                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0541n.06

                                            No. 12-3996


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT                                   FILED
                                                                                       Jun 03, 2013
DANTE PERSON,                                                                   DEBORAH S. HUNT, Clerk

       Petitioner-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
MICHAEL SHEETS,                                        SOUTHERN DISTRICT OF OHIO

       Respondent-Appellant.

                                                 /




BEFORE:        MERRITT, CLAY, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Petitioner, an inmate in Ohio, filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254(d)(1). The district court granted that petition in part on the

basis of the Double Jeopardy Clause, U.S. Const. amend. V, because it found that the State of Ohio

had sentenced Petitioner twice for crimes that the state court was constitutionally required to merge

for the purpose of sentencing. The district court directed the State of Ohio to re-sentence Petitioner.

The state appeals, arguing that the district court erred in its interpretation of the Double Jeopardy

Clause under governing Ohio law. For the following reasons, we REVERSE the district court’s

decision to grant the writ.
                                            No. 12-3996

                                         BACKGROUND

       A.      Facts

       The convictions leading to the instant petition stem from an incident that took place in early

2006. As the Ohio Court of Appeals described the incident:1

       Cincinnati Police Officers Kristina Holtmann and Laureen Smith were on routine
       patrol in the early morning hours of January 11, 2006. The officers passed a vehicle
       with windows that appeared to be too darkly tinted. Additionally, the rear license
       plate was not illuminated. The officers activated their overhead lights and made a
       U-turn. The vehicle stopped and backed into a driveway before the police unit
       reached it. Officer Smith approached the driver’s side and Officer Holtmann
       approached the passenger side. The driver of the car, Bryan Caulton, had an
       outstanding warrant. Officer Smith arrested Caulton and placed him in the backseat
       of the police car.

       While Officer Smith was dealing with Caulton, Officer Holtmann asked Person, who
       was in the front passenger seat, for identification. He did not have identification, but
       gave Officer Holtmann his name and date of birth. Based on previous encounters
       with Person, Officer Holtmann believed that he had given a false last name and asked
       him to exit from the vehicle. After he emerged, Officer Holtmann ordered him to
       place his hands behind his back. Person turned, produced a handgun, and shot Officer
       Holtmann in the face.

       Person immediately fled. As he was running, Officer Holtmann saw him turn and
       point his gun at her. At this point, she and Officer Smith returned fire. One of the
       shots struck Person in the leg, but he was able to continue fleeing.

       As officers were establishing the crime scene, a witness came forward and told police
       that Person was in the basement of a nearby residence. A perimeter was established
       around the house until a S.W.A.T. unit could arrive. Police then began a systematic
       search of the house, discovering Person in the basement. After Person was taken into



       1
         Under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” Petitioner has not presented evidence that
demonstrates any error in the Ohio court’s decision and accordingly, these facts are presumed
correct. See Thompson v. Bell, 580 F.3d 423, 434 (6th Cir. 2009).

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       custody, he was asked what he had done with the handgun. He told an officer to “go
       fuck [himself].”


(R. 10, Report and Recommendation, Mar. 30, 2011, at 2.) (quoting State v. Person, 881 N.E.2d 924,

926–27 (Ohio Ct. App. 2007)).

       B.      Procedural History

       Petitioner was indicted on January 20, 2006. The nine-count indictment charged Petitioner

with two counts of attempted murder with a firearm specification, Ohio Rev. Code § 2923.02(A),

three counts of felonious assault with firearm specifications in violation of Ohio Rev. Code §

2903.11(A)(1)–(2), and one count each of carrying a concealed weapon in violation of Ohio Rev.

Code § 2923.12(A), carrying a weapon while under a disability in violation of Ohio Rev. Code §

2923.13(A)(3), possession of cocaine with a firearm specification in violation of Ohio Rev. Code

§ 2925.11(A), and burglary in violation of Ohio Rev. Code § 2911.12(A)(2). He was tried by jury

in Ohio state court on all charges except the weapons-under-disability charge, which was tried by

the bench. After the state presented its case, the trial court acquitted Petitioner on the burglary

charge, as well as on one of the attempted murder charges. (Id.). After the trial, the jury convicted

Petitioner on the two counts of felonious assault with a firearm specification pursuant to Ohio Rev.

