Morris Jackson v. Keith Smith

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0045p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MORRIS JACKSON,
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Petitioner-Appellant,
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No. 11-4146
v.
,
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Respondent-Appellee. -
KEITH SMITH, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:09-cv-1467—Solomon Oliver, Jr., Chief District Judge.
Argued: June 19, 2013
Decided and Filed: March 7, 2014
Before: GILMAN, GRIFFIN, and WHITE, Circuit Judges.

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COUNSEL
ARGUED: Peter A. Patterson, UNIVERSITY OF CINCINNATI APPELLATE
CLINIC, Cincinnati, Ohio, for Appellant. Jerri L. Fosnaught, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Colter L.
Paulson, SQUIRE SANDERS LLP, Cincinnati, Ohio, for Appellant. Jerri L. Fosnaught,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
GRIFFIN, J., delivered the opinion of the court in which GILMAN, J., concurred,
and WHITE, J., concurred in part. WHITE, J. (pp. 13–14), delivered a separate opinion
concurring in part.
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OPINION
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GRIFFIN, Circuit Judge. Morris Jackson appeals the denial of his habeas corpus
petition filed under 28 U.S.C. § 2254, in which he claims that the consecutive sentences
imposed on his Ohio convictions for aggravated robbery and attempted kidnapping

1
No. 11-4146 Jackson v. Smith Page 2

violate the Double Jeopardy Clause’s ban on multiple punishments for the same offense.
We affirm.

I.

In November 2005, an Ohio jury convicted Jackson of aggravated robbery and
attempted kidnapping, among other crimes. See Ohio Rev. Code §§ 2911.01(A)(1)
(aggravated robbery), 2905.01(A)(2) (kidnapping), 2923.02(A) (attempt). The factual
basis for these convictions involved an attempted bank robbery. Driving a stolen vehicle
and wearing masks to cover their faces, Jackson and a man named Daniel Ivery arrived
at the National City Bank in Canton, Ohio. The two men approached the bank but were
confronted by an off-duty Canton police officer working security for the bank. The
officer drew his weapon and yelled “police!” several times. Following an exchange of
gunfire between Ivery and the officer, Jackson ran across the street towards a restaurant.
When he reached the parking lot, he approached Sara Bineger, who was seated in the
driver’s seat of her vehicle, waiting to pull out of the lot. Jackson opened the car door,
pointed a gun at Bineger, and told her to “scoot over.” When she hesitated, Jackson tried
to sit on her, at which point Bineger escaped through the passenger door. Jackson then
drove away in Bineger’s car.

At sentencing, Jackson argued that the offenses of aggravated robbery and
attempted kidnapping were allied offenses of similar import under Ohio Revised Code
§ 2941.25 and asked the court to merge the kidnapping conviction into the robbery
conviction. The court denied the request, finding the offenses to be of dissimilar import.
Applying the Ohio Supreme Court’s then-applicable framework laid out in State v.
Rance, 710 N.E.2d 699 (Ohio 1999), overruled by State v. Johnson, 942 N.E.2d 1061
(Ohio 2010), the trial court compared the statutory elements of the offenses in the
abstract and found that “one could [commit] the offense of kidnapping without
committing the offense of aggravated robbery and vice versa.” The court imposed
consecutive sentences of ten years on the aggravated robbery offense and five years on
the attempted kidnapping offense. The Ohio Court of Appeals affirmed the trial court’s
rejection of Jackson’s merger argument, relying on the unpublished decision in State v.
No. 11-4146 Jackson v. Smith Page 3

McCoy, No. 05-CA-29, 2006 WL 39100 (Ohio Ct. App. Jan. 5, 2006), which held that
aggravated robbery and kidnapping were offenses of dissimilar import. The Ohio
Supreme Court denied leave to appeal.

Jackson petitioned for habeas relief in the district court. As relevant here,
Jackson claimed that punishing him for aggravated robbery and attempted kidnapping
violated his rights under the federal Double Jeopardy Clause. The district court denied
relief on this claim but granted a certificate of appealability. This timely appeal
followed.

II.

