considers the language and structure of the statutes. Ohio courts

have found murder or assault to merge with aggravated burglary or robbery because the assault or

murder constituted the aggravated element of the other crime. For example, the Ohio Court of

Appeals in State v. Ramey held that “the trial court erred by failing to merge the offense of

aggravated burglary with the offense of murder as a proximate cause of felonious assault.” 2018

WL 3702299, at *5 (Ohio Ct. App. 2d Dist. 2018) (footnote omitted). It reasoned that because the

murder was committed specifically “as a proximate cause of felonious assault,” the murder was

“the aggravating element necessary to make the burglary an aggravated burglary rather than a




                                                17
Case No. 19-3067, Russell v. Wainwright


simple burglary.” Id. (“Without the physical harm caused by the felonious assault, the burglary

would not have had the aggravating element of inflicting physical harm.”).

       In Ruff, as another example:

       The trial court imposed separate sentences for [rapes and aggravated burglaries]
       because it believed that the offense of aggravated burglary was complete upon the
       entry into the dwelling. The court of appeals disagreed and determined that because
       the physical harm that constituted the aggravating factor for the burglary offense
       was the rape of the victim, Ruff could not be separately convicted for both the
       aggravated burglary and rape of each victim.

Ruff, 34 N.E.3d at 899. The Ohio Supreme Court, however, “decline[d] to create an absolute rule

based upon the definition of the offenses” because it refused to “hold that every aggravated

burglary and rape automatically lead to the same import.” Id. Despite the argument that rape and

aggravated burglary involved two separate harms—one against a person, one against property—

the court reiterated that Ohio Revised Code § 2941.25 required courts “to focus on the defendant’s

conduct to determine whether one or more convictions may result, because an offense may be

committed in a variety of ways and the offenses committed may have different import.” Id.

       Here, to determine whether Russell was prejudiced by deficient counsel, we are tasked with

determining whether there is a “reasonable probability” that the Ohio Court of Appeals would

merge Russell’s aggravated robbery and murder sentences under current law. Smith, 567 F.3d at

257 (quoting Strickland, 466 U.S. at 694). In other words, we must find “a probability sufficient

to undermine confidence in the outcome,” id., a probability by “less than a preponderance of the

evidence.” Lyons v. Jackson, 299 F.3d 588, 599 (6th Cir. 2002) (citing Strickland, 466 U.S. at

694). In defining the current test used to evaluate sentence mergers in Ohio law, Ruff “recognize[d]

that this analysis may be sometimes difficult to perform and may result in varying results for the

same set of offenses in different cases. But different results are permissible, given that the statute

instructs courts to examine a defendant’s conduct—an inherently subjective determination.” Ruff,

                                                 18
Case No. 19-3067, Russell v. Wainwright


34 N.E.3d at 899 (quoting Johnson, 942 N.E.2d at 1070). Given the varied outcomes resulting

from similar fact patterns, we conclude that there is a reasonable probability that the Ohio Court

of Appeals could find, as it did in McGail, that Russell’s sentences should merge, a possibility

“sufficient to undermine confidence in the outcome” of Russell’s prior appeal. Smith, 567 F.3d at

257.

        In sum, although the facts of Russell’s case may vary from those in McGail, there is not a

significant enough variance to predict that the court would come out differently on the two same

crimes in this case. Russell’s conduct did not affect more than one person, the two crimes were

incident to each other, there is no definitive finding that Russell deprived Troutwine of property

(other than his vehicle)—meaning that the crimes likely resulted in only one harm. Additionally,

although the Ohio Court of Appeals concluded that the legislature intended to punish Russell’s

crimes separately, with that same intent the court in McGail still determined that the crimes were

of similar import. We therefore conclude that the district court correctly issued the conditional writ

in this case.

        Finally, we address two arguments offered by the Warden as something of a last-ditch

effort to defeat the remedy ordered by the district court. Both are without merit and need not detain

us long.

        The Warden insists that merger of the sentences would result in Russell “getting away with

murder,” phrasing the issue as whether “the Ohio General Assembly intended to punish a thief the

same as a thief who murders someone.” But merger of the sentences by the state courts does not

mean that Russell will be punished only as “a thief” and not for the murder. “The General

Assembly has made clear that it is the state that chooses which of the allied offenses to pursue at

sentencing, and it may choose any of the allied offenses.” State v. Whitfield, 922 N.E.2d 182, 187

                                                 19
Case No. 19-3067, Russell v. Wainwright


(Ohio 2010). If Russell is granted a new appeal and prevails, the state may pursue the greater of

the offenses at sentencing and may urge the sentencing court to take into consideration all

sentencing enhancements or mitigating factors that it had considered previously.

       As we have emphasized, it us not our responsibility to make a determination on the merits

of the sentencing merger. We need to find only that but for Russell’s appellate counsel’s failings,

there is a reasonable probability that Russell would have prevailed in securing a merger of his

sentences on appeal. See Mapes, 388 F.3d at 194. “Thus, as the only constitutional violation

properly before us is the ineffective assistance of appellate counsel, the appropriate remedy is the

one granted by the district court, that is, a writ conditioned upon Ohio courts granting a new, direct

appeal.” Id. The ultimate determination on the merits needs to be made by the Ohio courts in the

development of their law, in order to “avoid[] unnecessarily interfering with Ohio’s interest in

correcting its own errors.” Id.

       Finally, the Warden also insists that the magistrate judge ultimately recommended granting

the writ due to his belief that the district court was compelled by the law-of-the-case doctrine to

adhere to our statement in the expanded COA order that “there is a strong possibility that the Ohio

Court of Appeals would have merged Russell’s aggravated robbery and felony murder

convictions” had the issue been re-raised by appellate counsel. The magistrate judge, in his

supplemental report, did state that “[a] ruling on a certificate of appealability constitutes the law

of the case, binding in subsequent stages of the litigation.” However, it is clear that the statement

in our prior order does not constitute the “law of the case” and should not have been relied upon

to reach such a conclusion. Indeed, the record establishes that the district court independently

analyzed the issue under the current state of Ohio’s law and did not rely merely on a statement

from our interim order. Russell IV, 2019 WL 120974, at *1.


                                                 20
Case No. 19-3067, Russell v. Wainwright


                                      III. CONCLUSION

       For the reasons set out above, we AFFIRM the decision of the district court to “issue a writ

of habeas corpus conditioned on Russell’s being allowed a new appeal to the Ohio Second District

Court of Appeals . . . in which the assignment of error at issue in the remand—whether [Russell]’s

aggravated robbery and murder convictions should be merged under Ohio Revised Code

§ 2941.25—is presented for decision.”




                                               21