Code. § 2903.11(A)(1) & (2), as well as the charges of carrying a concealed weapon and having a

weapon while under a disability. Petitioner was sentenced on July 13, 2006. At sentencing, the

court found that the two felonious assault sentences should run consecutively, and sentenced

Petitioner to a term of thirty-three years and six months imprisonment, based on two consecutive ten-

year terms for the felonious assaults, five years for the weapon while under a disability charge,


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eighteen months for the concealed weapon charge, and seven years for the firearm specifications,

which were merged at sentencing.

       Petitioner appealed to the Ohio Court of Appeals, where he raised the claim that “[t]he trial

court erred by imposing consecutive sentences on the felonious assault.” (Report and

Recommendation at 3.) The court denied Petitioner’s appeal, over the dissent of Judge Painter. The

court found that under State v. Payne, 2007 WL 1859302 (Ohio Ct. App. Dec. 21, 2007), “felonious

assault in violation of R.C. 2903.11(A)(1) and felonious assault in violation of R.C. 2903.11(A)(2)

are not allied offenses. Based upon our decision in Payne, we overrule [Defendant’s] third

assignment of error.” Person, 881 N.E.2d 924, 929 (Ohio Ct. App. 2007). Judge Painter dissented,

writing that: “[a]s I said when dissenting in Payne, ‘One gun, one shot, one felonious assault.’

Nothing has changed since then; in fact, nothing has changed since the Double Jeopardy Clauses of

the Ohio and the United States Constitutions became effective, except for misguided and bizarre

Ohio court decisions that defy logic, law, and common sense.” Id. at 932. (internal citation omitted).

       While Petitioner did not timely file his appeal with the Ohio Supreme Court, he was

permitted to file an appeal, in which he raised the claim that the sentence was improper because the

assault convictions were allied offenses that should have been merged for the purpose of sentencing.

The Ohio Supreme Court affirmed the conviction with a summary order, which stated that is was

affirming the court of appeals “on the authority of State v. Brown, 895 N.E.2d 149 (Ohio 2008).”

State v. Person, 898 N.E.2d 961, 961 (Ohio 2008). Petitioner’s motion for reconsideration was

denied without opinion.




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        Petitioner then filed in federal court, asking the district court to grant him a writ of habeas

corpus. He raised three grounds for the writ: that his due process rights under the Fifth and

Fourteenth Amendments had been violated because the trial court sentenced him twice for the same

offense; that his equal protection rights had been violated because he was sentenced twice for the

same offense, and that his right to a fair trial under the Sixth Amendment had been violated because

the trial court had permitted the state to proceed despite discovery violations. The district court

referred the case to Magistrate Judge Karen Litkovitz for a report and recommendation. The

magistrate recommended that the district court deny the petition on all grounds except one. The

magistrate recommended granting the petition on the basis of the Double Jeopardy Clause, finding

that Petitioner had been sentenced twice for the same offense under Ohio merger law. The district

court adopted the report and recommendation in its entirety. The state of Ohio now appeals, asking

this Court to overturn the district court’s grant of the writ.

                                             ANALYSIS

        A.      Standard of Review

        On appeal of a grant of a writ of habeas corpus, “we review the district court’s legal

conclusions de novo and its factual findings for clear error.” Hanna v. Ishee, 694 F.3d 596, 605 (6th

Cir. 2012) (citing Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009)). The district court’s findings

of fact are clearly erroneous when “we are left with the definite and firm conviction that a mistake

has been committed.” United States v. Canipe, 569 F.3d 597, 600 (6th Cir. 2009) (citing United

States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)).




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        B.      The AEDPA

        Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court

may not grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state

court unless the state adjudication:

        (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). A federal court may not issue the writ “simply because it concludes in its

independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor,

529 U.S. 362, 411 (2000). “[C]learly established federal law, as determined by the Supreme Court

of the United States” refers to the holdings, rather than dicta, of the decisions of the Supreme Court.

Howes v. Fields, --- U.S. ---, 132 S. Ct 1181, 1187 (2012) (quoting Williams, 529 U.S. at 362).

