Kelly L. VOLPE, Petitioner-Appellant, v. Ginine TRIM, Warden, Respondent-Appellee.
No. 11-4365.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 12, 2012. Decided and Filed: Jan. 8, 2013. As Amended on Denial of Rehearing Jan. 31, 2013.
Gonzalez appears to argue that consent is coerced whenever police use an unwarned statement to obtain consent. But a categorical rule is inconsistent with the multi-factor, holistic approach to assessing voluntariness that this Court and the Supreme Court have endorsed.32 Gonzalez‘s position appears to be an analog of the “cat out of the bag” theory rejected in Oregon v. Elstad.33 Just as a confession following an unwarned confession may be voluntary, consent following an unwarned confession may be voluntary.34 Accordingly, this argument is without force.35
*
*
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The district court found that Gonzalez voluntarily consented to the search of a house containing marijuana. His consent was not automatically involuntary merely because his Miranda rights were violated. And even if government agents violated Edwards when they sought his consent, that Edwards violation would not suffice to justify suppression of the marijuana. We therefore AFFIRM the judgment of conviction that is based on the partial denial of Gonzalez‘s motion to suppress.
ARGUED: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
OPINION
HELENE N. WHITE, Circuit Judge.
Petitioner Kelly L. Volpe (Volpe), an Ohio state prisoner, appeals the district court‘s denial of her
I.
A.
The facts recounted by the state appellate court are undisputed:
On the evening of February 24, 2006, two motorists in the northwest area of Columbus called 911 to report a person driving a pick-up truck erratically. One of the motorists saw that the driver was a woman and that there was also a child in the truck. Both motorists witnessed the truck jump up onto the curbed median on at least two occasions, frequently go left of center, and stop at stop lights far short of the intersections and then fail to move when the light changed to green without prompting from other motorists. One of the motorists followed the truck for half an hour, trying to help the police locate it. Before the police could find it, the truck went off the road, and crashed into a tree.
State v. Volpe, No. 06AP-1153, 2008 WL 928342, at *1 (Ohio Ct.App. 10th Dist. Apr. 8, 2008) (unpublished). Upon arriving at the crash scene, the police found Volpe, intoxicated and trapped behind the truck‘s steering wheel. Volpe‘s daughter, found on the ground on the other side of the truck, died three days later from multiple blunt-force injuries consistent with a car accident. Id.
B.
An Ohio grand jury charged Volpe with: (1) two counts of aggravated vehicular homicide (AVH) (one based on operating a vehicle while under the influence (OVI) and one based on recklessly causing her daughter‘s death), each with a specification that she had been convicted, or pleaded guilty, of three or more prior OVI or equivalent municipal offenses within the last six years; and (2) OVI with a specification that she had been convicted, or pleaded guilty, of five or more equivalent offenses within the last twenty years.
Volpe proceeded to trial and the jury found her guilty of all three charges and specifications. For sentencing purposes, the trial court merged the recklessness-based AVH count with the OVI-based AVH count and sentenced Volpe to a ten-year prison term for one AVH count plus a three-year prison term for the specification. The trial court also sentenced Volpe to a thirty-month prison term for the OVI count plus a five-year prison term for the specification. The trial court ordered the prison terms, for both the offenses and specifications, to run consecutively; thus, Volpe received a total prison term of twenty-years and six months.
On direct appeal, Volpe argued that the trial court erred when it imposed consecutive prison terms for the AVH and OVI convictions—rather than merge them for sentencing purposes—because the offenses were allied offenses of similar import under Ohio‘s multi-count statute,
In April 2008, the state appellate court affirmed Volpe‘s convictions and rejected her double jeopardy claim:
[A]ppellant contends in her first assignment of error that the trial court erred when it failed to merge the counts of ... AVH ... and OVI for purposes of sentencing. The concept of merger for sentencing purposes arises out of the double jeopardy provisions of both the United States and Ohio Constitutions. These provisions guard against successive prosecutions and cumulative punishments for the same offense.