We first consider whether the heightened standards imposed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) govern Jackson’s double jeopardy
claim. See 28 U.S.C. § 2254(d). These standards apply to “any claim that was
adjudicated on the merits in State Court proceedings.” Id. By comparison, claims not
“adjudicated on the merits” by the state court are given plenary review by a federal
habeas court, even where AEDPA otherwise applies. See, e.g., Jackson v. Houk,
687 F.3d 723, 731 (6th Cir. 2012); see also, e.g., Wiggins v. Smith, 539 U.S. 510, 534
(2003). In past cases, determining whether a claim was “adjudicated on the merits”
sometimes proved difficult, whether because the state court issued a summary denial,
bereft of analysis, see Harrington v. Richter, 131 S. Ct. 770, 784 (2011), because the
state court explicitly addressed some of the federal claims presented but not others, see
Johnson v. Williams, 133 S. Ct. 1088, 1093 (2013), or because the state court confined
its analysis to state-law authorities, see Danner v. Motley, 448 F.3d 372, 376 (6th Cir.
2006).

In cases where the state court relied solely upon state authority, we previously
held that the federal claim was not adjudicated on the merits and considered the claim
de novo. See id. (concluding that “[a]ny consideration of the Sixth Amendment
contained within the state case law upon which the state courts relied is too attenuated
to consider the Sixth Amendment claim to have been ‘adjudicated on the merits’”). But
the Supreme Court recently overruled our approach and held that “[w]hen a federal claim
No. 11-4146 Jackson v. Smith Page 4

has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at
784–85. And this rule applies, whether the state court denied relief summarily, see id.,
expressly addressed some of the claims but not the one advanced on federal habeas
review, see Johnson, 133 S. Ct. at 1093, or confined its analysis to state-law authorities,
see Brown v. Bobby, 656 F.3d 325, 329 (6th Cir. 2011) (holding that the state court’s
exclusive focus on Ohio’s speedy-trial provisions in rejecting a federal speedy-trial
claim failed to rebut the presumption of a merits adjudication).

Citing our earlier decision in Danner, Jackson contends that his double jeopardy
claim, though fairly presented, was not adjudicated on the merits and therefore must be
reviewed de novo. We disagree. Jackson is correct that the Ohio Court of Appeals’
analysis of his double jeopardy claim was limited to an application of Ohio’s allied
offenses statute, Ohio Rev. Code § 2941.25, as interpreted by the Ohio Supreme Court
in State v. Rance, 710 N.E.2d 699 (Ohio 1999). But that analysis is entirely dispositive
of the federal double jeopardy claim, as the Ohio Supreme Court recognized in Rance.
Id. at 705 (explaining that the allied offenses analysis “answers the constitutional and
state statutory inquiries”). Therefore, the state court necessarily resolved the federal
claim, despite not expressly saying so. See Johnson, 133 S. Ct. at 1098 (“Regardless of
whether a California court would consider Williams’ [state] and Sixth Amendment
claims to be perfectly coextensive, the fact that these claims are so similar makes it
unlikely that the California Court of Appeal decided one while overlooking the other.”);
cf. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that an explained decision
receives AEDPA deference even if the state court fails to cite—or is not even aware
of—relevant Supreme Court precedent). Because the Ohio Court of Appeals adjudicated
Jackson’s federal claim “on the merits,” we must review its decision under AEDPA’s
heightened standards.

Pursuant to these standards, eligibility for federal relief on a claim adjudicated
on the merits requires the petitioner to demonstrate that the state court’s decision
No. 11-4146 Jackson v. Smith Page 5

“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.” 28 U.S.C. § 2254(d)(1).1

III.

Where, as here, § 2254(d)(1) governs a federal court’s review of a state
conviction, the applicable substantive law is limited to federal law “clearly established”
by the holdings of Supreme Court decisions. Williams v. Taylor, 529 U.S. 362, 412
(2000). Identifying the requisite substantive law, therefore, is the “starting point for
cases subject to § 2254(d)(1).” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (per
curiam).

The Fifth Amendment provides in relevant part that no person shall “be twice put
in jeopardy” for “the same offence.” U.S. Const. amend. V. This guarantee,
fundamental as it is to “the American scheme of justice,” applies against the States by
virtue of the Fourteenth Amendment’s Due Process Clause. See Benton v. Maryland,
395 U.S. 784, 795 (1968). The Double Jeopardy Clause protects against “multiple
punishments for the same offense,” among other things. North Carolina v. Pearce,
395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490
U.S. 794 (1989). As the Court long ago recognized, “[i]f there is anything settled in the
jurisprudence of England and America, it is that no man can be twice lawfully punished
for the same offence.” Ex parte Lange, 85 U.S. 163, 168 (1874).

