NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1089n.06

                                            No. 11-4190
                                                                                          FILED
                            UNITED STATES COURT OF APPEALS
                                                                                      Oct 18, 2012
                                                                                DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


QUILL VANOVER,                                        )
                                                      )
       Petitioner-Appellant,                          )       On Appeal from the United
                                                      )       States District Court of the
v.                                                    )       Southern District of Ohio
                                                      )
WARDEN, LEBANON                                       )
CORRECTIONAL INSTITUTION                              )
                                                      )
       Respondent-Appellee.                           )


       Before: CLAY and WHITE, Circuit Judges; and HOOD, District Judge.*

       Hood, District Judge. Petitioner-Appellant Quill Vanover argues that an increased jail

sentence from eight years to twenty-three years during resentencing after remand creates a

presumption of vindictiveness, and is therefore unconstitutional under North Carolina v. Pearce, 

(1969), overruled on other grounds by Alabama v. Smith, 

(1989), and its

progeny. Petitioner also claims that the second sentencing judge exercised actual vindictiveness

during his resentencing because Petitioner was held in prison for seven weeks between his successful

appeal and his resentencing hearing, and because no new conduct or events occurred between his

first and second sentencing. Thus, he argues that the district court erred when it denied his petition

for a writ of habeas corpus. We disagree. For the reasons set forth below, the judgment of the

district court is AFFIRMED.

*
 The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
                                         BACKGROUND

       Petitioner was originally indicted in 2004 on a number of felony charges arising out of a

violent dispute with his ex-wife. Specifically, Petitioner was charged with two counts of kidnapping

with firearm specifications, one count of abduction with a firearm specification, one count of bribery,

one count of having weapons while under disability, one count of domestic violence, one count of

menacing by stalking, and one count of intimidation. Pursuant to a plea agreement that included an

agreed eight-year sentence, Petitioner pled guilty to one count of intimidation and one count of

bribery, and the remaining charges were dismissed. Judge Gerald Lorig sentenced Petitioner to the

agreed eight-year sentence.

       On Petitioner’s appeal, the Ohio Court of Appeals reversed because of a defect in the

indictment. A grand jury re-indicted Petitioner on August 1, 2005, on the same charges as in the

original indictment. Under a new plea agreement, Petitioner again pled guilty to one count of bribery

and one count of intimidation, but also pled guilty to one count of kidnapping with a firearm

specification. There was not an agreed sentence in this second plea agreement.

       Petitioner’s case was set for resentencing before Judge Douglas Rastatter on November 4,

2005. Judge Rastatter sentenced Petitioner to a total prison term of twenty-three years. On appeal,

Petitioner claimed that the new sentence was vindictive. The Ohio Court of Appeals rejected this

argument since there were two different judges at the sentencing hearings, and Vanover’s new

sentence included a kidnapping count with a firearm specification, but again remanded the case for

an issue that is not before this court. On remand, Judge Rastatter sentenced Petitioner to the same

twenty-three year sentence as before.




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       After exhausting his appeals in state court, Petitioner filed a habeas petition on June 4, 2009,

which was denied. The district court granted a certificate of appealability to this court solely on

Petitioner’s vindictiveness claim. Petitioner filed this timely appeal.

                                    STANDARD OF REVIEW

       Dismissals of habeas petitions brought pursuant to 28 U.S.C. § 2254 are reviewed de novo,

but a district court’s factual findings are reviewed for clear error. Hall v. Warden, 

, 749

(6th Cir. 2011); Thompson v. Bell, 

, 433 (6th Cir. 2009). The standard of review in the

Antiterrorism and Effective Death Penalty Act controls habeas petitions filed under 28 U.S.C. §

2254. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat.

1214, 1218–19 (1996) (“AEDPA”).

       Under AEDPA, “a federal court may not grant a writ of habeas corpus to a state prisoner with

respect to any claim adjudicated on the merits unless (1) the state court’s decision was ‘contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,’” or “(2) the state court’s decision ‘was based on an unreasonable application of the

facts in light of the evidence presented in the state court proceedings.’” 

–34 (quoting § 2254(d)(1)-(2)).

       “If [the AEDPA standard of review] is difficult to meet, that is because it was meant to be.”

Harrington v. Richter, 

, 786 (2011). Section 2254(d) merely “preserves authority to

issue the writ in cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with th[e Supreme] Court’s precedents,” but “goes no farther.” 