... [T]o determine whether cumulative punishments may be imposed for crimes that arise from a single criminal act, we must apply the Supreme Court of Ohio‘s decision in State v. Rance, [85 Ohio St.3d 632,] 710 N.E.2d 699 (Ohio 1999). Under Rance, our analysis begins with
R.C. 2941.25 , the General Assembly‘s “clear indication” of its intent to permit cumulative punishments for the commission of certain offenses. With that statute, the General Assembly permits multiple punishments if the defendant commits offenses of dissimilar import. If, however, the defendant‘s actions constitute two or more allied offenses of similar import, the defendant may only be convicted (specifically, found guilty and punished) of only one. However, if offenses of similar import are committed separately or with a separate animus, the defendant may be punished for both.Thus, to determine whether appellant may be punished for both AVH and OVI, we must decide whether those offenses are allied offenses of similar import. In determining whether crimes are allied offenses of similar import, the Supreme Court of Ohio explained 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 result in the commission of the other.” The court explained that if the elements do so correspond, the defendant may not be convicted of both “unless the court finds that the defendant committed the crimes separately or with separate animus.” If they do not, the offenses are of dissimilar import, and the defendant may be punished for both.
The jury found appellant guilty of two counts of AVH in violation of
(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the death of another or the unlawful termination of another‘s pregnancy in any of the following ways:
(1)(a) As the proximate result of committing a violation of [
R.C. 4511.19(A) ] [(the OVI statute)] or of a substantially equivalent municipal ordinance[.]***
(2) * * * (a) Recklessly;
***
[(3)] * * * (a) Negligently[.]
Further, the AVH count also contained allegations of prior OVI convictions (three convictions within six years) that increased the severity of the count from a second-degree felony to a first-degree felony. When the existence of a prior conviction transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime. These prior convictions are, therefore, also elements that must be considered in the Rance analysis.
Appellant was also found guilty of OVI in violation of
No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
The person is under the influence of alcohol, a drug of abuse, or a combination of them.
Additionally, this count contained allegations of prior OVI convictions (five convictions within 20 years) that increased the severity of the count from a first-degree misdemeanor to a fourth-degree felony. These prior convictions are, therefore, also elements that must be considered in the Rance analysis.
We find these counts of AVH and OVI are not allied offenses of similar import. Comparing the statutory elements of each offense in the abstract, they do not correspond to such a degree that the commission of one crime will result in the commission of the other. It is obvious that one could drive under the influence of alcohol, a drug of abuse, or a combination of them in violation of
One other appellate court has also determined that AVH and OVI are not allied offenses of similar import. Other courts have found similar offenses, aggravated vehicular assault and vehicular homicide, not to be allied offenses of similar import of OVI.
Because the AVH and OVI offenses are not allied offenses of similar import, the trial court properly sentenced appellant on both counts. Appellant‘s first assignment of error is overruled.
Volpe, 2008 WL 928342, at *13-15 (formatting altered; internal citations altered or omitted).
Volpe then filed a motion for reconsideration, relying on an Ohio Supreme Court decision that was issued one day after the appellate court‘s decision in her case. The motion was denied:
In her application for reconsideration, appellant argues we should reconsider our opinion in light of State v. Cabrales, [118 Ohio St.3d 54,] 886 N.E.2d 181 (Ohio 2008), which was released one day after we released our opinion in the case
at bar. Appellant argues that Cabrales requires that we reach a different conclusion on the issue of whether the AVH count and the OVI count at issue here should merge for sentencing purposes. We disagree.