A.

The warden begins his defense of the district court’s judgment with an argument
that is inconsistent with well-settled precedent. According to the warden, “the test for
determining whether two statutes constitute the ‘same offense’ for double jeopardy
purposes was first developed in Blockburger v. United States, 284 U.S. 299 (1932).” He

1
Eligibility also exists where the adjudication “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)(2). Subparagraph (d)(2) is not applicable here.
No. 11-4146 Jackson v. Smith Page 6

then contends that the Ohio Court of Appeals “applied Blockburger to the particular
statutory provisions at issue as required by United States Supreme Court precedent” and
reached a decision that was neither contrary to, nor an unreasonable application of, the
Blockburger test.

This argument is entirely inapposite. To begin, the Ohio courts did not apply
Blockburger; they applied Ohio’s allied offenses statute. Nor does the federal
constitution require the state courts to apply Blockburger to resolve the double jeopardy
claim. What determines whether the constitutional prohibition against multiple
punishments has been violated is the state legislature’s intent concerning punishment.
Specifically, “[w]ith respect to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459
U.S. 359, 366 (1983). In the federal system, it is presumed that “Congress ordinarily
does not intend to punish the same offense under two different statutes.” Whalen v.
United States, 445 U.S. 684, 691 (1980). “Accordingly, where two statutory provisions
proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments
in the absence of a clear indication of contrary legislative intent.” Id. at 692.

In Blockburger, the Court created a test for determining whether two federal
statutory provisions really proscribe the “same offense” and thus whether Congress
presumptively intended just one punishment: “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” 284 U.S. at 304. But this test, the Court has
clarified, is merely a “rule of statutory construction,” designed to assist courts in
discerning Congress’s intent; the Fifth (and Fourteenth) Amendments do not require the
States to use it, and they are free to create their own tests, whether by statute or through
judicial decisionmaking. Legislative intent is the touchstone; it, and not the Blockburger
test, determines whether two offenses are the same and, if so, whether multiple
punishments are nevertheless intended. Albernaz v. United States, 450 U.S. 333, 344
No. 11-4146 Jackson v. Smith Page 7

(1981) (“The question of what punishments are constitutionally permissible is not
different from the question of what punishments the Legislative Branch intended to be
imposed.”); see also Rance, 710 N.E.2d at 705 (“In Ohio it is unnecessary to resort to
the Blockburger test[.]”).

The Court’s decision in Hunter, 459 U.S. 359, illustrates the point. There, the
Missouri Supreme Court, using the Blockburger test, concluded that Missouri statutes
prohibiting robbery in the first degree and armed criminal action stemming from the
robbery criminalized only one course of conduct. Based solely on that determination,
the court found a “multiple punishments” violation, despite acknowledging “that the
Missouri legislature had expressed its clear intent that a defendant should be subject to
conviction and sentence under the armed criminal action statute in addition to any
conviction and sentence for the underlying felony.” Id. at 363–64. The United States
Supreme Court reversed, explaining that the legislature’s intent, not the results of the
Blockburger test, controlled: “Where, as here, a legislature specifically authorizes
cumulative punishment under two statutes, regardless of whether those two statutes
proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction
is at an end and the prosecutor may seek and the trial court or jury may impose
cumulative punishment under such statutes in a single trial.” Id. at 368–69; see also
Ohio v. Johnson, 467 U.S. 493, 499 n.8 (1984) (“As should be evident from our decision
in Missouri v. Hunter, . . . the Blockburger test does not necessarily control the inquiry
into the intent of a state legislature.”). The warden makes the same mistake here by
elevating Blockburger to the status of a constitutional requirement.

B.

The Ohio legislature has expressed its intention in regard to multiple
punishments through a rule of general applicability. Ohio Revised Code § 2941.25
provides:

(A) Where 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.
No. 11-4146 Jackson v. Smith Page 8

(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts for
all such offenses, and the defendant may be convicted of all of them.

