REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This is an action for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner seeks relief from his conviction in the Hamilton County Common Pleas Court on drug-related offenses and the consequent twelve-year sentence he is serving in Respondent's custody. With the assistance of counsel he pleads the following Grounds for Relief:

(Petition, Doc. No. 2, PageID 17.)

On order of Magistrate Judge Litkovitz, to whom this case was originally referred, Respondent filed an Answer and Return of Writ (Doc. No. 6).

Mr. Martin filed a previous habeas corpus petition in this Court in Case No. 1:07-cv-725 attacking the same conviction which is involved in this case. Respondent concedes, however, that the instant Petition is not a "second or successive" petition which requires permission for filing from the Sixth Circuit because Petitioner is attacking only the most recent judgment resulting from re-sentencing (Answer, Doc. No. 6, PageID 36-39). Based on recent Supreme Court precedent, this Court agrees. See Burton v. Stewart, 549 U.S. 147 (2007); Magwood v. Patterson, 561 U.S. ___, 130 S.Ct. 2788 (2010). Respondent is also concedes that the Petition is not time-barred.

Respondent does claim, however, that the First Ground for Relief is procedurally defaulted because it was not raised on direct appeal of the current sentence to the Hamilton County Court of Appeals (Answer, Doc. No. 6, PageID 42-44). In the face of Respondent's argument, Petitioner has abandoned the First Ground for Relief (Traverse, Doc. No. 11, PageID 562, n. 1 "Mr. Martin proceeds only on Ground Two.")

Ground Two

In his Second Ground for Relief, Petitioner asserts he received ineffective assistance of appellate counsel when his appellate counsel did not make a claim that the current sentence was vindictive. Respondent concedes that this claim was preserved for merit review in habeas when it was timely pleaded in an application for reopening under Ohio R. App. P. 26(B), the court of appeals decided the claim on the merits, and Petitioner timely appealed to the Ohio Supreme Court which declined jurisdiction (Answer, Doc. No. 6, PageID 44).

Respondent asserts Ground Two is not cognizable in habeas corpus, relying on 28 U.S.C. § 2254(i) which reads: "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." (Respondent's Reply to Traverse, Doc. No. 13, PageID 572-573, n.1.) However, the ineffective assistance of appellate counsel alleged in Ground Two is on direct appeal from the resentencing, not on any collateral attack, so Respondent's argument is mistaken.

In connection with her claim that ineffective assistance of appellate counsel is not cognizable, Respondent also asserts that:

(Respondent's Reply to Traverse, Doc. No. 13, PageID 572-573, n.2.) The Court disagrees. Apparently trial counsel did not make a contemporaneous objection to the changed sentence on the basis of vindictiveness. Ohio certainly has a contemporaneous objection rule which is an adequate and independent basis of state court decision. State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St.3d 144, 162 (1998); Wogenstahl v. Mitchell, 668 F.3d 307 (6th Cir. 2012)(citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007). But before a procedural default such as failing to make a contemporaneous objection can be held against a habeas petitioner, it must first have been enforced against him by the state courts. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), citing County Court of Ulster County v. Allen, 442 U.S. 140, 149 (1979). In this case the Hamilton County Court of Appeals did not enforce the contemporaneous objection rule against Martin. That is, it did not decide that his direct appeal counsel was not ineffective because the vindictive sentencing issue had been waived for lack of a contemporaneous objection by trial counsel, even though that issue was presented to them by the third proposed assignment of error. Therefore the lack of a contemporaneous objection does not bar consideration of the merits of Ground Two.

Standard of Review

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

The next issue which divides the parties is whether the Hamilton County Court of Appeals decision is entitled to deference. Petitioner argues that Respondent has "abandoned" the "theory under which the State court denied relief." (Traverse, Doc. No. 11, PageID 560.) Respondent reads this as if Petitioner were claiming that the State had abandoned the standard of review adopted in Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")(Reply to Traverse, Doc. No. 13, PageID 572). Having suggested this reading of the Traverse, Respondent argues that she cannot abandon the AEDPA standard of review. That conclusion is correct. The AEDPA standard of review is a command from Congress as to how habeas corpus cases are to be decided. It is not an affirmative defense in habeas, such as the statute of limitations or procedural default, which can be waived by failure to plead them.