Appellant correctly points out that Cabrales attempts to clarify the Rance test under
R.C. 2941.25(A) . Cabrales sets forth the following analysis:In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. (State v. Rance ..., clarified.)Applying the Cabrales analysis to the case at bar, it is obvious that the commission of the OVI offense at issue here (a fourth degree felony violation of
R.C. 4511.19[A] ) will not necessarily result in the commission of an AVH offense because the OVI offense does not necessarily result in the death of another. The more difficult question is whether the commission of the AVH offense at issue here (proximately causing the death of another while operating a motor vehicle in violation ofR.C. 4511.19[A] ), necessarily results in the commission of the fourth degree felony violation ofR.C. 4511.19(A) . We conclude that it does not.In order to determine whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , Cabrales requires that we compare the elements of the offenses in the abstract without considering the evidence in the case to determine whether the commission of one offense will necessarily result in the commission of the other. However, as the court clarified in Cabrales, an exact alignment of the elements is not required.Here, pursuant to
R.C. 4511.19(A) and4511.19(G)(1)(d) , the elements of fourth degree felony OVI are:
- operation of a vehicle;
- under the influence of alcohol and/or drugs; and
- with five or more prior OVI convictions or guilty pleas within 20 years of the offense.
Pursuant to
R.C. 2903.06(B)(2)(c) , the elements of the first degree felony AVH offense at issue here are:
- causing death;
- as a proximate result of an OVI offense;
- while operating a vehicle;
- while under suspension; or
- having three prior OVI convictions or guilty pleas within the previous six years.
Comparing the elements of these offenses in the abstract reveals that the commission of the first degree felony AVH does not necessarily result in the commission of the fourth degree felony OVI offense because this OVI offense requires five or more prior OVI convictions or guilty pleas within the last 20 years. The first degree felony AVH offense requires only three prior OVI convictions within the previous six years. Therefore, these offenses are not allied offenses of similar import under
R.C. 2941.25(A) , as interpreted by Rance, and clarified by Cabrales.State v. Volpe, No. 06AP-1153 (Ohio Ct. App. 10th Dist. June 3, 2008) (PID 376-80;
D.
In September 2009, Volpe timely filed this habeas action, raising the double jeopardy claim that she exhausted in state court. A magistrate judge issued a report, recommending denial of Volpe‘s habeas petition on the basis that the state appellate court‘s determination that the state legislature intended to authorize cumulative punishments for both AVH and OVI foreclosed habeas relief. Volpe v. Trim, No. 09-cv-790, 2011 WL 5326073 (S.D.Ohio Sept. 26, 2011) (unpublished). The magistrate judge noted that:
In 2010, the Supreme Court of Ohio set forth a new test for determining whether two offenses are allied offenses of similar import pursuant to
Ohio Rev. Code § 2941.25 . See State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061 (Ohio 2010). Because [a federal] [c]ourt must assess the state court‘s decision at the time it was issued, [I] will not consider this new test.Id. at *9 n. 1 (internal citation altered).
After reviewing Volpe‘s timely objections to the magistrate judge‘s report, the district court adopted the report insofar as it recommended denial of Volpe‘s petition and dismissed the action. See Volpe v. Trim, No. 09-cv-790, 2011 WL 5326069 (S.D.Ohio Nov. 7, 2011) (unpublished). Volpe timely appealed, and the district court granted a certificate of appealability.
II.
A.
In a federal habeas appeal, “we review de novo the district court‘s conclusions on issues of law and on mixed questions of law and fact and review its factual findings for clear error.” Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir.2011) (en banc). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may grant habeas relief only if the state court‘s adjudication of a prisoner‘s claim:
- 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; or
- 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) .
Only the first provision is at issue here, under which the term “clearly established Federal law ... refers to the holdings, as opposed to the dicta, of th[e Supreme Court]‘s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted). A state court‘s decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495. An “unreasonable application” occurs when “the state court identifies the correct governing legal principle from [the Supreme] Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.” Id.
