Herbert v. Billy

• Decision Date: 21 January 1999
• Docket Number: Nos. 97-4287,97-4288,s. 97-4287
• Citation: 160 F.3d 1131,1998 WL 801319
• Parties: Thomas J. HERBERT (97-4287); Nicole R. Green; Thomas G. Morgan; Thomas L. Magelaner; Denise Nibert; George H. Grosser; John T. Weber; Allison M. Byrne-Nucerino; Jack C. Butler; Orlando Wilborn (97-4288), Petitioners-Appellants, v. Gerry BILLY, Licking County Sheriff, et al. (97-4287); James A. Karnes, Franklin County Sheriff; Al Myers, Delaware County Sheriff (97-4288), Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1131

160 F.3d 1131

Thomas J. HERBERT (97-4287); Nicole R. Green; Thomas G Morgan; Thomas L. Magelaner; Denise Nibert; George H Grosser; John T. Weber; Allison M. Byrne-Nucerino; Jack C. Butler; Orlando Wilborn (97-4288), Petitioners-Appellants, v. Gerry BILLY, Licking County Sheriff, et al. (97-4287) James A. Karnes, Franklin County Sheriff; Al Myers, Delaware County Sheriff (97-4288), Respondents-Appellees.

Nos. 97-4287, 97-4288.

United States Court of Appeals Sixth Circuit.

Argued Oct. 7, 1998.

Decided Nov. 20, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 21, 1999.

Samuel H. Shamansky (argued), Cassidy & Meeks, Columbus, Ohio, for Petitioner-Appellant in No. 97-4287.

R. William Meeks (briefed), Samuel H. Shamansky (argued and briefed), Cassidy & Meeks, Columbus, Ohio, for Petitioners-Appellants in No. 97-4288.

Steven L. Taylor (argued and briefed), Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, David Q. Wigginton, Office of the County Prosecutor, Newark, Ohio, Donald G. Keyers, Asst. Attorney Gen., Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Respondent-Appellees in No. 97-4287.

Steven L. Taylor (argued and briefed), Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, Donald G. Keyer, Asst. Attorney Gen., Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Respondent-Appellee Karnes in No. 97-4288.

Steven L. Taylor (argued and briefed), Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, William Duncan Whitney, Dane A. Gaschen (briefed), Delaware County Prosecuting Attorney's Office, Delaware, Ohio, for Respondent-Appellee Myers in No. 97-4288.

Before: NELSON and NORRIS, Circuit Judges; GWIN, ^* District Judge.

GWIN, District Judge.

In this appeal, Appellants Thomas J. Herbert, Nicole R. Green, Thomas G. Morgan, Thomas L. Magelaner, Denise Nibert, George H. Grosser, John T. Weber, Allison M. Byrne-Nucerino, Jack C. Butler, and Orlando Wilborn appeal from the Judgment of the district court denying their petition for habeas corpus relief pursuant to 28 U.S.C. § 2254(d)(1). In their petition, appellants claim that the Double Jeopardy provision of the Fifth Amendment to the U.S. Constitution prevents a criminal conviction of driving under the influence of alcohol when Ohio had earlier suspended their drivers' licenses under the Administrative License Suspension provisions of Ohio Rev.Code § 4511.191(D). Because we find that the Ohio Administrative License Suspension provision of Ohio Rev.Code § 4511.191(D) is not punishment and because we find that decisions of the Ohio courts in their cases were neither contrary to, nor an unreasonable application of, clearly established Double Jeopardy law as determined by the United States Supreme Court, we AFFIRM the judgment of the district court.

I.

Petitioners brought this action for habeas relief under 28 U.S.C. § 2254(d)(1). Petitioners argue that a criminal conviction after an earlier administrative license suspension violates their rights under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

The petitioners' claims arise out of procedures following their being stopped for operating a motor vehicle while under the influence of alcohol ("OMVI"). After law enforcement officers stopped each petitioner, each submitted to a chemical test for breath-alcohol content. Each failed the test. After the petitioners failed the chemical test for breath-alcohol content, the arresting officers suspended each petitioner's driver's license pursuant to the Administrative License Suspension provisions of Ohio Rev.Code § 4511.191(D).

The law enforcement officers also charged each petitioner with an OMVI offense under Ohio Rev.Code § 4511.19. ¹ Each petitioner was later found guilty of driving while under the influence of alcohol.

