REPORT AND RECOMMENDATIONS This is a habeas corpus case brought pro se by Petitioner Malik Rahab. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4), the Return of Writ (ECF No. 5), and Petitioner's Traverse Brief (ECF No. 6). The case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 7).
On September 5, 2014, the Hamilton County grand jury indicted Rahab on one count of burglary, a second degree felony (Indictment, State Court Record, ECF No. 4, PageID 24-25). A jury convicted him of that charge and on February 13, 2015, he was sentenced to six years imprisonment (Judgment, State Court Record, ECF No. 4, PageID 26-27).
Rahab appealed, raising one assignment of error: "The court's sentence was contrary to law because the court impermissibly punished Mr. Rahab for exercising his right to a jury trial." (State Court Record, ECF No. 4, PageID 30.) The First District Court of Appeals affirmed. State v. Rahab, Case No. C-150186 (1st Dist. Oct. 7, 2015)(unreported, copy at State Court Record, ECF No. 4, PageID 45-47). Rahab appealed pro se to the Ohio Supreme Court, raising the same assignment of error.1 That court declined jurisdiction. (State Court Record, ECF No. 4, PageID 67). However, the Hamilton County Public Defender also appealed on Rahab's behalf and the Supreme Court accepted this appeal. (Id. at PageID 79) and affirmed the First District. State v. Rahab, 150 Ohio St.3d 152 (2017). Thereafter Petitioner filed the instant habeas corpus case, pleading one ground for relief:
Ground One: Due process is violated when a defendant's sentence is based, even in part, on his decision to exercise his Sixth Amendment right to a jury trial and put the government to its burden of proof.
Supporting Facts: Pre-trial the trial court stated: " ... if you didn't take the agreed sentence and you were found guilty, it would be up to the Court to sentence you. And the Court does not look highly on cases where people don't take responsibility and accept that they did something wrong if they're found guilty. You understand that? Meaning it probably would be more. I'm not going to fool you. You understand that?"
At the sentencing hearing the trial court stated:
• "And yet he went to trial with a prove-it defense"
• "I don't understand why you wouldn't admit to that and plead to that, and you had to have a trial"
• "You went to trial. You gambled, you lost. You had no defense. And you even admit that you did it, and yet you put this woman through this trial again."
• "He went to trial with a prove-it defense. He had absolutely no defense."
• "He gambled, he lost. I'm sorry you know right from wrong, but it just does not- its like, yeah, now that its all over, oh, I'm sorry I got caught, I'm sorry I got - I went to trial and I lost. Too late. Too late. To me, too late."
• " ... he went to trial, he lost, he gambled"
• (After Mr. Rahab apologized): "Own up now. Okay. Little late."
• "I mean, it really was a prove-it defense. They had him. Okay."
• "You lost your gambling. You did this. You had no defense, and you wouldn't take responsibility. You wanted to go to trial. All, big winner you are. Six years Ohio Department of Corrections."
Mr. Rahab was convicted of burglary. One night, he opened a window to a home, reached inside with his arm and took a purse off a table by the window. Only his arm entered the house and the owner was not aware anything had happened until she came downstairs looking for her purse and noticed the open window.
(Petition, ECF No. 1, PageID 5, 16.)
Respondent raises no affirmative or procedural defenses to the Petition, but defends on the merits. He asserts that the relevant clearly established Supreme Court precedent is North Carolina v. Pearce, 395 U.S. 711 (1969), and Alabama v. Smith, 490 U.S. 794 (1989), and that the Ohio Supreme Court's application of these cases is "both correct and reasonable." (Return, ECF No. 5, PageID 180.)
The Anti-Terrorist and Effective Death Penalty Act, codified at 28 U.S.C. § 2254, limits the scope of federal habeas relief to cases where a person is in custody "in violation of the Constitution or law or treaties of the United States." § 2254(a). When the federal claim has been decided on the merits by the state courts, § 2254(d) provides the standard for review in habeas:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not begranted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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
(2) 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.
The relevant state court decision for review is that of the Ohio Supreme Court. Because that court decided the federal claim on the merits with an explanation of its decision, this Court does not "look through" that decision to that of the First District Court of Appeals. Wilson v. Sellers, 138 S.Ct. 1188 (2018); Ylst v. Nunnemaker, 501 U.S. 797 (1991).
However, the opinion of the Ohio Supreme Court was divided, with only Justice French concurring in the controlling opinion of Justice DeWine. Three other justices (O'Connor, O'Donnell, and Kennedy) concurred in the judgment only, without offering any explanation of their votes. Judge Hoover of the Fourth Appellate District, who was sitting for Justice Fischer, dissented in part with the concurrence of Justice O'Neill.
United States Supreme Court precedent is unclear as to how to treat such a fractured decision. It is unlike an unexplained state supreme court decision which a habeas court must "look through" to the last reasoned state court decision. See Ylst, supra. Rather, it is a decision with an explanation that has not garnered a majority or even a plurality opinion. Under those circumstances, this Court must determine whether the decision of the Ohio Supreme Court is contrary to or an unreasonable application of United States Supreme Court precedent, hypothesizing other rationales that might support the decision. Harrington v. Richter, 562 U.S. 86, 103 (2011).
The Constitutional Right At Issue Due process of law prohibits a judge from imposing a sentence motivated in any part by a desire to punish a defendant for exercising his criminal procedural rights.
In North Carolina v. Pearce, supra, the Supreme Court considered two cases in which defendants had won a new trial by post-conviction process and then were sentenced more harshly after the second trial. Pearce, decided the same day the Court made the Double Jeopardy Clause applicable to the States.2 involved a double jeopardy question which is not presented here. Having disposed of double jeopardy and equal protection arguments, the Court turned to the Due Process claim. Justice Stewart wrote:
It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, "penalizing those who choose to exercise" constitutional rights, "would be patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights." Id., at 582. See also Griffin v. California, 380 U.S. 609; cf. Johnson v. Avery, 393 U.S. 483. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. (footnote omitted) "A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant." Nichols v. United States, 106 F.2d 672, 679. A court is "without right to . . . put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. . . . It is unfair to use the great powergiven to the court to determine sentence to place a defendant in the dilemma of making an unfree choice." Worcester v. Commissioner, 370 F.2d 713, 718. See Short v. United States, 120 U. S. App. D. C. 165, 167, 344 F.2d 550, 552. "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S. 353; Lane v. Brown, 372 U.S. 477; Draper v. Washington, 372 U.S. 487." Rinaldi v. Yeager, 384 U.S. 305, 310-311.
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack
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