Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 07-00520-Sandra S. Beckwith, District Judge.
The opinion of the court was delivered by: Siler, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Submitted: March 10, 2010
Before: MARTIN, SILER, and MOORE, Circuit Judges.
On his convictions for possession with intent to distribute controlled substances, Ryan Hooks was sentenced to greater than minimum consecutive terms under Ohio law because he had served a prior prison term and the court concluded that the minimum sentence was insufficient. At the time, Ohio's sentencing law permitted the imposition of consecutive sentences only if the court made other factual findings. In State v. Foster, 845 N.E.2d 470 (Ohio 2006), the Ohio Supreme Court held that the sentencing provisions allowing for an increased sentence based on judicial fact finding were unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). It corrected the problem by construing Ohio's sentencing provisions as advisory and providing trial courts with discretion to sentence anywhere between the statutory minimum and maximum. The appellate court remanded Hooks's case for re-sentencing in light of Foster. Hooks was re-sentenced to the same time and sought habeas corpus relief because he claimed being re-sentenced post-Foster violated his rights under the Due Process and Ex Post Facto Clauses of the United States Constitution. For the following reasons, we AFFIRM.
In 2003, Hooks was charged with possessing a controlled substance in a two-count information, No. CR03-08-1232, with an additional count of possessing a controlled substance in a separate one-count information, No. CR03-08-1278, and in another one-count information, with possessing a controlled substance, No. CR03-10-1504. He pleaded guilty to all four charges.
He was sentenced in 2004, pursuant to the version of the Ohio Sentencing Code in effect at that time. Specifically, the Code required the trial judge to make specific factual findings to sentence offenders above the statutory minimum or to sentence an offender to consecutive rather than concurrent sentences. See ORC § 2929.14(B)("[T]he court shall impose the shortest prison term authorized for the offense . . . unless [t]he offender was serving a prison term at the time of the offense, or the offender previously had served a prison term[; or] [t]he 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."); ORC § 2929.14(E)(4) ("[T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following [listed facts].").
The trial court found that Hooks had previously served a prison term and that "[c]onsecutive sentences are necessary to protect the public from future crime or to punish the defendant and not disproportionate to the seriousness of the defendant's conduct and the danger the defendant poses to the public." It also found that "[t]he defendant's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant."
In No. CR03-08-1232, the court sentenced Hooks to six years' imprisonment on count one and four years' imprisonment on count two, to run concurrently with each other. It ordered that those sentences run consecutively to a previously-imposed sentence from No. CR03-07-0944. It sentenced him to three years' imprisonment in No. CR03-08-1278, with this sentence to run consecutively to the sentences imposed in both No. CR03-07-0944 and No. CR03-08-1232. Finally, it sentenced him to eleven months' imprisonment in No. CR03-10-1504, with this sentence to run consecutively to the sentences in Nos. CR03-07-0944, CR03-08-1232, and CR03-08-1278.
On appeal,*fn1 Hooks argued that the Ohio law under which he was sentenced was unconstitutional in light of Blakely v. Washington, 542 U.S. 296 (2004). While his appeal was pending, the Ohio Supreme Court issued its decision in State v. Foster, 845 N.E.2d 470 (Ohio 2006), in which it held that some provisions of Ohio's sentencing code were unconstitutional in light of Blakely, because they required the judge to engage in fact-finding before imposing a sentence greater than the maximum term authorized by a jury verdict or the defendant's admissions. Id. at 477-79, 494. As a remedy, the Foster court severed the unconstitutional provisions of Ohio's sentencing code, making those provisions advisory and allowing trial courts full discretion to sentence within the statutory range or impose consecutive sentences without engaging in any judicial fact-finding. Id. at 494-99. In light of Foster, the Ohio Court of Appeals sustained Hooks's Blakely claims, reversed the trial court's judgment, and remanded his case for re-sentencing consistent with Foster.
Hooks filed a motion for reconsideration, arguing that although the case should be remanded "in light of Blakely, . . . [r]emanding in light of Foster violates the Ex Post Facto and Due Process Clauses of the United States Constitution and directly contravenes Foster." The Ohio Court of Appeals denied the motion for reconsideration, and Hooks sought leave to appeal to the Ohio Supreme Court. The Ohio Supreme Court ultimately denied this request and summarily dismissed the appeal "as not involving any substantial constitutional issue." Following a hearing before the trial court, Hooks was re-sentenced to the same terms of imprisonment as previously imposed.
Hooks then filed a habeas corpus petition in the United States District Court for the Southern District of Ohio alleging that he "was sentenced by the State of Ohio to non-minimum, consecutive sentences in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution," and that the Ohio Supreme Court's decision in Foster to sever the unconstitutional "portions of Ohio's statutes that mandated minimum, concurrent sentences violated the Due ...