        A decision is “contrary to” clearly established federal law where “the state court arrives at

a conclusion opposite to that reached by this Court on a question of law . . . [or] confronts facts that

are materially indistinguishable from a relevant Supreme Court precedent and arrives at a [the

opposite] result.” Williams v. Taylor, 529 U.S. at 405. Furthermore, an unreasonable application

must be distinguished from an incorrect application. Harrington v. Richter, --- U.S. ---, 131 S. Ct.

770, 785 (2011) (quoting Williams at 410). A state court decision which is merely incorrect, rather

than unreasonable, is still entitled to deference by a federal court in a habeas proceeding. Id. As a




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result, the more general the rule, the greater the leeway accorded to a state court’s decision under

federal habeas review. Id. at 786.

        In addition, federal courts have limited authority to review a state court’s interpretations of

its own state’s laws; where the highest court in a state has interpreted that state’s statute, a federal

court must defer to the state court’s interpretation. Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013).

“Thus, for purposes of double jeopardy analysis, once a state court has determined that the state

legislature intended cumulative punishments, a federal habeas court must defer to that

determination.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989); accord Volpe, 708 F.3d at 697.

The United States Supreme Court has clarified that for the purposes of habeas, the relevant

“temporal cutoff” for whether the law is clearly established is “when direct state appeals have been

exhausted and a petition for writ of certiorari from [the United States Supreme Court] has become

time barred or has been disposed of.”2 Greene v. Fisher, --- U.S. ---, 132 S. Ct. 38, 44 (2011).

        C.      Double Jeopardy3

        The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states

that “[n]o person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb . . . .” The clause was incorporated against the states through the enactment of the Fourteenth


        2
         The Supreme Court of Ohio entered its judgment on December 9, 2008. A “petition for a
writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last
resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the
judgment.” Sup. Ct. R. 13. Accordingly, the judgment became final for the purposes of habeas
review on March 9, 2009.
        3
        The district court also addressed the question of whether Petitioner’s claim under the Double
Jeopardy Clause was fairly presented to the state court, and concluded that it was. The state does
not pursue this argument before this Court.

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Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). It is clearly established law that a

defendant may not be subject to multiple punishments unless the state legislature intended to so

punish. Missouri v. Hunter, 459 U.S. 359, 367–68 (1983). In contrast to most habeas claims, which

are based entirely on federal constitutional rights, a claim under the Double Jeopardy Clause requires

analysis of state law; because the state legislature has the authority to define and punish crimes, the

definition of multiple punishments is dependent on the legislative intent of the state government.

Volpe, 708 F.3d at 697. Ohio has enacted a statute regarding multiple punishments. It states,

“[w]here 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.” Ohio. Rev. Code § 2941.25(A).

       There is a long history of interpretation of this statute by the Ohio Supreme Court. In State

v. Rance, 710 N.E.2d 699 (Ohio 1999), the Ohio Supreme Court found that a defendant could be

sentenced separately for convictions for involuntary manslaughter and aggravated robbery, without

offending double-jeopardy principles. Id. at 702. In that case, the Ohio Supreme Court stated that

“[t]he applicable test for deciding [whether two crimes are of similar import] is as follows: If 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. at 703 (internal

quotation marks and citations omitted). If the crimes are allied offenses, then a court must proceed

to the second step, and review “the defendant’s conduct . . . to determine whether the defendant can

be convicted of both offenses. If the court finds either that the crimes were committed separately




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or that there was a separate animus for each crime, the defendant may be convicted of both offenses.”

State v. Blankenship, 526 N.E.2d 816, 817 (Ohio 1988) (emphasis in original).

       In State v. Cabrales, 886 N.E.2d 181 (Ohio 2008), the Ohio Supreme Court revisited the

Rance test. In that case, the court found that “[c]ourts have struggled applying Rance’s abstract

elements-comparison test.” Id. at 185. It held that Rance had been “misinterpreted,” and that

“Rance [does not] mandate that the elements of compared offenses must exactly align for the

offenses to be allied offenses of similar import under R.C. 2941.25(A).” Id. at 186. The court went

on to find that in the abstract, the elements of the defendant’s two convictions for possession of

controlled substances and trafficking in controlled substances were allied offenses, and that the

defendant was motivated by “a single animus: to sell [the drugs].” Id. at 188. Accordingly, it found

that he could not be convicted of both offenses.