Given that the AEDPA standard of review applies, what deference to the state court decision does it command, if any? Respondent relies on Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), to show that even a conclusory decision by the court of appeals (e.g., "application denied") would qualify as a decision on the merits for AEDPA purposes. Petitioner agrees that the court of appeals' decision was on the merits, argues Harrington only requires a habeas court to hypothesize reasons for a state court decision when that decision is conclusory and not when objectively unreasonable grounds have actually been relied on by the state court. (Petitioner's Sur-Reply, Doc. No. 17, PageID 591.)

The relevant language from Harrington is "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." 131 S. Ct. at 784, quoted by Petitioner at Sur-Reply, Doc. No. 17, PageID 591. That holding does not logically imply that when a state court's decision is accompanied by an explanation, the habeas petitioner must still negate all possible rationales under which the state court decision might be objectively reasonable. Nothing in the Harrington decision indicates to this Court that the Supreme Court intended the decision to be read more broadly than the holding. Thus this Court must decide whether the stated reasons of the court of appeals for not finding ineffective assistance of appellate counsel were objectively reasonable applications of clearly established Supreme Court precedent, not whether there were other possible reasons which would have satisfied that test.

Application of the AEDPA Standard

In denying Petitioner's claims of ineffective assistance of appellate counsel, First District Court of Appeals held as follows:

State v. Martin, Case No. C-080215 (Ohio App. 1st Dist. Sep. 23, 2009)(unpublished, copy at Answer, Doc. No. 6, Ex. 55, PageID 538-540).

It is clear first of all that the court of appeals applied the correct federal law, Strickland v. Washington, 466 U.S. 668 (1984), as adjusted for the appellate setting. The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate counsel the court must assess the strength of the claim that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance only if a reasonable probability exists that inclusion of the issue would have changed the result of the appeal. Id. citing Wilson. If a reasonable probability exists that the defendant would have prevailed had the claim been raised on appeal, the court still must consider whether the claim's merit was so compelling that the failure to raise it amounted to ineffective assistance of appellate counsel. Id. citing Wilson.

An application for re-opening under Ohio R. App. P. 26(B) is required to set forth, inter alia, "one or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits. . . ." That is what Petitioner's counsel did here. The court of appeals read the omitted assignments of error as (1) denial of due process by vindictive sentencing on remand; (2) the imposition of a vindictive sentence was plain error; and (3) trial counsel was ineffective for failing to object. The latter two proposed assignments were alternative paths to getting a decision on the merits of the first assignment. Having decided there was no merit to the due process argument, it followed that there was no "plain error" due process argument and it was not ineffective assistance of trial counsel to fail to make a contemporaneous objection. Petitioner does not seek review here of the court of appeals' disposition of these latter two proposed assignments of error, but instead focuses this Court's attention only on the first proposed assignment of error.

What we are reviewing is the court of appeals' decision on whether omitting a vindictive sentencing assignment of error constituted ineffective assistance of appellate counsel. Harrington reminds us that we are to be doubly deferential. Harrington, 131 S. Ct. at 788, citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). That is, we consider deferentially under Strickland the appellate attorney's decision about what assignments of error to raise and then deferentially under AEDPA the court of appeals' evaluation of counsel's decision of what to raise.

As to the first proposed assignment of error, the court of appeals decided it would have been without merit because the prior sentence was void under state law and a defendant has no reasonable expectation of finality in a void judgment.

The Supreme Court holding on which Petitioner relies is

North Carolina v. Pearce, 395 U.S. 711, 726 (1969).

Mr. Martin was convicted of trafficking in drugs and possession of the same drugs he had trafficked. He was sentenced to nine years on the trafficking charge and three years on the possession charge with the terms to be served consecutively. The trial jury hung on four counts of possession which related to other drug quantities. When those charges came on for re-trial, Martin pled guilty on two of the four counts in return for dismissal of the other two and received an agreed sentence of three years on each count to be served concurrently with each other and concurrently with the sentences on the first two counts of conviction (Return of Writ, Doc. No. 6, Ex. 17). On appeal he successfully claimed that (1) he had not been properly notified of post-release control sanctions at sentencing and (2) the trafficking and possession charges based on the same drugs were allied offenses of similar import and were required to be merged under Ohio Revised Code § 2941.25. It was on remand after this appeal that the trial court, having been compelled to merge the trafficking and possession counts, changed the three-year sentence on the separate possession counts to be served consecutively rather than concurrently.