B.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the
The Supreme Court has interpreted the multiple-punishments aspect of the Double Jeopardy Clause as protecting defendants from being punished more than once for a single act when the legislature does not intend for the punishments to be cumulative. See Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In other words, “[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, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); see White v. Howes, 586 F.3d 1025, 1035 (6th Cir.2009) (“The current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, or overlapping offenses.“). When two different statutory provisions authorize punishment for the same act, “[t]he first step is to determine whether [the legislature] intended to punish cumulatively the same conduct which violates two statutes.” United States v. Johnson, 22 F.3d 106, 107-08 (6th Cir.1994); see Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (“[T]he question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.“).
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court developed the “same elements” test to determine whether Congress has authorized cumulative punishments: “The applicable rule is that, 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.” Id. at 304, 52 S.Ct. 180. The Blockburger test, however, is a “rule of statutory construction,” Albernaz, 450 U.S. at 340, 101 S.Ct. 1137 (quoting Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)), “not a constitutional test in and of itself,” McCloud v. Deppisch, 409 F.3d 869, 875 (7th Cir.2005), as quoted in Palmer v. Haviland, 273 Fed.Appx. 480, 486 (6th Cir.2008) (unpublished); see Hunter, 459 U.S. at 368, 103 S.Ct. 673 (explaining that the Blockburger test, as modified by subsequent precedent, “is not a constitutional rule requiring courts to negate clearly expressed legislative intent“). As a result, the Blockburger test “does not necessarily control the inquiry into the intent of a state legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court‘s inquiry is at an end.” Johnson, 467 U.S. at 499 n. 8, 104
Moreover, “[w]hen assessing the intent of a state legislature, a federal court is bound by a state court‘s construction of that state‘s own statutes.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir.1989) (citing Hunter, 459 U.S. at 368, 103 S.Ct. 673; O‘Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974)). “Under the [D]ouble [J]eopardy [C]lause, when evaluating whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, a federal court is bound by a state court‘s determination of the legislature‘s intent.” Id. (citations omitted). “Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination.”1 Id.; see Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (“We have repeatedly held that a state court‘s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.“); Jones v. Sussex I State Prison, 591 F.3d 707, 710 (4th Cir.2010) (“[W]hen the charged offenses violate state law, the double jeopardy analysis hinges entirely on the state-law question of what quantum of punishment the state legislature intended. Once a state court has answered that state-law question, there is no separate federal constitutional standard requiring that certain actions be defined as single or as multiple crimes.” (internal citation and alteration omitted)).
C.
To determine whether the Ohio General Assembly intended to authorize cumulative punishments, Ohio courts apply the state‘s multi-count statute, which 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.
(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.
Two years after Volpe exhausted her appellate remedies and while her habeas petition was pending, the Ohio Supreme Court overruled Rance, stating that Rance‘s “in the abstract” test proved difficult in application and raised concern about the “constitutional protection underlying the proper application of” section 2941.25. Johnson, 942 N.E.2d at 1066-70. Under the heading “[p]rospective analysis of allied offenses,” the Ohio Supreme Court announced a new interpretation of section 2941.25:
[T]he court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger.
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. If 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.If the multiple offenses can be committed by the same conduct, 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.
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.Id. at 1070 (reformatted; internal citations and quotation marks omitted).
III.
The essential premises of Volpe‘s appeal are that 1) we should apply Johnson‘s new interpretation of section 2941.25 in this federal habeas proceeding, notwithstanding that the Ohio appellate court, applying the then-controlling Rance test,2 determined that the Ohio General Assembly intended to permit cumulative punishments for both AVH and OVI, and the Ohio Supreme Court did not disturb that ruling on direct appeal; and 2) applying Johnson, the two offenses are allied offenses of similar import. Because we disagree with her first proposition, we do not reach her second.
A.
