                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0885n.06
                                                                                           FILED
                                           No. 10-3331                                Dec 27, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


JOSEPH FEATHERKILE,                                      )
                                                         )        ON APPEAL FROM THE
       Petitioner-Appellant,                             )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE SOUTHERN
v.                                                       )        DISTRICT OF OHIO
                                                         )
WANZA JACKSON, Warden,                                   )                           OPINION
                                                         )
       Respondent-Appellee.                              )




BEFORE:        COLE, MCKEAGUE, and GRIFFIN, Circuit Judges.

       PER CURIAM. Petitioner-Appellant Joseph Featherkile was convicted by a Hamilton

County, Ohio, jury on November 22, 1999, on four counts of gross sexual imposition in violation

of Ohio Revised Code § 2907.05(A)(4). The trial court sentenced Featherkile to two years’

imprisonment for the first count and five years for each of the three remaining counts, all to be

served consecutively, for a total of seventeen years. Featherkile was resentenced in 2006 under the

new, discretionary sentencing regime ushered in by the Ohio Supreme Court’s application of United

States v. Booker, 543 U.S. 220 (2005), to the Ohio’s sentencing structure. See State v. Foster, 845

N.E.2d 470 (Ohio 2006).        At his 2006 resentencing, the court imposed the same term of

imprisonment–seventeen years. After exhausting his remedies before the Ohio appellate courts,

Featherkile filed a petition for a writ of habeas corpus, arguing that his resentencing based on the

new discretionary sentencing procedure violates the ex post facto and due process clauses of the
No. 10-3331
Featherkile v. Jackson

Fourteenth Amendment to the United States Constitution. In particular, Featherkile argues that his

new sentence imposes a new and retroactive punishment because it is greater than the “presumptive

minimum” sentence applicable prior to Foster. The district court denied the petition.

       Featherkile’s claim is the same as that advanced by the petitioner in our recent case of

Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). As we explained in Ruhlman,

resentencings pursuant to Ohio’s discretionary sentencing scheme established by Foster, even when

it results in a sentence greater than the pre-Foster presumptive minimum sentence, do not violate ex

post facto or other due process clause principles. Ruhlman, No. 09-4523, slip op. at 6-12. Thus, for

the reasons stated in Ruhlman v. Brunsman, we AFFIRM the denial of the petition by the district

court for a writ of habeas corpus.




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