McKEAGUE, Circuit Judge.
Warden Jesse Williams appeals from an order of the district court conditionally granting habeas relief to petitioner Charles Goodell. The district court determined that the process by which Goodell was resentenced in the Lucas County (Ohio) Court of Common Pleas, resulting in a sentence longer than the original sentence he had successfully challenged, gave rise to a presumption of vindictiveness. Finding that the presumption was not rebutted
On April 9, 2002, petitioner Goodell was found guilty in the Lucas County Court of Common Pleas of one count of rape, two counts of aggravated burglary, and two counts of felonious assault—all offenses having been committed during two separate incidents on October 31, 2000. The trial proofs showed that Goodell was one of three men hired by a Toledo landlord to use force to collect overdue rent payment from particular tenants, a family of four. The defendants performed their work with zeal. Forcing their way into the tenants' apartment in the early morning hours, they beat the father of the family to the point that he needed medical treatment at a local hospital. Within hours, after he returned from the hospital, the defendants returned to continue their assault. When the father escaped through the bathroom window, two of the defendants pursued him. Defendant Goodell, however, stayed behind and sexually assaulted his wife. Goodell's co-defendants cooperated with the prosecution. In the ensuing jury trial, Goodell did not testify and was found guilty as charged.
The day after the jury returned its verdict, the trial court, Honorable Judith Ann Lanzinger, sentenced Goodell—without the benefit of a presentence report—to a prison term of five years for the rape conviction and four years for each of the other offenses. The four-year sentences were to run concurrently with each other but consecutively to the five-year sentence, yielding a total prison sentence of nine years. On October 29, 2004, the Ohio Court of Appeals reversed this sentence, concluding that Judge Lanzinger had not adequately justified the imposition of consecutive sentences by making the findings required by state law. State v. Goodell, No. L-02-1133, 2004 WL 2426238 (Ohio App. 6 Dist. Oct. 29, 2004).
On remand to Lucas County, Goodell's resentencing was conducted by a different judge, Honorable Gary G. Cook. Judge Cook understood that he was to conduct a plenary resentencing. He ordered the preparation of a presentence report and reviewed the entire trial transcript. The resentencing hearing was conducted on June 23, 2005. Judge Cook determined that the original sentence imposed by Judge Lanzinger was "woefully inadequate" considering the factual circumstances of the case and the defendant's background. Judge Cook imposed a prison sentence of seven years for the rape, four years each for the first burglary and assault, and five years each for the second burglary and assault. Judge Cook ruled that the two four-year sentences for the first burglary and assault would run concurrently with each other, as would the two five-year sentences for the latter burglary and assault. However, he ruled that the combined four-year sentence would run consecutive to the combined five-year sentence and consecutive to the seven-year sentence, yielding a total prison term of sixteen years.
Further, Judge Cook justified his decision to impose consecutive sentences by explaining that there were actually three distinct sets of crimes here—the first burglary and assault, the second burglary and assault, and the sexual assault—and each set of crimes involved a separate animus. Addressing the relevant factors under Ohio law, Judge Cook explained that consecutive sentences were needed to protect the public from future crimes and punish the offender; that the nature of the offenses was such as to cause harm so great or unusual that no single sentence would adequately reflect the seriousness of defendant's conduct; and that defendant's extensive criminal history demonstrated the need for consecutive sentences.
Defendant appealed this sentence, too, and again he obtained relief. On June 30, 2006, the Ohio Court of Appeals ruled that the sentencing court had exceeded its authority. State v. Goodell, No. L-05-1262, 2006 WL 2242893 (Ohio App. 6 Dist. June 30, 2006). The appellate court ruled that it had vacated only a portion of the original sentence; that the terms of incarceration imposed in the original sentence were res judicata or "law of the case;" and that Judge Cook was not authorized to conduct a de novo resentencing, but was constrained to address only the question of whether and how the sentences would run concurrently and/or consecutively. The Court of Appeals thus vacated the sixteen-year sentence and remanded.