In support of her proposition that Johnson “unbinds” this court from the
When the Supreme Court of Ohio overrules its interpretation of a state statute, the correction has retroactive application. Agee v. Russell, 92 Ohio St.3d 540, 751 N.E.2d 1043 (2001). In reviewing a previous statutory interpretation the court is not creating new law, but rather deciding what the statute meant from its inception. Additionally, Johnson and Cabrales make clear that decisions of lower Ohio courts had misinterpreted Ohio‘s statute governing allied offenses, thereby creating unreasonable results inconsistent with the Double Jeopardy Clause. Therefore, Johnson‘s interpretation of Ohio Revised Code § 2941.25 has retroactive interpretation [sic].
Habeas courts are required to follow an Ohio court‘s determination of the legislature‘s intent only if it is undisturbed by the Supreme Court of Ohio. Banner, 886 F.2d at 780. Respondent is correct that in general a habeas court is required to follow an Ohio court‘s determination of whether the Ohio legislature intended that a single act receive multiple punishments. Id. The Sixth Circuit, however, stated that the general rule applies only to an interpretation by a majority of a state‘s courts “undisturbed” by the state‘s highest court. Id. In this case, the Supreme Court of Ohio disturbed the former prevailing interpretation of Ohio Revised Code § 2941.25 through its holding in Johnson.
Therefore, the interpretation of Ohio Revised Code § 2941.25 in Johnson applies retroactively to this case and convicting Petitioner of both felonious assault and felony murder violates Ohio‘s statute and the Double Jeopardy Clause. In this case, multiple sentences for one offense is a result contrary to clearly established federal law which qualifies Petitioner for a writ of habeas corpus under AEDPA[.]
Id. at *4-5 (internal citations altered or omitted).
B.
We are not persuaded that Johnson controls our consideration of Volpe‘s double jeopardy claim. First, we do not find Walters persuasive. Banner does not suggest that a federal habeas court is not bound by a state court‘s legislative-intent determination (made in a petitioner‘s direct appeal of the challenged conviction and left undisturbed by the state‘s highest court in that appeal) if that ruling is later called into doubt by new precedent issued by the state‘s highest court after the petitioner has exhausted her state appellate remedies. Second, Walters did not consider
1.
Banner does not permit reexamination of state-law questions in habeas review. In rejecting the petitioner‘s double jeopardy claim, the Banner court reasoned:
[T]he Tennessee Supreme Court affirmed the Tennessee Court of Criminal Appeals’ holding that the legislature intended cumulative punishment for aggravated assault and firing into an occupied dwelling. We are therefore bound by that holding. However much the magistrate and district court may have agreed with Judge Daughtrey‘s dissent for the Tennessee Court of Criminal Appeals, the district court was obligated to honor the construction of the majority of judges [of the state appellate court] on this question of Tennessee law. Barring some other constitutional impediment, the majority view of that [state appellate] court, undisturbed by the Supreme Court of Tennessee, must be accepted as the law of Tennessee and the state law of this case.
Banner, 886 F.2d at 780 (emphasis added).
When read in context, Banner—in relying on the fact that the state appellate court‘s ruling had been “undisturbed” by the state‘s highest court—was referring to the appellate process in that case. Here, as in Banner, the state appellate court‘s determination of legislative intent was undisturbed by the state‘s highest court on direct appeal. Banner did not address the question we now face: Whether subsequent precedent articulating a new view of the law, issued by the state‘s highest court after a petitioner has exhausted her appellate remedies, permits us to reexamine whether the state legislature intended to authorize cumulative punishments, and whether, if such reexamination is proper, the application of the new precedent is a question exclusively confided to the state courts.
2.
The Constitution does not require that state-court decisions be applied retroactively, see Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); Bowen v. Foltz, 763 F.2d 191, 193-94 (6th Cir.1985), and the retroactive application of new state decisional law to a petitioner‘s conviction after she has exhausted her appellate remedies is a state-law question, on which the state courts have the last word. See Houston v. Dutton, 50 F.3d 381, 385 (6th Cir.1995); see also Burleson v. Saffle, 278 F.3d 1136, 1140 (10th Cir.2002); Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 811 (3d Cir.1981).