Respondent does not dispute that this new sentence is "more severe" than the prior sentence for purposes of Pearce analysis, even though the aggregate sentence is still twelve years. The court of appeals did not question this proposition in its decision. This Court agrees. Because of the Ohio Supreme Court decision in State v. Cabrales, 118 Ohio St.3d 54 (2008), Petitioner was entitled to have Counts One and Two merged and be sentenced on only one of those counts. If that had been the only change to his sentence, it would have been reduced from twelve to nine years.

Instead, Respondent argues that the sentence is not more severe because the proceeding in which the prior sentence was imposed "legally-speaking . . . did not occur." (Reply to Traverse, Doc. No. 13, PageID 575.) She relies on language quoted by the court of appeals to the effect that a sentence imposed without compliance with Ohio Revised Code § 2929.19(B)(3)(c) is "void," and "`must be vacated," with "[t]he effect of * * * plac[ing] the parties in the same position they would have been if there had been no sentence.' See State v. Simpkins, 117 Ohio St.3d 420, 2008-0hio-1197, 884 N.E.2d 568,1122, citing State v. Bezak, 114 Ohio St.3d 94, 2007-0hio-3250, 868 N.E.2d 961, 1113. State v. Martin, supra, at 2 (PageID 539).

If this reading of Ohio law were allowed to control the outcome in cases such as this, it could completely eviscerate the Double Jeopardy protection recognized in Pearce. While the judgment entered without post-release control notification may have been void for some purposes under Ohio law, there is no doubt that unless Petitioner had sought to appeal that judgment, the Ohio Department of Correction would have continued to imprison him on that judgment for twelve years. Could the prosecutor at the end of that time have Petitioner brought to court and sentenced anew because he had been confined on a "void" judgment? Surely not.

At least some of the tangle in Ohio law over void criminal judgments created by Simpkins and Bezak, supra, was cured by the Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92 (2010), when it held:

Fischer, 128 Ohio St. 3d at 99. If the court of appeals had decided the 26(B) application in this case after Fischer, it presumably would not have come out as it did, treating the sentencing decision as completely de novo. However the 26(B) decision here was rendered September 23, 2009, and Fischer was not decided until December 2010.

The Warden attempts to avoid the impact of Pearce by relying on Wasman v. United States, 468 U.S. 559 (1984). There the trial judge imposed a more severe sentence after appeal and retrial, but explained the result as based on an intervening new conviction. The Supreme Court held the Pearce presumption applied, but was overcome by the explicit statement of reasons for the increase.

In Texas v. McCullough, 475 U.S. 134 (1986), the Supreme Court substantially tempered the Pearce presumption. Having recited the relevant portion of Pearce, it wrote:

McCullough, 475 U.S., at 138-139. Several features present in McCullough and the cases it discusses are absent here. Martin was resentenced by the same judge who had previously sentenced him. And it was that judge's errors in failing to announce post-release control and in not merging Counts One and Two which led to the reversal and remand for resentencing. The trial judge admittedly expressed his disagreement with the court of appeals' Cabrales decision which compelled the merger of Counts One and Two.1 Running the sentences on Counts 3 and 4 consecutive to Count Two was an obvious and perhaps the only way he could effectively avoid the impact of Cabrales on what he regarded as an appropriate sentence. He specifically asked the prosecutor seek a remand if the Ohio Supreme Court reversed Cabrales. This Court concludes that the circumstances of resentencing here require that the Pearce presumption apply.

The trial judge did not offer any explanation for changing the sentences on Counts Three and Four from concurrent to consecutive. Thus the Pearce presumption of vindictiveness stands unrebutted on the record. Even without the presumption, Martin would have been entitled to relief under the Double Jeopardy Clause if he could prove actual vindictiveness. Wasman, supra. But withe the Pearce presumption in place, he need not do so.

