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Russell v. Bunting

United States District Court, S.D. Ohio, Western Division, Dayton

July 27, 2018

JAMES A. RUSSELL, Petitioner,
v.
JASON BUNTING, Warden, Warren Correctional Institution Respondent.

          Thomas M. Rose District Judge

          SUBSTITUTED REPORT AND RECOMMENDATIONS ON REMAND

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court on remand from the Sixth Circuit Court of Appeals. Russell v. Bunting, 722 Fed. App'x 539, 2018 U.S. App. LEXIS 3920 (6th Cir. Feb. 20, 2018).

         The victim in this case had made an appointment for sex with Candace Hargrove, a prostitute who was Petitioner Russell's girlfriend. Hargrove and Russell decided to rob the victim instead. When Russell went with a gun to accomplish that end, he shot and killed the victim. Russell was tried, convicted, and sentenced for aggravated robbery and felony murder. He claims he received ineffective assistance of appellate counsel when his attorney on his third appeal[1]omitted as an assignment of error that the trial court erred when it failed to merge those counts for sentencing purposes. The Second District Court of Appeals found this claim was barred by the law of the case from a prior appeal and this Court dismissed the claim as procedurally defaulted. The Sixth Circuit found the Second District had misapplied Ohio law of the case doctrine, set aside the procedural default finding, and remanded for a decision on the merits of Ground Five. Russell, supra, at *550-52.

         The Magistrate Judge then recommended that the Court dismiss the ineffective assistance of appellate counsel claim (Ground Five) on the merits because Russell suffered no prejudice from his counsel's failure to make the omitted argument (Report, ECF No. 43, PageID 2800). Petitioner objected (ECF No. 46), Judge Rose recommitted the case for reconsideration in light of the Petitioner's Objections (ECF No. 47), and the Warden has responded to Petitioner's Objections (ECF No. 48).

         Analysis

         The relevant standard for judging an ineffective assistance of counsel claim is that provided by Strickland v. Washington, 466 U.S. 668 (1984). Essentially a complaining habeas applicant must show that his attorney performed deficiently and that he was prejudiced by that deficient performance. Because Russell's claim is ineffective assistance of appellate counsel, his remedy if he were successful in habeas would be a new appeal to the Ohio Second District Court of Appeals in which that court would have to decide whether the aggravated robbery and felony murder convictions should merge under Ohio Revised Code § 2941.25, Ohio's allied offenses statute.

         When the merger argument was first before them, the Second District denied it, applying the then-controlling precedent, State v. Rance, 85 Ohio St.3d 632 (1999). State v. Russell, 2010-Ohio-4765, 2010 WL 3835645 (2nd Dist. Oct. 1, 2010). When the claim came back to them in 2012 as an omitted assignment of error on an Ohio R. App. P. 26(B) application, they rejected it on the law of the case grounds which were in turn rejected by the Sixth Circuit.

         At the time Russell's third appeal was before the Second District, the controlling precedent for applying Ohio Revised Code § 2941.25 was State v. Johnson, 128 Ohio St.3d 153 (2010). The Second District has recognized that its rationale in rejecting Russell's merger argument was overruled by Johnson. State v. McGail, 2015-Ohio-5384, 55 N.E.2d 513 (2nd Dist. 2015), appellate jurisdiction declined, 145 Ohio St.3d 1460 (2016). Noting McGail, the Sixth Circuit expanded the certificate of appealability to include this issue, finding that “there is a strong possibility that the Ohio Court of Appeals would have merged Russell's aggravated robbery and felony murder convictions if Russell's counsel had re-raised the merger argument[;] reasonable jurists could debate whether Russell's counsel was ineffective for failing to do so.” Russell v. Bunting, No. 16-4022 (6th Cir. May 30, 2017)(unreported; copy at ECF No. 34, PageID 2717).

         Without expressly holding that failure to cite Johnson in support of a merger argument was deficient performance, the Report concedes, “[i]t is possible that in 2010 without the benefit of Ruff and Earley, [2] the Second District would have applied only the Johnson course-of-conduct test and under that test Russell does well.” (ECF No. 43, PageID 2799.) This statement essentially assumes arguendo the deficient performance prong of Strickland.

         The Report then proceeded to analyze the prejudice prong of Strickland and found there was no prejudice because “Johnson has not remained the law.” Id. at PageID 2799-800. As Respondent has asserted, Russell is not entitled to the benefit of Johnson “without consideration of the law that has intervened since 2010.” Id. at 2800, relying on Lockhart v. Fretwell, 506 U.S. 364 (1993).

         Petitioner does not dispute the principle underlying Lockhart, but claims he would be entitled to merger of his aggravated robbery and felony murder convictions under the post-Johnson law in Ohio. He relies on State v. Ruff, 2015-Ohio-3367 (1st Dist. Aug. 21, 2015). In that case the defendant had broken into the homes of three different women and raped them. On Ruff's first appeal, the First District had merged each aggravated burglary with the associated rape conviction. The Supreme Court of Ohio reversed and remanded for the First District to consider whether aggravated burglary and rape were offenses of similar import. State v. Ruff, 143 Ohio St.3d 114 (2015). In the course of reaching its conclusion, the Supreme Court had held generally:

Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.

Id. at paragraph three of the syllabus. In a divided opinion, the First District held the offenses met the “similar import” requirement because the harm that elevated the burglary offenses to aggravated burglary was the same harm the victims suffered in being raped. Judge Stautberg in dissent reasoned that the harm involved in an aggravated burglary was directed to the property trespassed upon and a person could not be convicted twice of aggravated burglary if the structure was occupied by multiple persons. “Rape, by contrast, is a personal crime.” Id. at ΒΆ 32. The Ohio Supreme Court declined ...


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