Volpe has not applied for post-conviction relief in an Ohio state court seeking the application of Johnson. We must therefore determine whether the Ohio courts have applied or would apply Johnson retroactively. In Agee, a state habeas case on which Walters relied, the Ohio Supreme Court held that new state supreme court precedent interpreting a legislative enactment did not present a retroactivity problem because, in issuing its decision, the court did not announce a new rule of law but merely had determined what the statute had meant since its enactment. 751 N.E.2d at 1047. Agee opined that its “conclusion [was] consistent with [the court‘s prior] holding that[,] in the absence of a specific provision in a decision declaring its application to be prospective only, ... [a decision of the Ohio Supreme Court] shall be applied retrospectively as well.” Id. (citation, alteration and internal quotation marks omitted; formatting altered).
Agee appears to be in tension with Ali. Nonetheless, assuming Agee applies, the question is whether the Ohio Supreme Court in Johnson declared its ruling to be prospective only. In Johnson, the Ohio Supreme Court labeled its section concerning its new test as a “[p]rospective analysis of allied offenses under
Given that the decisions of the Ohio Supreme Court point to no clear answer, we look to the decisions of the Ohio appellate courts, which have consistently held that Johnson does not apply retroactively to cases where the defendant has already exhausted her appellate remedies. See, e.g., State v. Hughes, No. 12AP-165, 2012 WL 4503148, at *3 (Ohio Ct.App. 10th Dist. Sept. 28, 2012); State v. Boyce, No. 11CA0095, 2012 WL 3542268, at *2 (Ohio Ct.App. 2d Dist. Aug. 17, 2012); State v. Boone, 975 N.E.2d 546, 556 (Ohio Ct.App. 10th Dist.2012); State v. Pound, Nos. 24789, 24980, 2012 WL 3061455, at *3 (Ohio Ct.App. 2d Dist. July 27, 2012), leave denied, 133 Ohio St.3d 1490, 978 N.E.2d 910 (2012) (table decision); State v. Dukes, Nos. 2011-P-0098, 2011-P-0099, 2012 WL 2522968, at *2 (Ohio Ct.App. 11th Dist. June 29, 2012), leave denied, 133 Ohio St.3d 1467, 977 N.E.2d 694 (2012) (table decision); State v. Kelly, No. 97673, 2012 WL 2459149, at *3 (Ohio Ct.App. 8th Dist. June 28, 2012); State v. Champion, No. 24782, 2012 WL 2061590, at *1 (Ohio Ct. App. 2d Dist. June 8, 2012), leave denied, 133 Ohio St.3d 1424, 976 N.E.2d 914 (2012) (table decision); State v. Holliday, No. 11CAA110104, 2012 WL 1964026, at *2 (Ohio Ct.App. 5th Dist. May 29, 2012); State v. Hickman, No. 11-CA-54, 2012 WL 1744531, at *2 (Ohio Ct.App. 5th Dist. May 11, 2012), leave denied, 133 Ohio St.3d 1411, 975 N.E.2d 1029 (2012) (table decision); State v. Smith, No. 9-11-36, 2012 WL 1494285, at *5 (Ohio Ct.App. 3d Dist. Apr. 30, 2012), leave denied, 132 Ohio St.3d 1533, 974 N.E.2d 1210 (2012) (table decision); State v. Layne, No. 11CA17, 2012 WL 1247209, at *3 (Ohio Ct.App. 4th Dist. Apr. 5, 2012); State v. Parson, No. 24641, 2012 WL 601807, at *2 (Ohio Ct.App. 2d Dist. Feb 24, 2012); cf. Melson v. Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir.2005) (“In order to determine how the state supreme court would rule, we look to the decisions of the state‘s intermediate courts unless we are convinced that the state supreme court would decide the issue differently.“).
3.