       The Ohio court further clarified its definition of animus for the purposes of double jeopardy

in State v. Brown, 895 N.E.2d 149 (Ohio 2008), its most recent interpretation of this statute. In that

case, the defendant had gotten into an argument with her boyfriend. The argument concluded when

the defendant stabbed her boyfriend with a serrated steak knife. Brown, 895 N.E.2d at 151. She was

then charged with two counts of felonious assault and one count of domestic violence, and the jury

was additionally instructed on the included offense of aggravated assault. The defendant was

ultimately acquitted on the felonious assault charges, but convicted of two counts of aggravated

assault under alternate theories in Ohio Revised Code §§ 2903.12(A)(1) and (A)(2). Id. at 151–52.

On appeal, the Ohio Supreme Court found that the defendant could not be convicted of both charges

of aggravated assault. While it was permissible for prosecutors to present alternate theories of


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aggravated assault under Ohio Rev. Code § 2903.12(A)(1) & (A)(2), there had only been one act,

and accordingly, the two offenses had to have been committed with the same animus.

       D.      Petitioner’s Claim Under the Double Jeopardy Clause

       Turning to the instant case, it was not unreasonable for the Ohio court to find that Petitioner’s

two convictions could have been separate offenses under the Ohio Revised Code. Petitioner was

convicted of two counts of felonious assault. Under Ohio statutory law, “[n]o person shall

knowingly do either of the following: (1) Cause serious physical harm to another or to another's

unborn; (2) Cause or attempt to cause physical harm to another or to another's unborn by means of

a deadly weapon or dangerous ordnance.” Ohio Rev. Code § 2903.11(A)(1)–(2). As the Ohio court

found in Brown, the subdivisions “set forth two means of committing the same offense—causing

serious physical harm to another, or causing or attempting to cause physical harm by means of a

deadly weapon . . . .” Brown, 895 N.E.2d at 156.4 Therefore the two means are allied offenses; they

represent the same offense, and show the intent of the legislature to protect people from physical

harm. Id. But that only shields a defendant from punishment on double jeopardy grounds if his

conduct shows that he committed the two acts with a single animus.

       In this case, Petitioner shot Officer Holtmann in the face. As he ran away, he pointed his gun

at Officer Holtmann a second time. Under Ohio law, pointing a gun—if there is evidence of an

actor’s intention—can constitute felonious assault. See State v. Seiber, 564 N.E.2d 408, 420–21



       4
          In Brown, the court interpreted Ohio’s aggravated assault statute, Ohio Rev. Code
§ 2903.12(A)(1)–(2), as opposed to the felonious assault statute at issue in this case, id.
§ 2903.11(A)(1)–(2), but the particular subdivisions pertinent to this point are identical under both
statutes.

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(Ohio 1990); State v. Brooks, 542 N.E.2d 636, 642 (Ohio 1989) (“The act of pointing a deadly

weapon at another, without additional evidence regarding the actor’s intention, is insufficient

evidence to convict a defendant of the offense of ‘felonious assault’ as defined by R.C.

2903.11(A)(2)”); State v. Busa, 1990 WL 40280 at *2 (Ohio Ct. App. Apr. 5, 1990). And intention

can be inferred from acts that themselves constitute crimes, without requiring merger of the two

offenses. Seiber, 564 N.E.2d at 421. Pointing a weapon combined with implicit threats has been

held to constitute assault. See, e.g., State v. Green, 569 N.E.2d 1038, 1041 (Ohio 1991) (holding that

jury could find intent where “defendant held a rifle aimed at Mongold's head. The rifle was loaded,

the hammer was cocked . . . Moreover, at the instant defendant positioned his weapon in the

direction of the officers, he shouted, ‘If you don’t have a warrant get the fuck out of my house.’”).

        Petitioner had already fired his gun, hitting a police officer in the face. He had turned to flee,

and while doing so, looked back and pointed his gun at the officer again. Each of these facts are

suggestive of his intent to fire again; accordingly, there was sufficient evidence of intent for a court

to find that pointing his gun was itself a felonious assault. The court could have found that his first

shot was intended to injure the officer, and that his second was part of an intent to flee, or that his

first shot was motivated by an attempt to escape, while the second attempt to shoot was based on

anger at the officers having fired on him. Therefore it was not an unreasonable application of Ohio

law, as established in the Brown decision, to find that Petitioner acted with a separate animus to

support each of the two counts of felonious assault, because there is no clearly established law that

states that the two acts necessarily had a single animus.




