Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 05-00810-Gregory L. Frost, District Judge.
The opinion of the court was delivered by: Helene N. White, Circuit Judge
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Before: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.
Respondent-Appellant, the Warden of Noble Correctional Institution ("Warden"), appeals a district court judgment granting Petitioner-Appellee Gerardo Villagarcia's petition for a writ of habeas corpus under 28 U.S.C. § 2254. We AFFIRM.
After an Ohio state-court jury convicted Villagarcia of child endangerment and felonious assault, the trial court sentenced him to two seven-year terms and one four-year term of imprisonment, to be served concurrently. Villagarcia exhausted his state-court remedies, and then brought this petition for habeas corpus, challenging his sentence as unconstitutional because it was enhanced beyond the statutory maximum by judicial fact-finding in violation of the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The district court granted his petition and ordered the State of Ohio to vacate his sentence or resentence him within 90 days. The district court's order was stayed pending appeal.
In 2002, Villagarcia was charged in Ohio state court with one count of child endangering in violation of Ohio Rev. Code Ann. § 2919.22(B)(1),*fn1 one count of child endangering in violation of § 2919.22(A),*fn2 and one count of felonious assault in violation of § 2903.11(A)(1).*fn3 The charges stemmed from injuries suffered by five-month-old Madison Fredritz, the daughter of Villagarcia's roommate/girlfriend. Villagarcia pleaded not guilty to all charges, and the case proceeded to jury trial.
At trial, witnesses presented testimony concerning the care and behavior of Madison on September 21, 2005, the day she was injured. That day, Madison was in the care of her mother, Trish Fredritz, and Villagarcia. At 4:30 p.m., Villagarcia fed Madison a bottle, and shortly after, at 5:00 p.m., Trish left for work, leaving Madison in the care of Villagarcia. Madison slept in her cradle for several hours, and, at 8:30 p.m., Villagarcia woke her to feed her another bottle. Madison began to cry, and Villagarcia saw that she was having difficulty breathing. He said that it seemed as though "she was running out of breath, she wasn't breathing well," so he "picked her up" and "sh[ook] her a little bit so that she could respond." Villagarcia denied hitting Madison, although he testified that her head was rattling while he shook her. Ten to fifteen minutes later, Villagarcia called Trish. At this point, Madison was not crying or responding, and was almost fainting. Villagarcia explained that he did not call 911 because he does not speak English.
When Trish returned home, she found Madison was limp, pale, and unresponsive, and she called 911. Madison was taken by ambulance to the hospital, and ultimately had to be placed on life support. X-rays revealed that Madison's skull was fractured and that she had suffered a sub-dural hematoma.
Two days later, Dr. Mary Ranee Leder, a doctor who specializes in child abuse, examined Madison and interviewed Trish at the hospital. At trial, Dr. Leder described Madison's head injuries as severe, and testified that such injuries are typically caused by an impact or severe force, and can occur in severe motor vehicle accidents, where a baby falls from a substantial height, or where a baby is vigorously shaken. Dr. Leder testified that it was her belief that Madison's injuries were the result of shaken-baby syndrome and that the only plausible cause was vigorous shaking with impact, the type that a reasonable observer would realize is dangerous. In addition, Dr. Leder testified that Madison's skull fracture was recent because no healing of the fracture was evident. Based on the x-rays, she estimated the injury occurred "within a week, possibly within three days" of Madison's admittance to the hospital. The "clinical information" Dr. Leder received after interviewing Trish (i.e., that the child appeared well until at least 5:00 that day) led her to conclude that Madison was injured "sometime between the time she was last noted to be well and before she was noted to be clearly abnormal." Dr. Leder explained that by "not well," she meant "problems breathing," being "floppy," "limp," and looking pale.
On February 6, 2003, the jury convicted Villagarcia of all charges. Felonious assault and child endangerment resulting in serious physical harm, in violation of § 2919.22(B)(1), are both second-degree felonies; child endangerment resulting in serious physical harm, under § 2919.22(A), is a third-degree felony. On March 21, 2003, the trial court sentenced Villagarcia to seven years' imprisonment for each second-degree felony, and one four-year term for the third-degree felony, to be served concurrently.
Ohio Rev. Code Ann. § 2929.14(A)(2) states that "for a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years." For a third-degree felony, "the prison term shall be one, two, three, four, or five years." Ohio Rev. Code Ann. § 2929.14(A)(3). The statute further provides that if the offender previously has not served a prison term,*fn4 the "court shall impose the shortest prison term authorized for the offense . . . unless the 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." Ohio Rev. Code Ann. § 2919.14(B) (2003) (emphasis added). When Villagarcia was first sentenced, the trial court made no supplemental finding regarding the adequacy of a two-year sentence, notwithstanding that it imposed seven-year sentences.
Villagarcia challenged his sentence in a direct appeal, arguing that the trial court had failed to make the requisite findings before imposing a sentence over two years. The Ohio Court of Appeals agreed, and remanded for resentencing after finding that the "trial court erred when it sentenced [Villagarcia] by failing to make required statutory findings." On September 17, 2004, the trial court resentenced Villagarcia to the same seven-year sentences after stating that a minimum sentence would demean the seriousness of the offense.
One year later, on September 15, 2005, Villagarcia filed a pro se motion for leave to file a delayed appeal. Villagarcia asserted that he was not informed of his right to appeal his sentences, and that his sentences deprived him of his "Sixth Amendment right to have a jury determine the necessary elements for the court to impose more than the minimum prison term." The Ohio Court of Appeals denied Villagarcia's motion on October 27, 2005, finding that he had not provided "sufficient justification for [his] failure to perfect a timely appeal," and that his sentences did not violate the Supreme ...