Volpe argues that notwithstanding the Ohio courts’ determinations to the contrary, the issue cannot be one of retroactivity because Johnson cannot have announced new law. The argument proceeds as follows: the law at issue is a statute; therefore, all the Ohio Supreme Court did in Johnson was make clear what the Ohio General Assembly meant from the start.
The problem with this seemingly compelling argument is that legislatures often express their intent in broad concepts, leaving the development and application of those concepts to the state‘s highest court. Here, the Ohio legislature did not provide a statutory definition of the controlling term “allied offenses of similar import.”
This allowance for judicial development of statutory law without running afoul of the Constitution is implicit in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001) (per curiam), and Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003) (per curiam), which involved the question when new judicial interpretations of statutory law became controlling. In the context of a state prisoner‘s habeas legal-sufficiency challenge to his conviction, the U.S. Supreme Court held “that retroactivity [was] not at issue” in applying new state supreme court precedent interpreting a criminal statute because the state court‘s ruling, although issued after the petitioner‘s conviction became final, furnished “[the] correct statement of the law when [the petitioner‘s] conviction became final.” Fiore, 531 U.S. at 226, 121 S.Ct. 712. In
Underlying the Pennsylvania Supreme Court‘s answer to the certified question in Fiore was the fact that it did not overrule or change any controlling precedent interpreting the statute. See Fiore v. White, 562 Pa. 634, 757 A.2d 842, 848 (2000) (“[W]hen we have not yet answered a specific question about the meaning of a statute, our initial interpretation does not announce a new rule of law. Our first pronouncement on the substance of a statutory provision is purely a clarification of an existing law.... Consequently, [when interpreting the statute for the first time,] we were not in a position to overrule a decision by this Court.“). In light of the state court‘s certification, the U.S. Supreme Court held, based on the uncontested facts of the petitioner‘s case, that his conduct did not violate the criminal statute under which he had been convicted and thus his conviction violated due process. Fiore, 531 U.S. at 228-29, 121 S.Ct. 712.
Further, the Supreme Court held in Bunkley that, when state law has changed or evolved by judicial decision, the “[t]he proper question under Fiore is not just whether the law changed. Rather, it is when the law changed.” Bunkley, 538 U.S. at 841-42, 123 S.Ct. 2020. In Bunkley, the Court clarified the Fiore inquiry in the context of a petitioner‘s direct appeal from his state court collateral proceeding, in which the petitioner raised a sufficiency challenge based on the Florida Supreme Court‘s changed interpretation of the criminal statute under which he had been convicted. If applicable before his conviction became final, the new interpretation would arguably have rendered his conviction in violation of due process. The Court remanded the case for the state supreme court to clarify whether its changed interpretation applied at the time the petitioner‘s conviction became final. Id. at 842, 123 S.Ct. 2020.
Assuming that Fiore extends to sentencing statutes in the double jeopardy context, its rationale does not apply here because Johnson did not merely clarify section 2941.25, but expressly overruled Rance and changed more than a decade of Ohio allied-offenses jurisprudence. See 942 N.E.2d at 1066-70; see also State v. Williams, 983 N.E.2d 1245, 1249 (Ohio 2012) (“[I]n Johnson, this court abandoned the abstract analysis entirely [and] overruled Rance[.]“). The Ohio Supreme Court issued Johnson two years after Volpe‘s conviction became final. Because the Rance test was the controlling standard at the time Volpe‘s conviction became final, the Ohio courts consider Johnson‘s new test for allied offenses inapplicable to her case. See, e.g., Layne, 2012 WL 1247209, at *5 (“Although State v. Johnson ... specifi-
IV.
For the foregoing reasons, we AFFIRM the district court‘s judgment.
In re COUNTRYWIDE FINANCIAL CORP. MORTGAGE LENDING PRACTICES LITIGATION. Gillian Miller et al., Plaintiffs-Appellants, v. Countrywide Bank, N.A. et al., Defendants-Appellees.
No. 12-5250.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 5, 2012. Decided and Filed: Jan. 15, 2013.