Ohio courts apply this statute, not the Blockburger test, to ascertain the Ohio
legislature’s intent. Rance, 710 N.E.2d at 705; see State v. Bickerstaff, 461 N.E.2d 892,
896 n.1 (Ohio 1984) (explaining that the allied offenses statute “is a clear indication of
the General Assembly’s intent to permit cumulative sentencing for the commission of
certain offenses”). The Ohio Supreme Court has interpreted the statute in various ways
over the years. Three decisions are particularly relevant.

The first is State v. Rance, 710 N.E.2d 699 (Ohio 1999), where the Ohio Supreme
Court held that when ascertaining whether two offenses are allied, a court must consider
the statutory elements in the abstract, as opposed to considering the specific facts of the
crime. Id. at 705. The court stated further that “[c]ourts should assess, by aligning the
elements of each crime in the abstract, whether the statutory elements of the crimes
correspond to such a degree that the commission of one crime will [automatically] result
in the commission of the other.” Id. (internal quotation marks omitted). Rance governed
at the time Jackson’s case came before the Ohio Court of Appeals. The court applied the
case in rejecting Jackson’s claim.

The second relevant decision is State v. Winn, 905 N.E.2d 154 (Ohio 2009),
decided after Jackson’s convictions became final. There, using the Rance framework,
the Ohio Supreme Court concluded that aggravated robbery and kidnapping—essentially
the offenses at issue here, though Jackson was convicted of attempted kidnapping—are
allied offenses of similar import. Comparing the elements of the offenses in the abstract,
the court concluded that “the two offenses are so similar that the commission of one
offense will necessarily result in commission of the other.” Id. at 158. This result, the
court stated, was “in keeping with 30 years of precedent.” Id. at 158.

The third is State v. Johnson, 942 N.E.2d 1061 (Ohio 2010), also decided after
Jackson’s convictions became final. In that case, the Ohio Supreme Court overruled
No. 11-4146 Jackson v. Smith Page 9

Rance, concluding that its approach was in tension with the language of the allied
offense statute, was difficult to apply, offered almost no guidance to the lower courts,
and sometimes yielded absurd results. The court created a new standard for ascertaining
whether two crimes are allied offenses. Under this standard, “[w]hen determining
whether two offenses are allied offenses of similar import subject to merger . . . , the
conduct of the accused must be considered.” Id. at 1069. This new approach, the court
concluded, flowed from the plain language in the allied offenses statute, which focuses
on the defendant’s conduct. Id. at 1070. Accordingly, “[i]f the offenses correspond to
such a degree that the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of similar import.” Id. If that
is the case, “then the court must determine whether the offenses were committed by the
same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. If that too
is the case, “then the offenses are allied offenses of similar import and will be merged.”
Id.

C.

Jackson makes two arguments. First, he contends that using the new test for
allied offenses set forth in Johnson, it is clear that the Ohio legislature never authorized
multiple punishments for his convictions of aggravated robbery and attempted
kidnapping. Next, he argues that even under the old Rance test, the Ohio Supreme
Court’s decision in Winn demonstrates that the Ohio legislature did not authorize
cumulative punishments for the offenses. Under either theory, Jackson maintains,
punishing him for both offenses “violate[s] clearly established Federal law.”

We can dispense with extended analysis of Jackson’s argument based on
Johnson. After Jackson filed his opening brief, another panel of this court held, as a
matter of Ohio law, that Johnson applies only in criminal cases that are not yet final,
which is to say prospectively. See Volpe v. Trim, 708 F.3d 688, 701 (6th Cir. 2013)
(“Johnson does not apply . . . to cases where the defendant has already exhausted her
appellate remedies.”). Johnson was decided after Jackson’s convictions became final.
Accordingly, Volpe forecloses Jackson’s argument based upon Johnson. 6th Cir. R.
No. 11-4146 Jackson v. Smith Page 10

32.1(b); see Walters v. Warden, Ross Corr. Inst., 521 F. App’x 375, 378 (6th Cir. 2013)
(“Volpe is binding precedent on this panel.”).

In his reply brief, Jackson acknowledges Volpe but emphasizes his Winn-based
argument. He contends that, unlike Johnson, Winn “only clarified and applied existing
state law” when it held that kidnapping and aggravated robbery are allied offenses.
Also, Winn stated that its holding was “consistent with 30 years of precedent,” which
means that the court’s determination in Jackson’s case concerning the legislature’s
intent was wrong at the time his convictions became final. Therefore, Jackson
concludes, the state court “prescrib[ed] greater punishment than the legislature
intended,” in violation of the Double Jeopardy Clause. See Hunter, 459 U.S. at 366.

