RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0117p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
RYAN HOOKS,
-
Petitioner-Appellant,
-
-
No. 08-4549
v.
,
>
-
Respondent-Appellee. -
MICHAEL SHEETS, Warden.
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 07-00520—Sandra S. Beckwith, District Judge.
Submitted: March 10, 2010
Decided and Filed: April 27, 2010
Before: MARTIN, SILER, and MOORE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jill E. Stone, LAW OFFICE, Blacklick, Ohio, Spencer James Cahoon, OHIO
PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Diane Mallory, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. On his convictions for possession with intent to distribute
controlled substances, Ryan Hooks was sentenced to greater than minimum consecutive
terms under Ohio law because he had served a prior prison term and the court concluded that
the minimum sentence was insufficient. At the time, Ohio’s sentencing law permitted the
imposition of consecutive sentences only if the court made other factual findings. In State
v. Foster, 845 N.E.2d 470 (Ohio 2006), the Ohio Supreme Court held that the sentencing
provisions allowing for an increased sentence based on judicial fact finding were
1
No. 08-4549 Hooks v. Sheets Page 2
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). It corrected the problem
by construing Ohio’s sentencing provisions as advisory and providing trial courts with
discretion to sentence anywhere between the statutory minimum and maximum. The
appellate court remanded Hooks’s case for re-sentencing in light of Foster. Hooks was re-
sentenced to the same time and sought habeas corpus relief because he claimed being re-
sentenced post-Foster violated his rights under the Due Process and Ex Post Facto Clauses
of the United States Constitution. For the following reasons, we AFFIRM.
BACKGROUND
In 2003, Hooks was charged with possessing a controlled substance in a two-count
information, No. CR03-08-1232, with an additional count of possessing a controlled
substance in a separate one-count information, No. CR03-08-1278, and in another one-count
information, with possessing a controlled substance, No. CR03-10-1504. He pleaded guilty
to all four charges.
He was sentenced in 2004, pursuant to the version of the Ohio Sentencing Code in
effect at that time. Specifically, the Code required the trial judge to make specific factual
findings to sentence offenders above the statutory minimum or to sentence an offender to
consecutive rather than concurrent sentences. See ORC § 2929.14(B) (“[T]he court shall
impose the shortest prison term authorized for the offense . . . unless [t]he offender was
serving a prison term at the time of the offense, or the offender previously had served a
prison term[; or] [t]he court finds on the record that the shortest prison term will demean the
seriousness of the offender’s conduct or will not adequately protect the public from future
crime by the offender or others.”); ORC § 2929.14(E)(4) (“[T]he court may require the
offender to serve the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public, and if the court also finds any of the
following [listed facts].”).
The trial court found that Hooks had previously served a prison term and that
“[c]onsecutive sentences are necessary to protect the public from future crime or to punish
the defendant and not disproportionate to the seriousness of the defendant’s conduct and the
No. 08-4549 Hooks v. Sheets Page 3
danger the defendant poses to the public.” It also found that “[t]he defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the public
from future crime by the defendant.”
In No. CR03-08-1232, the court sentenced Hooks to six years’ imprisonment on
count one and four years’ imprisonment on count two, to run concurrently with each other.
It ordered that those sentences run consecutively to a previously-imposed sentence from No.
CR03-07-0944. It sentenced him to three years’ imprisonment in No. CR03-08-1278, with
this sentence to run consecutively to the sentences imposed in both No. CR03-07-0944 and
No. CR03-08-1232. Finally, it sentenced him to eleven months’ imprisonment in No. CR03-
10-1504, with this sentence to run consecutively to the sentences in Nos. CR03-07-0944,
CR03-08-1232, and CR03-08-1278.
1
On appeal, Hooks argued that the Ohio law under which he was sentenced was
unconstitutional in light of Blakely v. Washington, 542 U.S. 296 (2004). While his
appeal was pending, the Ohio Supreme Court issued its decision in State v. Foster, 845
N.E.2d 470 (Ohio 2006), in which it held that some provisions of Ohio’s sentencing code
were unconstitutional in light of Blakely, because they required the judge to engage in
fact-finding before imposing a sentence greater than the maximum term authorized by
a jury verdict or the defendant’s admissions. Id. at 477-79, 494. As a remedy, the
Foster court severed the unconstitutional provisions of Ohio’s sentencing code, making
those provisions advisory and allowing trial courts full discretion to sentence within the
statutory range or impose consecutive sentences without engaging in any judicial fact-
finding. Id. at 494-99. In light of Foster, the Ohio Court of Appeals sustained Hooks’s
Blakely claims, reversed the trial court’s judgment, and remanded his case for re-
sentencing consistent with Foster.
Hooks filed a motion for reconsideration, arguing that although the case should
be remanded “in light of Blakely, . . . [r]emanding in light of Foster violates the Ex Post
Facto and Due Process Clauses of the United States Constitution and directly
1
Hooks’s cases were consolidated on direct appeal and were docketed as No. Butler CR2004-02-
047.
No. 08-4549 Hooks v. Sheets Page 4
contravenes Foster.” The Ohio Court of Appeals denied the motion for reconsideration,
and Hooks sought leave to appeal to the Ohio Supreme Court. The Ohio Supreme Court
ultimately denied this request and summarily dismissed the appeal “as not involving any
substantial constitutional issue.” Following a hearing before the trial court, Hooks was
re-sentenced to the same terms of imprisonment as previously imposed.
Hooks then filed a habeas corpus petition in the United States District Court for
the Southern District of Ohio alleging that he “was sentenced by the State of Ohio to
non-minimum, consecutive sentences in violation of the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution,” and that the Ohio Supreme Court’s
decision in Foster to sever the unconstitutional “portions of Ohio’s statutes that
mandated minimum, concurrent sentences violated the Due Process and Ex Post Facto
Clauses of the United States Constitution.” The district court denied the petition, and
Hooks appeals.
