                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 13a0319n.06

                                                  No. 12-3202                                         FILED
                                                                                                  Apr 02, 2013
                              UNITED STATES COURT OF APPEALS                              DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

MICHAEL WALTERS,                                              )
                                                              )
        Petitioner-Appellee,                                  )
                                                              )        ON APPEAL FROM THE
v.                                                            )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE SOUTHERN
WARDEN, ROSS                                                  )        DISTRICT OF OHIO
CORRECTIONAL INSTITUTION,                                     )
                                                              )
        Respondent-Appellant.                                 )


Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*

        LUDINGTON, District Judge. Stare decisis is more than a prudential doctrine in the Sixth

Circuit. It is the rule. In this case, the district court granted Michael Walters’s habeas corpus

petition based on a retroactive application of a Supreme Court of Ohio decision issued after Walters

exhausted his remedies on direct appeal in state court. A panel of this Court has since concluded

that the Ohio Supreme Court decision does not apply retroactively in habeas review. We therefore

REVERSE the district court’s decision.

                                                         I

        Michael Walters beat a man to death in 2005. A jury found him guilty of one count of

felonious assault and one count of felony murder. The trial judge sentenced Walters to 15 years to



*
 The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan, sitting by
designation.
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life incarceration for the murder and five years for the felonious assault, with the sentences to run

consecutively.

       Walters appealed. Among his assignments of error was a double jeopardy claim. In 2007,

the Ohio Court of Appeals rejected Walters’s double jeopardy claim based on Ohio’s allied offenses

statute, Ohio Rev. Code § 2941.25, and affirmed the trial court’s judgment. State v. Walters, No.

O6AP-693, 2007 WL 3026956 (Ohio Ct. App. Oct. 18, 2007). In rejecting the claim, the court

relied on the test articulated by the Supreme Court of Ohio in State v. Rance, 710 N.E.2d 699, 704

(Ohio 1999), overruled by State v. Johnson, 942 N.E.2d 1061, 1069 (Ohio 2010). Walters then filed

a notice of appeal to the Ohio Supreme Court. Leave to appeal was denied. State v. Walters, 912

N.E.2d 108 (Ohio 2009) (table op.).

       In June 2009, Walters filed a petition for the writ of habeas corpus in the United States

District Court for the Southern District of Ohio. While his petition was pending, the Supreme Court

of Ohio decided State v. Johnson, 942 N.E.2d 1061 (Ohio 2010), which overruled Rance. The

district court concluded that Johnson has retroactive application. And, based on the Johnson test,

the court found that Walters’s convictions violated the Double Jeopardy Clause. Accordingly, the

court issued a conditional writ of habeas corpus. The Warden appeals.

                                                 II

                                                 A

       The Fifth Amendment of the United States Constitution, among its protections, provides:

“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

With these twenty words, the Double Jeopardy Clause confers three distinct protections: “It protects


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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.” Ohio v. Johnson, 467 U.S. 493, 498 (1984) (internal alteration omitted) (quoting

Brown v. Ohio, 432 U.S. 161, 165 (1977)). At issue here is the final protection.

        The protection against multiple punishments for the same offense, the Supreme Court

instructs, is a function of the constitutional principle of the separation of powers: “Legislatures, not

courts, prescribe the scope of punishments.” Missouri v. Hunter, 459 U.S. 359, 368 (1983); see

generally Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1818 (1997)

(“The Eighth Amendment’s Cruel and Unusual Punishment Clause might impose limits on the total

amount of punishment that can be heaped upon a person for a single ‘act’ or series of acts, but the

Double Jeopardy Clause imposes no limits on how the legislature may carve up conduct into discrete

legal offense units.” (footnotes omitted)).

        The Double Jeopardy Clause is a check against the judiciary — it prohibits courts from

imposing sentences exceeding “the limits prescribed by the legislative branch of government, in

which lies the substantive power to define crimes and prescribe punishments.” Jones v. Thomas,

491 U.S. 376, 381 (1989) (citing Johnson, 467 U.S. at 499).

        When a state statute is at issue, federal courts are bound by the state courts’ interpretation

of the statute, “including one announced on direct appeal of the challenged conviction[.]” Bradshaw

v. Richey, 546 U.S. 74, 76 (2005) (per curiam); see Hunter, 459 U.S. at 368 (“[T]he Missouri

Supreme Court has recognized that the legislature intended that punishment for violations of the




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statutes be cumulative. We are bound to accept the Missouri court’s construction of that State’s

statutes.” (citing O’Brien v. Skinner, 414 U.S. 524, 531 (1974)).