The Hamilton County Court of Appeals recognized the Pearce doctrine, but felt no obligation to apply it because they regarded the resentencing as a completely de novo proceeding, because the prior judgment was "void." But had they not been persuaded in that direction by the Ohio Supreme Court's Bezak decision — a decision which the Ohio Supreme Court characterized in Fischer as "ill considered" — they would have had every reason to apply the Pearce presumption. After all, the trial judge openly said he disagreed with their decision in Cabrales and his new sentence was a way of avoiding any impact from Cabrales on this particular sentence.

The court of appeals was of course not asked to apply the Pearce presumption on direct appeal. What it was eventually asked to do was to find that the failure to raise Pearce on direct appeal was ineffective assistance of appellate counsel. It declined to do so because it found the whole vindictiveness analysis was inapplicable. That decision was an objectively unreasonable application of Pearce and its progeny for the reasons given above.2 If the court of appeals had completed the Pearce analysis this Court went through and determined the Pearce presumption did not apply because it weighed the factors listed in McCullough differently from this Court, that would not have been an objectively unreasonable application of Pearce. Reasonable jurists could disagree on whether the Supreme Court would apply the presumption to a case like this. But that is not what the court of appeals decided. They declined to apply Pearce vindictiveness analysis at all because they regarded the resentencing as de novo based on the voidness of the prior judgment — and Pearce leaves no room for such an analysis.

Because its conclusion that appellate counsel was not ineffective was based on a completely erroneous premise — to wit, that Pearce did not apply — the conclusion is not entitled to deference under the AEDPA and this Court must consider the ineffective assistance of appellate counsel claim de novo. The question is whether the Pearce vindictiveness claim was such a sure winner that it was ineffective assistance to fail to make it. As the Sixth Circuit has recently put it, Petitioner must show that there is a reasonable probability raising the claim would have changed the result and also that the argument is so compelling that it was ineffective assistance to fail to make it. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011).

Petitioner argues there is a reasonable probability raising the vindictiveness claim would have changed the result. He notes that in State v. Johnson, 174 Ohio App.3d 130 (Ohio App. 1st Dist 2007), the Hamilton County Court of Appeals found that the Pearce analysis applied even though the total sentence did not increase, indicating this same court was open to a Pearce argument. It is true, as Respondent points out, that Petitioner made a major argument about Johnson and the sentencing package doctrine in his 26(B) Application (Return of Writ, Doc. No. 6, Ex. 53) and that the court of appeals did not accept it or reflect that question in its decision. But there is a difference, perhaps inchoate, between how a court looks at an argument when it is presented directly and how it may treat the same argument when presented by way of collateral attack on its original judgment.

Even though there is a reasonable probability the Pearce vindictiveness claim would have changed the result, the Court must also decide if that argument is so compelling that failure to make it constituted ineffective assistance of appellate counsel. The test is whether this argument is so much better than the arguments actually made that it was deficient performance to leave it out.

In the brief on appeal, Petitioner's counsel only made one assignment of error, to wit, that the judge on resentencing had not considered Petitioner's pre- and post-conviction good behavior sufficiently to permit it to impose a sentence consistent with the purposes of sentencing in Ohio (Brief, Ex. 38 to Return of Writ, Doc. No. 6, particularly PageID 348-351).3 As pointed out in the Appellee's Brief, this is not a particularly strong argument because Ohio appellate courts can only reverse or modify a sentence for abuse of discretion, this sentence was within the statutory range and not at the maximum end, and the trial judge had ordered and considered a new presentence report and a report from the confining institution (Brief, Ex. 39 to Return of Writ, Doc. No. 6, PageID 365-367).

As is usually the case with ineffective assistance of appellate counsel claims, this Court has no indication why appellate counsel omitted the Pearce vindictiveness claim. It might not have been successful, but the Hamilton County Court of Appeals openness to that claim, as demonstrated in Johnson, supra, indicates it would have had a good chance of success. Because it was ineffective assistance of appellate counsel to fail to raise the claim, the Petition should be granted and this Court should issue a conditional writ requiring Ohio to afford Petitioner a new appeal or release him within 90 days of the issuance of the writ.