However, simply because the state court’s assessment of its legislature’s intent
was wrong does not mean that Jackson is eligible for federal habeas relief. The Supreme
Court has made clear that the only question that matters under § 2254(d)(1) is “whether
[the] state court decision is contrary to, or involved an unreasonable application of,
clearly established Federal law.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003); see
Richter, 131 S. Ct. at 786. The Ohio Court of Appeals’ decision is neither. We might
have a different result if the state court “had said that legislative intent is irrelevant to
the double jeopardy analysis, or that although the [Ohio] legislature clearly had not
intended for the two crimes to be punished cumulatively, the consecutive sentences
imposed on [Jackson] were nonetheless acceptable despite the Double Jeopardy Clause.”
McCloud v. Deppisch, 409 F.3d 869, 876 (7th Cir. 2005). For such statements would be
plainly “contrary to” clearly established federal law that says the legislature’s intent
controls. See Bell v. Cone, 535 U.S. 685, 694 (2002) (“A federal habeas court may issue
the writ under the ‘contrary to’ clause if the state court applies a rule different from the
governing law set forth in our cases.” (citing Williams, 529 U.S. at 405–06)); see also
Brown v. Payton, 544 U.S. 133, 141 (2005) (allowing habeas relief if the state court
“applies a rule that contradicts the governing law set forth in our cases” (emphasis
added)). But that is not our case. At worst, the state court incorrectly applied Ohio’s
No. 11-4146 Jackson v. Smith Page 11

allied offenses statute to determine the legislature’s intent.2 Habeas relief, especially
when circumscribed by § 2254(d)(1), is not available for such alleged errors.

Furthermore, our “review under § 2254(d)(1) focuses on what a state court knew
and did,” Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011), and not simply on whether
(upon plenary review, save with respect to factual determinations) the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United States,”
28 U.S.C. § 2254(a); see Williams v. Taylor, 529 U.S. 362, 400 (2000) (O’Connor, J.,
concurring) (describing the “independent” nature of federal habeas review before
AEDPA); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (stating that federal habeas
petitioners receive “plenary review of their constitutional claims”). With the focus
correctly on what the Ohio Court of Appeals actually did in this matter—it discerned the
Ohio legislature’s intent by applying Ohio’s allied offenses statute—there can be no
doubt that its decision falls outside § 2254(d)(1)’s narrow exceptions to the bar on
federal habeas relief, thus rendering Jackson ineligible for relief.

In Volpe, it is true, we stated in dicta that nothing would prevent the “application
of Johnson in habeas review if the Ohio Supreme Court declares that its new test for
allied offenses applies in the post-conviction context.” 708 F.3d at 704 n.3. If that is so,
then why not apply Winn on habeas review, provided the decision—as we so far have
assumed—sets forth the correct assessment of the legislature’s intent at the time of
Jackson’s direct review? The reason lies in § 2254(d)(1), as we have explained. In
Volpe, although we acknowledged at the outset that § 2254(d)(1) applied, we conducted
our analysis de novo, as if it did not apply. Finding no constitutional violation, we had
no need to answer the question under § 2254(d)(1) and therefore never addressed it.
This is a common way of addressing habeas claims when AEDPA applies. See, e.g.,
Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010); Knowles v. Mirzayance, 556 U.S.
111, 128 (2009); Weeks v. Angelone, 528 U.S. 225, 234 (2000). We presumably could
have decided Volpe by first considering the § 2254(d)(1) question, but instead decided

2
Nor do we see any way in which a state court could “unreasonably apply” these clearly
established rules and thereby satisfy § 2254(d)(1)’s other exception to the bar on habeas relief.
No. 11-4146 Jackson v. Smith Page 12

to consider the claim de novo. We take a different route today.3 See Lockyer, 538 U.S.
at 71 (“AEDPA does not require a federal habeas court to adopt any one methodology
in deciding the only question that matters under § 2254(d)(1).”). Therefore, our dicta
in Volpe does not help Jackson.