DISCUSSION
I. Exhaustion
Hooks is required by 28 U.S.C. § 2254 to exhaust his state court remedies before
we can hear his petition. That statute prohibits us from granting an application for a writ
of habeas corpus on behalf of a person in custody pursuant to a state court judgment
“unless it appears that the applicant has exhausted the remedies available in the courts
of the State.” 28 U.S.C. § 2254(b)(1). It provides an exception from that requirement
when “circumstances exist that render such process ineffective to protect the rights of
the applicant.” Id. at §2254(b)(1)(B). The district court concluded that Hooks had
exhausted his claims, that even if he had not properly exhausted his claims, any further
pursuit of remedies in state court would be futile, and, finally, that it could deny his
petition regardless of a failure to exhaust.
“To be properly exhausted, each claim must have been ‘fairly presented’ to the
state courts.” Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009) (quoting Frazier v.
Huffman, 343 F.3d 780, 797 (6th Cir. 2003)). “Fair presentation requires that the state
No. 08-4549 Hooks v. Sheets Page 5
courts be given the opportunity to see both the factual and legal basis for each claim.”
Id. at 414-15 (citing Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990), and Newton
v. Million, 349 F.3d 873, 877 (6th Cir. 2003)). Hooks fully presented his legal and
factual arguments to the appellate court in his motion to reconsider. He also sought
leave to appeal the appellate court’s denial of his motion to reconsider to the Ohio
Supreme Court and a writ of certiorari from the United States Supreme Court. The brief
he submitted to the appellate court was virtually identical to his habeas petition.
Furthermore, the warden fully responded to Hooks’s arguments before that court.
Moreover, because Hooks was challenging his re-sentencing pursuant to Foster, not his
ultimate sentence, the imposition of his sentence was irrelevant to the arguments he
presented on appeal. Therefore, Hooks properly exhausted his claims.
II. Due Process and Ex Post Facto Concerns
On appeal from a habeas proceeding, we review the district court’s legal
conclusions de novo and its findings of fact for clear error. King v. Bobby, 433 F.3d 483,
489 (6th Cir. 2006). We need not reach the question of whether re-sentencing under
Foster, in general, violates the Ex Post Facto or Due Process Clauses of the United
States Constitution because it does not violate either of these constitutional provisions
as applied to Hooks.
The Ex Post Facto Clause prohibits a state from passing a law that
(1) criminalizes an action done before the law was passed, which was innocent when
done, (2) “‘aggravates a crime, or makes it greater than it was, when committed,’”
(3) “‘changes the punishment’” to inflict greater punishment than the law provided when
the crime was committed, or (4) “‘alters the legal rules of evidence’” so that less or
different testimony is required than at the time the offense was committed. Rogers v.
Tennessee, 532 U.S. 451, 456 (2001) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)).
The Ex Post Facto Clause, however, provides by its terms that it is applicable only to
acts of the Legislature, and “‘does not of its own force apply to the Judicial Branch of
government.’” Id. (quoting Marks v. United States, 430 U.S. 188, 191 (1977)).
Nevertheless, the “limitations on ex post facto judicial decisionmaking are inherent in
No. 08-4549 Hooks v. Sheets Page 6
the notion of due process.” Id. Consequently, the principles of the Ex Post Facto Clause
apply to the courts through the Due Process Clause. See id. at 457. Because these
principles are viewed through the lens of due process in the judicial context, the
constitutionality of judicial action turns on the traditional due process principles of
“notice, foreseeability, and, in particular, the right to fair warning,” rather than the
specific prescriptions of the Ex Post Facto Clause. Id. at 458-59.
A state’s statutory scheme does not violate the Sixth Amendment simply because
it constrains the ability of courts to impose consecutive sentences to situations in which
the court has found specific facts. Oregon v. Ice, 129 S.Ct. 711, 714-15 (2009). Instead,
a state may allow courts unfettered discretion to impose consecutive sentences or it may
limit that authority without violating the Sixth Amendment. Id. At the time Hooks
committed his crimes, Ohio permitted the court to impose consecutive rather than
concurrent sentences if it found particular facts, see ORC § 2929.14(E)(4), and explained
its “reasons for imposing the consecutive sentences,” ORC §2929.19(B)(2)(c). The Ohio
Supreme Court nevertheless determined that these statutory provisions violated Blakely
because they allowed the imposition of longer sentences—consecutive sentences—based
upon judicial factfinding. Foster, 845 N.E.2d at 491.
Regardless of the court’s determination in Foster, the maximum sentence to
which Hooks was constitutionally subject contemplated consecutive sentences. Hooks
would have the court calculate his maximum sentence as being imposed concurrently
based solely on the facts found by a jury at the time of sentencing, because he argues that
this calculation is mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000). However,
Apprendi does not limit the calculation of Hooks’s potential sentence to concurrent
sentences when the judicial fact-finding here is allowed under Ice. Thus, Hooks was
initially and constitutionally subject to consecutive sentences according to the “guided
discretion” of the court. See Foster, 845 N.E.2d at 495. Moreover, Hooks was always
aware of the potential for consecutive sentences. On re-sentencing post-Foster he
remained subject to consecutive sentences within the discretion of the court. Since
Hooks was always subject to consecutive rather than concurrent sentences in the
No. 08-4549 Hooks v. Sheets Page 7
discretion of the trial court, his re-sentencing under Foster did not raise ex post facto or
due process concerns. We need not reach the broader question of whether re-sentencing
under Foster ever violates the Due Process or Ex Post Facto Clauses because Foster’s
application in Hooks’s case does not do so.
AFFIRMED.