Person v. Sheets, 060313 FED6, 12-3996

Docket Nº:12-3996
Opinion Judge:CLAY, Circuit Judge.
Party Name:DANTE PERSON, Petitioner-Appellee, v. MICHAEL SHEETS, Respondent-Appellant.
Judge Panel:BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.
Case Date:June 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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DANTE PERSON, Petitioner-Appellee,

v.

MICHAEL SHEETS, Respondent-Appellant.

No. 12-3996

United States Court of Appeals, Sixth Circuit

June 3, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.

CLAY, Circuit Judge.

Petitioner, an inmate in Ohio, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). The district court granted that petition in part on the basis of the Double Jeopardy Clause, U.S. Const. amend. V, because it found that the State of Ohio had sentenced Petitioner twice for crimes that the state court was constitutionally required to merge for the purpose of sentencing. The district court directed the State of Ohio to re-sentence Petitioner. The state appeals, arguing that the district court erred in its interpretation of the Double Jeopardy Clause under governing Ohio law. For the following reasons, we REVERSE the district court's decision to grant the writ.

BACKGROUND

A. Facts

The convictions leading to the instant petition stem from an incident that took place in early 2006. As the Ohio Court of Appeals described the incident:1

Cincinnati Police Officers Kristina Holtmann and Laureen Smith were on routine patrol in the early morning hours of January 11, 2006. The officers passed a vehicle with windows that appeared to be too darkly tinted. Additionally, the rear license plate was not illuminated. The officers activated their overhead lights and made a U-turn. The vehicle stopped and backed into a driveway before the police unit reached it. Officer Smith approached the driver's side and Officer Holtmann approached the passenger side. The driver of the car, Bryan Caulton, had an outstanding warrant. Officer Smith arrested Caulton and placed him in the backseat of the police car.

While Officer Smith was dealing with Caulton, Officer Holtmann asked Person, who was in the front passenger seat, for identification. He did not have identification, but gave Officer Holtmann his name and date of birth. Based on previous encounters with Person, Officer Holtmann believed that he had given a false last name and asked him to exit from the vehicle. After he emerged, Officer Holtmann ordered him to place his hands behind his back. Person turned, produced a handgun, and shot Officer Holtmann in the face.

Person immediately fled. As he was running, Officer Holtmann saw him turn and point his gun at her. At this point, she and Officer Smith returned fire. One of the shots struck Person in the leg, but he was able to continue fleeing.

As officers were establishing the crime scene, a witness came forward and told police that Person was in the basement of a nearby residence. A perimeter was established around the house until a S.W.A.T. unit could arrive. Police then began a systematic search of the house, discovering Person in the basement. After Person was taken into custody, he was asked what he had done with the handgun. He told an officer to "go fuck [himself]."

(R. 10, Report and Recommendation, Mar. 30, 2011, at 2.) (quoting State v. Person, 881 N.E.2d 924, 926–27 (Ohio Ct. App. 2007)).

B. Procedural History

Petitioner was indicted on January 20, 2006. The nine-count indictment charged Petitioner with two counts of attempted murder with a firearm specification, Ohio Rev. Code § 2923.02(A), three counts of felonious assault with firearm specifications in violation of Ohio Rev. Code § 2903.11(A)(1)–(2), and one count each of carrying a concealed weapon in violation of Ohio Rev. Code § 2923.12(A), carrying a weapon while under a disability in violation of Ohio Rev. Code § 2923.13(A)(3), possession of cocaine with a firearm specification in violation of Ohio Rev. Code § 2925.11(A), and burglary in violation of Ohio Rev. Code § 2911.12(A)(2). He was tried by jury in Ohio state court on all charges except the weapons-under-disability charge, which was tried by the bench. After the state presented its case, the trial court acquitted Petitioner on the burglary charge, as well as on one of the attempted murder charges. (Id.). After the trial, the jury convicted Petitioner on the two counts of felonious assault with a firearm specification pursuant to Ohio Rev. Code. § 2903.11(A)(1) & (2), as well as the charges of carrying a concealed weapon and having a weapon while under a disability. Petitioner was sentenced on July 13, 2006. At sentencing, the court found that the two felonious assault sentences should run consecutively, and sentenced Petitioner to a term of thirty-three years and six months imprisonment, based on two consecutive ten-year terms for the felonious assaults, five years for the weapon while under a disability charge, eighteen months for the concealed weapon charge, and seven years for the firearm specifications, which were merged at sentencing.

Petitioner appealed to the Ohio Court of Appeals, where he raised the claim that "[t]he trial court erred by imposing consecutive sentences on the felonious assault." (Report and Recommendation at 3.) The court denied Petitioner's appeal, over the dissent of Judge Painter. The court found that under State v. Payne, 2007 WL 1859302 (Ohio Ct. App. Dec. 21, 2007), "felonious assault in violation of R.C. 2903.11(A)(1) and felonious assault in violation of R.C. 2903.11(A)(2) are not allied offenses. Based upon our decision in Payne, we overrule [Defendant's] third assignment of error." Person, 881 N.E.2d 924, 929 (Ohio Ct. App. 2007). Judge Painter dissented, writing that: "[a]s I said when dissenting in Payne, 'One gun, one shot, one felonious assault.' Nothing has changed since then; in fact, nothing has changed since the Double Jeopardy Clauses of the Ohio and the United States Constitutions became effective, except for misguided and bizarre Ohio court decisions that defy logic, law, and common sense." Id. at 932. (internal citation omitted).

While Petitioner did not timely file his appeal with the Ohio...

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