The petitioners appealed their convictions to the appropriate state appellate court. ² Petitioners claimed that an OMVI conviction under Ohio Rev.Code § 4511.19(A)(3) was barred by the Double Jeopardy Clause because it followed an administrative license suspension under § 4511.191. The state appellate courts dismissed each appeal. The Ohio Supreme Court affirmed. ³

Petitioners subsequently filed Petitions for Writs of Habeas Corpus with the United States District Court for the Southern District of Ohio. Upon agreement of the parties, the district court consolidated all cases except that of Petitioner Herbert. In opinions and orders dated September 25, 1997, and October 7, 1997, respectively, the court dismissed all of the habeas petitions. Each Petitioner filed a timely notice of appeal.

II.

In 1993, the Ohio General Assembly enacted legislation directed to problems associated with drunk driving on Ohio highways. ⁴ State v. Gustafson, 76 Ohio St.3d 425, 431, 668 N.E.2d 435 (1996). In this legislation, the Ohio General Assembly revised Ohio's implied consent statute, Ohio Rev.Code § 4511.191. The revision authorized immediate "on-the-spot" suspensions of driving privileges at the time of an OMVI arrest. OHIO REV.CODE § 4511.191(D). The revision also required an arresting officer to carry out an administrative license suspension for motorists who either (1) refuse, upon the officer's request, to submit to a chemical test to detect blood, breath or urine alcohol content; or (2) take the test, but "fail" it, i.e., the driver registers a blood-, breath- or urine-alcohol content exceeding statutory limits. Id. In making such a suspension, the arresting officer acts "[o]n behalf of the registrar" of the bureau of motor vehicles.

Sections 4511.191(E) and (F) establish the range of the administrative license suspension. Suspension ranges from ninety days (imposed upon a first offender who "fails" a chemical test) to five years (imposed upon an arrestee who refuses testing and who has refused chemical testing on three or more prior occasions in the preceding five years). Gustafson, 76 Ohio St.3d at 431, 668 N.E.2d 435.

The driver may appeal the suspension at an initial appearance before the criminal court hearing the criminal charge. ⁵ However, any appeal of an administrative license suspension does not, by itself, stay the suspension. OHIO REV.CODE § 4511.191(H).

After the period of suspension is over, the driver may request the Bureau of Motor Vehicles to return or reissue the suspended license. The Bureau returns the license upon payment of a $250 reinstatement fee and proof of compliance with Ohio's financial responsibility requirements. OHIO REV.CODE § 4511.191(L).

III.

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"). The AEDPA requires heightened respect for state court factual and legal determinations. The AEDPA applies to all habeas cases filed after April 24, 1996. ⁶ Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997) ("We hold that ... the new provisions of chapter 153 generally apply only to cases filed after the Act became effective."); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998).

With the AEDPA, Congress limited the source of law for habeas relief to cases decided by the United States Supreme Court. Before a writ may issue under the AEDPA, the federal court must find that the state court's adjudication of the claim was "contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). This provision marks a significant change from the previous language by referring only to law determined by the Supreme Court. A district court or court of appeals no longer can look to lower federal court decisions in deciding whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. 17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4261.1 (2d ed. Supp.1998).

Other circuit courts of appeal have examined the changed standard of review resulting from the AEDPA. In an en banc decision, the Seventh Circuit discussed § 2254(d) in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The Seventh Circuit held that reasonable state court judgments are beyond the scope of federal review:

Section 2254(d)(1) as we read it does no more than regulate relief. It tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called "unreasonable."

* * * * * *

For current purposes it is enough to say that when the constitutional question is a matter of degree, rather than of concrete entitlements, a "reasonable" decision by the state court must be honored. By posing the question whether the state court's treatment was "unreasonable," § 2254(d)(1) requires federal courts to take into account the care with which the state court considered the subject.

* * * * * *

The Supreme Court of the United States sets the bounds of what is "reasonable"; a state decision within those limits must be respected--not because it is right, or because federal courts must abandon their independent decision making, but because the grave remedy of upsetting a judgment entered by another judicial system after full litigation is reserved for grave occasions. That is the principle change effected by § 2254(d)(1).

Id. at 870-71. ⁷

Under the AEDPA, the district court could find the state court determinations unreasonable "only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect. In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists."...