Jackson also asks that we certify to the Ohio Supreme Court the question whether
Winn applies to a conviction that is already final. But that misses the point. We have
so far assumed that Ohio law is as Jackson says it is—that Winn stated the Ohio
legislature’s intent at the time his conviction became final. Whether Jackson’s position
and our assumption is correct (which is precisely what certification would tell us),
habeas relief in the face of § 2254(d)(1) would still be unwarranted, given the lack of a
state-court decision that was “contrary to, or involved an unreasonable application of,
clearly established Federal law.”

IV.

For these reasons, we affirm the judgment of the district court.

3
Fiore v. White, 531 U.S. 225 (2001) (per curiam), does not require a different result. Although
§ 2254(d)(1) potentially governed the petitioner’s due-process claim, the Third Circuit denied relief using
plenary review, and the Supreme Court heard the case in the same posture.
No. 11-4146 Jackson v. Smith Page 13

___________________________

CONCURRENCE IN PART
___________________________

HELENE N. WHITE, Circuit Judge. Concurring in part. I agree that the
question whether double punishment for aggravated robbery and attempted kidnapping
violates the federal double jeopardy protection is answered by reference to the Ohio
legislature’s intent, and that the Ohio legislature’s intent is to be determined by the Ohio
Supreme Court. I also agree that AEDPA circumscribes our analysis. However, I do not
agree that habeas relief in this context depends on the state court’s direct statement that
although the state legislature did not intend double punishment, it is nevertheless
permissible, as the majority seems to hold in paraphrasing the language of McCloud v
Deppisch, 409 F.3d 869, 876 (7th Cir. 2005). If it were clear that State v Winn,
905 N.E.2d 154 (Ohio 2009), expressed the Ohio Supreme Court’s interpretation of the
Ohio legislature’s intent regarding whether aggravated robbery and attempted
kidnapping are allied offenses of similar import as of the time Jackson’s direct appeal
was decided, and if it were clear that the Ohio courts determined that Jackson had
committed both offenses with the same animus, I would conclude that the Ohio court
decision is contrary to clearly established federal law in that it would be clear that the
legislature did not intend double punishment be permitted by the Ohio court.

It is not clear that Winn simply stated the law as it always had been. In Volpe v.
Trim, 708 F.3d 688 (6th Cir. 2013), we rejected the argument that Ohio Rev. Code
§ 2941.25 has always had the same meaning and therefore if State v. Rance, 710 N.E.2d
699 (Ohio 1999), incorrectly interpreted the statute, as the Ohio Supreme Court held in
State v. Johnson, 942 N.E.2d 1061, 1062 (Ohio 2010), then Volpe’s constitutional right
to be free from double jeopardy was violated when she was doubly punished where the
legislature did not so intend. We held instead that the Ohio legislature left it to the Ohio
Supreme Court to give meaning to the term “allied offenses of similar import,” and the
meaning ascribed to that phrase by the court has changed over time. Volpe, 708 F.3d at
702. Here, although the Winn court stated that its decision “was in keeping with 30
No. 11-4146 Jackson v. Smith Page 14

years of precedent,” Winn, 905 N.E.2d at 158, the cases cited by the court were primarily
pre-Rance cases, and none analyzed the elements of kidnapping and aggravated robbery
to determine whether they were allied offenses of similar import. When Winn is
compared to Rance and the cases leading up to Winn, it cannot be said that Winn clearly
stated the Ohio Supreme Court’s view of the applicability of § 2941.25 to aggravated
robbery and kidnapping at the time Jackson’s direct appeal was decided.

Additionally, § 2941.25 also asks the question whether the defendant committed
both offenses with the same animus. In Winn, the court expressly stated that it was not
contested that Winn did not have a separate animus for the two offenses. Winn,
905 N.E.2d at 157. Here, although the Ohio Court of Appeals followed State v McCoy,
No. 05-CA-29, 2006 WL 39100 (Ohio Ct. App. 5th Dist. Jan. 5, 2006), a case that held
that aggravated robbery and kidnapping are not allied offenses of similar import, the
sentencing court addressed the specifics of Jackson’s conduct and determined that if
Jackson had been successful in the kidnapping, the victim would have remained in the
car as Jackson fled from the area. The animus involved in carjacking the victim’s car
can certainly be seen as separate from the animus involved in attempting to take the
victim away with the car.

Because the decision on Jackson’s appeal was not contrary to, and did not
involve an unreasonable application of, federal double jeopardy law, I concur in the
affirmance of the denial of Jackson’s habeas petition.