       If a defendant successfully challenges his conviction and is convicted again on retrial, the

defendant’s due process rights are violated if the resentencing judge vindictively imposes a more

severe sentence. 

. Because retaliatory motivation is objectively difficult to

prove, a presumption of vindictiveness arises when the same sentencing authority imposes a more

severe sentence after a defendant’s successful appeal. See 

see also United States v.

Goodwin, 

, 374 (1982) (remarking that the Pearce court effectively applied a

presumption of vindictiveness although it did not refer to it as such, and applying the presumption).

Once raised, the presumption may be rebutted “only by objective information in the record justifying

the increased sentence.” 

. If the presumption of vindictiveness does not

apply, a defendant can still prevail if he can show that the resentencing judge exercised actual

vindictiveness. United States v. Jackson, 

, 744 (6th Cir. 1999). The defendant bears

the burden of proving actual vindictiveness. 

.

       In this case, because the trial judge and the resentencing judge were two different judges, and

because there are not any other circumstances evidencing vindictiveness, the presumption of

vindictiveness does not apply. Furthermore, Petitioner has failed to establish actual vindictiveness.

Therefore, the district court correctly denied his habeas petition.

       1.      The presumption of vindictiveness does not apply.

       Generally, the presumption of vindictiveness does not apply when the second sentencing

authority is a different entity than the original sentencing authority. Texas v. McCullough, 

, 140 (1986); Goodell v. Williams, 

, 500–01 (6th Cir. 2011) (holding that the

presumption of vindictiveness does not apply when varying sentences are imposed by two different


                                                  4
judges); see also United States v. Rodriguez, 

, 358 (5th Cir. 2010) (listing the seven

other circuits that have similarly concluded that the presumption of vindictiveness does not apply

when varying sentences are imposed by different judges). “In such circumstances, a sentence

‘increase’ cannot truly be said to have taken place.” 

.

       Despite this general rule, if a different judge increases the first judge’s sentence on remand,

a presumption of vindictiveness may still be appropriate “where the circumstances of the particular

case give rise to a need to guard against vindictiveness.” 

. However, so

long as the second sentencer provides “an on-the-record, wholly logical, nonvindictive reason for

the [increased] sentence,” the presumption will not apply. 

.

       In this case, because there were two different judges at the first and second sentencing, a

presumption of vindictiveness cannot apply absent other circumstances evidencing a need to protect

against vindictive conduct. Not only do no such other circumstances exist on this record, but Judge

Rastatter thoroughly reviewed the facts of this case and provided a detailed objective explanation

for increasing Petitioner’s sentence. Therefore, the presumption of vindictiveness does not apply.

       For example, after having heard additional testimony from Petitioner’s ex-wife and

stepdaughter at the resentencing hearing describing Petitioner’s violent conduct, Judge Rastatter

noted that their testimony corroborated Petitioner’s extensive criminal record. Specifically, Judge

Rastatter pointed out that this would be the eighth time that Petitioner had been sentenced to a

violent offense, and his fourth prison sentence. Furthermore, Judge Rastatter examined the

Presentence Investigation Report, and stated that he was “struck by the fact that in [Petitioner’s]

version of the events . . . [he did not] admit doing anything wrong,” indicating a lack of genuine

remorse on his behalf. Judge Rastatter thus concluded within his discretion that a lengthier sentence


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was justified in order to protect the public and Petitioner’s family from his future criminal conduct,

and that consecutive sentences were not “disproportionate to the seriousness of [his] conduct or the

danger [he] pose[d].”

       Moreover, unlike the first time Petitioner was sentenced in this case, he did not have an

agreed sentence of eight years during his resentencing with Judge Rastatter, and pled guilty to an

additional count of kidnapping with a firearm specification. Because the kidnapping charge with a

firearm specification carried mandatory additional prison time, these facts are particularly evident

of the nonvidictive nature of Judge Rastatter’s sentence increase.

       This Court’s recent decision in Goodell, 

, supports a conclusion that the

presumption of vindictiveness does not apply. In Goodell, a different judge resentenced a defendant

on remand after his appeal, and increased his sentence from nine years to sixteen years. 

. Since there were two different sentencing judges, the presumption could not apply

unless there were other circumstances evidencing a need to protect against vindictiveness. 

However, because the second judge gave a “careful explanation of the reasons for the

longer sentence” based on a newly prepared presentence report, the facts of the case, and the

defendant’s background, there was no need to protect against vindictiveness. 