Judge Cook undertook the second resentencing on December 19, 2006. He recognized that the Court of Appeals had not ordered that the original sentence be reimposed, but that he was to abide by the terms of incarceration originally imposed by Judge Lanzinger. Consistent with that direction and with his own earlier assessment that three distinct sets of crimes had been committed, Judge Cook ruled that the four-year combined sentence for the first burglary and assault would run consecutively to the four-year combined sentence for the second burglary and assault, and both four-year terms would run consecutively to the five-year sentence for the sexual assault. This resulted in a total prison sentence of thirteen years.
Goodell appealed again, but the Ohio Court of Appeals affirmed. State v. Goodell, No. L-07-1016, 2007 WL 2874334 (Ohio App. 6 Dist. Sept. 28, 2007). The appellate court rejected Goodell's argument that the harsher sentence that resulted after his successful appeals was presumptively vindictive. The court further found no evidence of vindictive motive on the part of the sentencing judge. The Ohio Supreme Court refused to accept the appeal for review.
We review the district court's legal conclusions and rulings on mixed questions of law and fact de novo, and we review its factual findings for clear error. Boykin v. Webb, 541 F.3d 638, 642 (6th Cir.2008). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the federal courts may not grant habeas relief on any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ only if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decided the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Under the "unreasonable application" clause, a federal court may grant the writ only if the state court identified the correct governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the petitioner's case. Id. Yet, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 120 S.Ct. 1495. Rather, to warrant habeas relief, the application must be found to be "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. "AEDPA thus imposes a `highly deferential standard for
In determining whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, a federal court may look only to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Williams, 529 U.S. at 412, 120 S.Ct. 1495. The "clearly established federal law" is "the governing legal principle or principles set forth by the Supreme Court." Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166. "[T]he `lack of an explicit statement' of a particular rule by the Supreme Court `is not determinative' of clearly established law, since `the Court has made clear that its relevant precedents include not only bright-line rules but also the legal principles and standards flowing from precedent.'" Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002)). The court may also look to lower courts of appeals' decisions to the extent they illuminate the analysis of Supreme Court holdings in determining whether a legal principle had been clearly established by the Supreme Court. Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir.2010).
Here, the relevant state-court decision is the September 29, 2007 Ohio Court of Appeals ruling that Goodell had not made the requisite showing of vindictiveness to warrant relief. State v. Goodell, 2007 WL 2874334. In reaching its decision, the appellate court correctly identified two important Supreme Court decisions, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). In Pearce, the Court recognized that where a defendant has successfully challenged his conviction and then is convicted again on retrial, due process is violated if the sentence imposed on resentencing is influenced by vindictiveness on the part of the sentencing court. 395 U.S. at 725, 89 S.Ct. 2072. Recognizing that retaliatory motivation could be difficult to prove, the Court held that whenever a more severe sentence is imposed on resentencing, the reasons, based on objective information, must affirmatively appear in the record. Id. at 726, 89 S.Ct. 2072. Because no record of such reasons had been made in the two cases then before it, the Pearce Court upheld the award of habeas relief in both cases. Although the notion of a "presumption" appears nowhere in the Pearce opinion, the ruling has since been read to apply "a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (applying the presumption but finding it rebutted by the sentencing court's careful explanation of reasons for imposing a greater sentence).
In McCullough, the Court revisited the issue of vindictiveness and the teaching of Pearce. After McCullough was initially convicted of murder and sentenced by the jury to a prison sentence of twenty years, the trial court granted his motion for new trial based on prosecutorial misconduct. McCullough, 475 U.S. at 135-36, 106 S.Ct. 976. McCullough had a second jury trial, with the same trial judge presiding. After the jury found him guilty, McCullough elected to be sentenced by the trial judge,
Relying on these authorities, as well as state court precedents applying them, the Ohio Court of Appeals concluded that the presumption of vindictiveness did not apply in this case because the harsher thirteen-year sentence was imposed by a different sentencer than had imposed the original nine-year sentence. Goodell, 2007 WL 2874334 at *3. The court also determined that Goodell had failed to identify evidence of actual vindictiveness. Id. at *3-4. The court thus affirmed the thirteen-year prison sentence.