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                                           No. 12-3996

       The magistrate judge identified a significant problem with the decisions of the Ohio courts:

while the court of appeals decided the case on the basis of Payne, State v. Person, 881 N.E.2d 924,

929 (Ohio Ct. App. 2007), the Supreme Court of Ohio affirmed the case “on the authority of State

v. Brown.” State v. Person, 120 Ohio St.3d 323, 323 (2008). But the Brown decision overturned

the prior holding in Payne that the offenses under Ohio Rev. Code 2903.11(A)(1) & (2) are not allied

offenses. See Brown, 895 N.E.2d at 150–51. It seems inconsistent for the Ohio Supreme Court to

uphold the application of Ohio’s consecutive sentencing law on the basis of Brown, when the Brown

decision explicitly reversed the Payne decision on this point of law. Thus, the magistrate judge

concluded that the Ohio Supreme Court’s decision was an objectively unreasonable application of

federal law because it incorrectly applied its own precedent on state legislative intent. While we

agree with the magistrate judge that the decision of the Ohio Supreme Court is worrisome, “[o]ur

task is not to determine whether the state court reached the correct outcome, but rather to determine

whether the court’s application of clearly established federal law is objectively unreasonable—‘a

substantially higher threshold.’” Hereford v. Warren, 536 F.3d 523, 527 (6th Cir. 2008) (quoting

Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007)).

       Accordingly, while we find the reasoning of the Ohio court troubling, it does not give rise

to a grant of habeas relief. Under the AEDPA this Court reviews the last reasoned state court

decision. The last reasoned state court decision was the Supreme Court of Ohio’s decision in State

v. Person, 898 N.E.2d 961, 961 (Ohio 2008). See Cullen v. Pinholster, 563 U.S. ---, 131 S. Ct. 1388,

1402 (2011) (“Section 2254(d) applies even where there has been a summary denial.”). That

decision affirmed the judgment of the Ohio Court of Appeals, but substituted its own reasoning.


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Even when a state court does not provide analysis, this Court must show significant respect to state

court decisions:

        Even in the case of a summary denial, when the state court has not fully explained
        the rationale for its decision, the reviewing “habeas court must determine what
        arguments or theories could have supported the state court's decision; and then it
        must ask whether it is possible [that] fairminded jurists could disagree that those
        arguments or theories are inconsistent with the holding in a prior [Supreme Court]
        decision.”

Gagne v. Booker, 680 F.3d 493, 514 (6th Cir. 2012) (en banc) (quoting Pinholster, 131 S.Ct. at

1402) (emphasis added).

        In this case, the apparent contradiction between the intermediate appellate court’s decision

that the two offenses are not allied and the Ohio Supreme Court’s decision based on Brown can be

reconciled by reference to the second part of the Brown analysis: was there a separate animus behind

both crimes? While the Brown decision reversed Payne on the question of whether Ohio Rev. Code

§ 2903.11(A)(1) & (2) are allied offenses, it did not find that the two crimes must merge in all cases.

Because the court in Payne found that the two offenses were not allied, it never reached the question

of whether one could commit the crimes with a separate animus. And there is no clearly established

law suggesting that these two acts are necessarily committed with a single animus. If anything, the

dissenting opinion in this case’s decision before the Ohio Court of Appeals, which criticized a part

of the Payne decision that Brown did not overrule, seems to suggest quite the opposite: that it is

clearly established that one shot and one victim can still lead to more than one conviction under Ohio

law. While this Court may find it easier to believe that the two acts were both driven by the same

desire to evade arrest (or harm Officer Holtmann), it was not so unreasonable as to give rise to a

grant of habeas for the state court to find that the two acts were sufficiently disconnected that the two

                                                   13
                                           No. 12-3996

crimes did not have to merge for the purposes of sentencing. Accordingly, the state court’s decision

was not contrary to nor an unreasonable application of clearly established law.



                                         CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s grant of a writ of habeas corpus,

and REMAND for further proceedings consistent with this opinion.




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