United States District Court, S.D. Ohio, Western Division, Dayton
JAMES A. RUSSELL, Petitioner,
JASON BUNTING, Warden, Warren Correctional Institution Respondent.
M. Rose District Judge
SUBSTITUTED REPORT AND RECOMMENDATIONS ON
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
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).
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 appealomitted 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.
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
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.
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
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).
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,
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.
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).
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 ¶ 32. The Ohio Supreme Court declined ...