       Likewise, “the retroactive application of new state decisional law to a petitioner’s conviction

after [he] has exhausted [his] appellate remedies is a state-law question, on which the state courts

have the last word.” Volpe v. Trim, --- F.3d ----, No. 11-4365, 2013 WL 70655, at *10 (6th Cir. Jan.

8, 2013) (citing Houston v. Dutton, 50 F.3d 381, 385 (6th Cir. 1995)). If the state supreme court has

not yet rendered a decision on the particular question, “we look to the decisions of the state’s

intermediate courts unless we are convinced that the state supreme court would decide the issue

differently.” Melson v. Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir. 2005).

                                                 B

       Section 2941.25 of the Ohio Revised Code provides that “the same conduct by defendant”

may not be used as the basis for a conviction of “two or more allied offenses of similar import” but

may be used as the basis for a conviction of “two or more offenses of dissimilar import.” Ohio Rev.

Code § 2941.25(A), (B).

       In Rance, the Supreme Court of Ohio interpreted § 2941.25(A) to require a comparison of

the offenses’ elements in the abstract. 710 N.E.2d at 705. Specifically, to determine whether the

Ohio legislature intended to permit cumulative punishment for two or more offenses, courts must

resolve, “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. (quotation marks omitted) (quoting State v. Jones, 676 N.E.2d 80, 81

(Ohio 1997)).


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       Under Rance, Ohio appellate courts repeatedly concluded that the Ohio legislature intended

to permit cumulative punishment for felony murder and felonious assault. See, e.g., State v. Walters,

No. 06AP-693, 2007 WL 3026956, at *20 (Ohio Ct. App. Oct. 18, 2007) (citing State v. Henry, No.

04AP-1061, 2005 WL 1806462, at *11!12 (Ohio Ct. App. Aug. 2, 2005)); Henry, 2005 WL

1806462, at *12 (citing Rance, 710 N.E.2d at 705); State v. Gomez-Silva, No. CA2000-11-230, 2001

WL 1525316, at *13 (Ohio Ct. App. Dec. 3, 2001) (citing Rance, 710 N.E.2d at 705).

       As the Court of Appeals of Ohio explained in denying Walters’s appeal, for example,

“because felony murder involves causing death while committing a first or second-degree felony

of violence, but felonious assault requires knowingly causing serious physical harm to another, the

commission of one crime does not result in the commission of the other.” Walters, 2007 WL

3026956, at *20 (quotation marks omitted) (quoting Henry, 2005 WL 1806462, at *11). “Because

felony murder and the predicate offense of felonious assault thus are not allied offenses of similar

import” under the Rance test, the court concluded that Ohio Revised Code § 2941.25 “authorizes

punishment for both crimes, and no double jeopardy violation occurs.” Id. The court of appeals’

decision, the last state-court adjudication on the merits of Walters’s claim, came in 2007.

       Walters filed his federal habeas petition in June 2009. Eighteen months later, the Supreme

Court of Ohio decided Johnson, declaring: “We take this opportunity to overrule Rance.” 942

N.E.2d at 1063. Instead of simply focusing on abstract elements, Johnson established that courts

must also consider actual conduct. Id. at 1070. More precisely, if “it is possible to commit one

offense and commit the other with the same conduct,” id., the court “must determine whether the

offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of


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mind.’” Id. (quoting State v. Brown, 895 N.E.2d 149, 158 (Ohio 2008) (Lanzinger, J., dissenting)).

       In evaluating Walters’s habeas petition, as noted, the district court concluded that “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.” Walters v. Sheets, 2:09-CV-446, 2011 WL 4543889, at *5 (S.D. Ohio

Sept. 29, 2011) (unpublished).

       A panel of this Court has since concluded that “Johnson does not apply retroactively to cases

where the defendant has already exhausted [his] appellate remedies.” Volpe, 2013 WL 70655, at

*10 (collecting cases). Specifically, the Court held that Johnson could not be applied retroactively

on habeas review given the Ohio appellate courts’ unanimous conclusion that Johnson does not

apply to defendants that have exhausted their remedies on direct review. Here, at the time Johnson

was decided Walters had exhausted his remedies on direct review (indeed, his collateral attack had

been pending for 18 months).

       As noted, stare decisis is the rule in the Sixth Circuit. “A panel of this Court cannot overrule

the decision of another panel.      The prior decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court requires modification of the decision[,]

. . . this Court sitting en banc overrules the prior decision,” Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985), or there has been “a change in the applicable law,” Cooper

v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 2004) . As none of those things has occurred here,

Volpe is binding precedent on this panel.




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                                              III

       We REVERSE the district court’s judgment.




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