With reference to the same Supreme Court authorities, the district court concluded that Goodell's case "is on all fours with Pearce" and that the narrow holding of Pearce remained the governing and clearly established federal law at the time of Goodell's resentencings. Goodell, 676 F.Supp.2d at 644-47. Applying Pearce, the court concluded that the presumption of vindictiveness does apply in this case. The Ohio Court of Appeals' contrary holding was thus deemed to be contrary to clearly established federal law. Id. at 645. Further, the court observed in a footnote that the presumption had not been rebutted. Id. at 647 n. 7. Therefore, habeas relief was conditionally granted.
The district court's ruling rests fundamentally on the determination that Pearce defines the governing "clearly established federal law." Indeed, Pearce is the seminal Supreme Court holding, recognizing that judicial vindictiveness in sentencing violates due process. Yet, as the district court recognized, the Supreme Court has had numerous occasions in the last forty years to narrow, clarify and explain the import of Pearce in the context of analogous resentencing situations. In McCullough, the Court recounted some of this history and attempted to distill its wisdom:
McCullough, 475 U.S. at 138, 106 S.Ct. 976.
The McCullough Court thus recognized that the Pearce presumption does not apply in every case where a convicted defendant receives a higher sentence on retrial, but only where the circumstances of the particular case give rise to a need to guard against vindictiveness. The presumption is inappropriate if there is "no realistic motive for vindictive sentencing." Id. at 139, 106 S.Ct. 976. See also Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (recognizing that the presumption applies only where the circumstances give rise to a "reasonable likelihood" that the sentence increase was the product of actual vindictiveness); Goodwin, 457 U.S. at 373, 102 S.Ct. 2485 (same). The McCullough Court held that the circumstances do not give rise to a need to apply the presumption where, as here, the varying sentences were imposed by different sentencers. McCullough, 475 U.S. at 140, 106 S.Ct. 976. In such circumstances, the court noted, "a sentence `increase' cannot truly be said to have taken place." Id.
The district court acknowledged that McCullough represented a "direct challenge to Pearce." Goodell, 676 F.Supp.2d at 645. Noting, however, that McCullough had stopped short of overruling Pearce, the district court narrowly construed McCullough as declining to extend the Pearce presumption, not in all cases where varying sentences are imposed by different sentencers, but only where, as in McCullough, the first sentencer was a jury and the second a judge. Id. at 646. This narrowing construction of McCullough's broad language was justified, the district court reasoned, because Pearce itself had involved varying sentences imposed by different judges. The district court stated that the McCullough Court "had no occasion to decide whether the presumption applies when the second sentencer is a different judge on the same court as the judge who originally sentenced the defendant." Id.
Yet, the McCullough Court itself expressly disavowed this construction in footnote 3:
McCullough, 475 U.S. at 140 n. 3, 106 S.Ct. 976. The McCullough Court thus expressly rejected the notion that Pearce stands for the proposition that the presumption applies where there are two different sentencers absent other circumstances that give rise to a need to protect against vindictiveness. In Pearce, McCullough noted, there were "other circumstances" that drove the holding; namely, the State's failure to "offer `any reason or justification' for the increased sentence." Id. at 142 n. 4, 106 S.Ct. 976 (quoting Pearce, 395 U.S. at 726, 89 S.Ct. 2072).
The district court did not overlook McCullough's instruction, but concluded: "Nevertheless, McCullough does not change the status of Pearce's holding as clearly established law." Goodell, 676 F.Supp.2d at 646. The district court thus implicitly considered McCullough's unambiguous teaching to be dicta beyond the scope of its holding and therefore impotent to alter the state of clearly established federal law.