Thus, the

state court’s decision to not apply the presumption was “neither contrary to nor an unreasonable

application of clearly established federal law.” 

Like in Goodell, there were two different

sentencers in this case, no other circumstances evidence a need to protect against vindictiveness, and

Judge Rastatter carefully explained his nonvindictive and logical reasons for the sentence increase.

Therefore, as in Goodell, the presumption was appropriately disregarded here.




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       2. There is no evidence of actual vindictiveness.

       “[W]hile due process does not forbid enhanced sentences, it prohibits actual vindictiveness

against a defendant for having exercised his rights.” 

(citing Wasman v.

United States, 

, 569 (1984)). Therefore, even if the presumption of vindictiveness does

not apply, a defendant can still prevail if he can show that the second sentencing authority exercised

actual vindictiveness during resentencing. 

has an affirmative burden to prove

actual vindictiveness, and any evidence of it should be addressed on a case-by-case basis. 

; 

n.2.

       In this case, Petitioner argues that Judge Rastatter’s sentence increase was vindictive for

primarily two reasons. First, he argues that actual vindictiveness is apparent because the court

allowed Petitioner to remain in prison for seven weeks between his successful appeal and his

resentencing. Second, he points out that nothing new happened between his first and second

sentencing, and argues that a fifteen-year sentence increase in light of this fact evidences actual

vindictiveness. Both of these arguments fall short.

       First, although it is true that Petitioner remained in jail for seven weeks between his

successful appeal and his resentencing, he does not provide any specific facts or legal analysis

indicating why this supports a claim of actual vindictiveness. To the extent Petitioner contends that

Judge Rastatter’s purported failure to hold a prompt hearing on remand and to release him from

prison pending re-indictment and resentencing is evidence of vindictiveness, it does not appear that

Petitioner presented these facts to the state appellate courts and, therefore, we cannot conclude that

the state courts’ decisions were unreasonable. See Cullen v. Pinholster, 

, 1398–99

(2011). Regardless, Petitioner does not offer any support for his theory that the delay in resentencing


                                                  7
was evidence of Judge Rastatter’s intention to keep him in prison, as opposed to a non-vindictive

reason, such as a heavy caseload. Ultimately, Petitioner was given credit for jail time served, and

thus was not actually prejudiced in any way by the seven-week delay.

        Second, while events occurring subsequent to an original sentencing can justify an increased

sentence, it is not necessary that something new occur before a judge can impose an increased

sentence. In fact, “[r]estricting justifications for a sentence increase to only events that occurred

subsequent to the original sentencing proceedings could . . . lead to absurd results.” 

(internal quotation marks omitted). Moreover, “[n]othing in the Constitution

requires a judge to ignore objective information . . . justifying the increased sentence,” regardless of

whether that information was available before or after the original sentencing. 

(quoting

) (internal quotation marks and citation omitted).

        For example, in Goodell, no actual vindictiveness took place even though nothing new

occurred between the defendant’s original sentencing and resentencing. 

–02. Specifically, actual vindictiveness was absent because the resentencing judge “thoroughly

review[ed] the trial transcript and the newly prepared presentence report” and carefully explained

that the sentence increase was justified by the defendant’s “extensive criminal history and the

violence of the offense conduct.” 

He also concluded that an increased sentence “was

necessary to reflect the seriousness of the offenses, to protect the public, and to punish Goodell.” 

presents virtually the same situation as Goodell. Although it is true that nothing

new happened in between Petitioner’s original sentencing and his resentencing, Judge Rastatter took

care to give a detailed explanation for imposing an increased sentence on Petitioner. He listened to

additional testimony from Petitioner’s ex-wife and stepdaughter, and expressed concern for


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Petitioner’s lengthy criminal history, tendency towards violence, and lack of remorse. He explained

that he felt a longer sentence was necessary to protect Petitioner’s family and the public from

Petitioner’s conduct, particularly since this is his fourth prison sentence for violent crimes. Again,

given that there was an additional charge in the plea agreement and no agreed sentence between the

State and Petitioner, Judge Rastatter appropriately used his discretion to increase Petitioner’s

sentence, and there is no evidence that he exercised any actual vindictiveness towards him.

Accordingly, the district court did not commit error when it denied the petition for a writ of habeas

corpus.

                                          CONCLUSION

          Because the district court did not commit error when it denied Petitioner-Appellant Quill

Vanover’s petition for a writ of habeas corpus, we AFFIRM the judgment of the district court.




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