But we find additional guidance in McCullough's note 4, where the Court further explained the background of the Pearce decision:
McCullough, 475 U.S. at 142 n. 4, 106 S.Ct. 976 (citations omitted). Again, the Court endeavored to make clear that the rule Pearce stands for is not as broad as its language could be construed to mean and that it is, as a judicially created prophylactic rule, subject to "tailoring" by the Court. The Court unmistakably undertook a measure of tailoring in McCullough. It can hardly be denied, on a fair reading of McCullough, that the Court intended to make it clear that a presumption of vindictiveness does not apply where an increased sentence is imposed by a different sentencer absent other circumstances demonstrating a need to guard against vindictiveness. In fact, the McCullough majority opinion concludes: "It is appropriate that we clarify the scope and thrust of Pearce, and we do so here." Id. at 144, 106 S.Ct. 976.
The "clearly established law" inquiry begins with the holdings, as opposed to the dicta, of the Supreme Court's decisions. Williams, 529 U.S. at 412, 120 S.Ct. 1495. In determining the "governing legal principles," Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166, to be derived from the Supreme Court's holdings, we are hardly at liberty to ignore how the Supreme Court itself has later characterized, defined and "tailored" its holdings by the time of the state court decision being reviewed. In McCullough, the Supreme Court took pains to make clear that Pearce does not
That this clarified principle derived from McCullough has become "clearly established" is also attested to by our own prior precedents. See Gonzales v. Wolfe, 290 Fed.Appx. 799, 812-13 (6th Cir.2008) (following McCullough and holding presumption not warranted where different judge imposed sentence after defendant's successful appeal). In Gauntlett v. Kelley, 849 F.2d 213 (6th Cir.1988), too, we applied McCullough's teaching as clarifying and defining the scope of Pearce:
Id. at 217 (citations omitted). Notably, seven of our sister circuits have similarly concluded that the presumption does not apply when the varying sentences are imposed by different judges. See United States v. Rodriguez, 602 F.3d 346, 358 (5th Cir.2010) (collecting cases).
Accordingly, we conclude the district court erred in its determination that the Ohio Court of Appeals' decision, applying the principles enunciated in McCullough, is contrary to clearly established federal law.
Moreover, we find the district court erred in its conclusion that the presumption had not been rebutted. The district court simply stated that the presumption was not rebutted without any discussion of the record evidence that either supported or refuted the presumption. Goodell, 676 F.Supp.2d at 647 n. 7. Though the Warden did not argue the rebuttal issue extensively at the district court level, it was nonetheless incumbent on the district court, before habeas relief could be granted, to hold that the state court's ruling was contrary to or an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). The Ohio Court of Appeals, after concluding that the presumption was not applicable, did not address whether the presumption was rebutted. However, the appellate court properly went on to consider the evidence of actual vindictiveness, and found none. Goodell, 2007 WL 2874334 at *3-4. The appellate court specifically considered Judge Cook's statement to Goodell, at the close of the second resentencing hearing, "Okay. We'll see you back here probably in a couple of years." The court reasonably rejected the argument that this statement evidenced vindictiveness, finding that it simply reflected Judge Cook's cognizance of the pattern that had been established as Goodell's two prior sentences had been vacated and remanded.
Moreover, and more importantly, because Goodell's counsel astutely raised the question of vindictiveness at the first resentencing hearing, Judge Cook took the opportunity to carefully explain his thinking. After thoroughly reviewing the trial transcript and the newly prepared presentence report (containing objective information not available to the first sentencing judge), Judge Cook explained that his decision to run some of the sentences consecutively was driven by concerns about Goodell's extensive criminal history and the violence of the offense conduct. Judge Cook recognized that the offense conduct involved three different episodes, each with a separate criminal animus. He concluded that consecutive sentencing was necessary to reflect the seriousness of the offenses, to protect the public, and to punish Goodell.
Judge Cook's reasoning is in all respects plausible, reasonable and supported by the record. This is sufficient. See McCullough, 475 U.S. at 140, 106 S.Ct. 976 (reading Pearce as requiring no more than "an on-the-record, wholly logical, nonvindictive reason for the sentence"). In response, Goodell, has not identified evidence impugning the integrity of Judge Cook's given reasons. Nor has he identified evidence of actual vindictiveness.
To be sure, Goodell was understandably disappointed to learn, after successfully
For all the foregoing reasons, the order of the district court conditionally granting habeas relief is