Benvenuto v. Turner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

:

JAMES BENVENUTO, : CASE NO. 3:19-cv-02353

:

Petitioner, : ORDER

: [Resolving Doc. 24]

v. :

:

WARDEN NEIL TURNER, :

:

Respondent. :

:

JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:

In 2017, Ohio inmate James Benvenuto pleaded no contest to charges related to

Benvenuto’s illegal marijuana dispensary. Benvenuto operated a drive-through marijuana

operation dealing in sequential small marijuana sales. Although Benvenuto dealt in small-

quantity sales, an Ohio common-pleas court ran the large multiple fifth-degree-felony

sentences consecutive and gave sentences totaling 34 years’ incarceration.

Now, Benvenuto asks this Court for a writ of habeas corpus under 28 U.S.C. § 2254

and says that the Ohio proceedings violated his federal rights in four ways. First, Benvenuto

says the Ohio court violated the Double Jeopardy Clause when it failed to merge certain

offenses. Second, Benvenuto says that insufficient evidence supported his RICO conviction.

Third, Benvenuto says his 34-year sentence amounts to cruel and unusual punishment and

violates his federal due-process rights. Finally, Benvenuto asks this Court to review the state

court’s decision not to suppress evidence from a warrantless search.

Magistrate Judge Armstrong issued a Report and Recommendation that recommended

either dismissing or denying each of Benvenuto’s claims.1 Benvenuto timely objected.2

For reasons fully explained below, the Court CONDITIONALLY GRANTS a writ of

habeas corpus. Benvenuto may apply for release unless Ohio properly resentences

Benvenuto under the Double Jeopardy Clause within 120 days. Next, the Court DENIES

Benvenuto’s insufficient-evidence claim. The Court DISMISSES without prejudice

Benvenuto’s disproportionate-sentencing claim so that Benvenuto can properly re-exhaust

any newly available state-court remedies. And the Court DISMISSES with prejudice

Benvenuto’s suppression claim.

I. Legal Standard

AEDPA allows federal courts to grant relief for “extreme” constitutional

“malfunctions” in a petitioner's state criminal proceedings.3 “[I]t is not the province of a

federal habeas court to re-examine state-court determinations on state-law questions.”4

AEDPA also gives state courts a chance to consider whether the state violated federal

rights before an inmate may petition for federal habeas relief.5 So, before this Court may

consider Benvenuto’s claims, Benvenuto must show that he has already exhausted his Ohio

remedies by “fairly present[ing] his claim in each appropriate state court,” “including a state

supreme court with powers of discretionary review.”6

A federal habeas corpus petition is not a “substitute for ordinary error correction

1 Doc. 21.

2 Doc. 24. The State argues that Benvenuto’s general objections related to the evidence-sufficiency and sentence-

proportionality recommendations do not merit this Court’s de novo review. Doc. 25. Even assuming the State is right,

the Court adopts the magistrate judge’s recommendation to deny Benvenuto’s evidence-sufficiency claim. Further, the

sentence-proportionality claim presents a threshold exhaustion issue, which the Court may raise sua sponte regardless of

any recommendation.

3 Brecht v. Abrahamson, 507 U.S. 619, 634 (1993).

4 Stewart v. Winn, 967 F.3d 534, 541 (6th Cir. 2020) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).

5 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam).

through appeal.”7 So, the Court cannot grant habeas relief unless the state court applied

federal law in an objectively unreasonable way.8

II. Discussion

On August 9, 2016, police arrested Benvenuto and found marijuana and hashish in

Benvenuto’s Ohio scrap yard. Police also discovered security footage showing dozens of

drug transactions between July 26 and August 9, 2016.9 Based on the footage and drugs

seized, the police suspected that Benvenuto had been operating an illegal drive-through

marijuana dispensary in the scrap yard.

A grand jury indicted Benvenuto for 53 fifth-degree-felony marijuana sales and one

third-degree-felony marijuana sale. The indictment further alleged three third-degree

felonies for possessing leaf marijuana, edible marijuana, and hashish. Finally, the indictment

alleged that Benvenuto had engaged in a pattern of corrupt activity (commonly, a “RICO”

charge), a first-degree felony.10 The RICO charge largely relied upon the marijuana-sales

operation as predicate background.

Benvenuto moved to suppress arguably illegally obtained evidence.11 Believing the

evidence should have been suppressed, Benvenuto sought to appeal the suppression motion

but the prosecutor insisted Benvenuto give up the suppression appeal in any guilty plea

agreement. To keep the right to appeal the suppression ruling, Benvenuto pled no-contest

and an Ohio common-pleas court accepted Benvenuto’s no-contest plea.12 At sentencing,

7 Harrington v. Richter, 562 U.S. 86, 102–03 (2011).

8 Williams v. Burt, 949 F.3d 966, 974 (6th Cir. 2020).

9 Doc. 6-2 at 36-37 (PageID 492-93).

10 Doc. 6-1 at 4 (PageID 78) (Indictment).

11 at 36 (PageID 110) (Order Denying Suppression).

the trial court decided that none of Benvenuto’s offenses merged under Ohio law.13 The trial

court found Benvenuto guilty on all counts and sentenced Benvenuto to a mixture of

concurrent and consecutive incarceration terms totaling 34 years.14

A. Double Jeopardy

First, Benvenuto says the trial court violated Benvenuto’s federal double-jeopardy

right by failing to merge Benvenuto’s third-degree-felony charges. The magistrate judge

recommends denying this ground as meritless. The Court agrees that the Double Jeopardy

Clause permits Benvenuto’s separate convictions for marijuana possession, marijuana

trafficking, and hashish possession.

But Benvenuto’s cumulative punishments for possessing edible and leaf marijuana

violate the Double Jeopardy clause. So, the Court partially sustains Benvenuto’s objection

on this ground.

The indictment alleged two third-degree-felony counts of violating Ohio’s marijuana-

possession provision.15 At sentencing, the State explained that one count related to edible

marijuana and the other count related to leaf marijuana.16 Law enforcement found the

marijuana giving rise to both counts at the scrap yard during the August 9 search.17 The trial

court found that no counts merged and sentenced Benvenuto to consecutive three-year

sentences for the edible- and leaf-marijuana-possession counts.18

On direct appeal, Ohio’s Fifth District Court of Appeals affirmed. The appeals court

said that it was “unable to conduct a merger analysis … in part because of the limited record

13 at 240 (PageID 696).

14 at 196, 245 (PageID 652, 701).

15 Doc. 6-1 at 19–20 (PageID 93–94).

16 Doc. 6-2 at 216–20. (PageID 672–76)

17

… .”19 The appeals court also noted that Benvenuto’s trial counsel had not raised any merger

objection.20

By affirming Benvenuto’s sentence, the appeals court unreasonably applied clearly

established federal law.

Under the Double Jeopardy Clause, a defendant may not be convicted twice for the

same offense.21 Ordinarily, double-jeopardy questions arise when multiple statutory

provisions punish the same conduct. “[W]here the same act or transaction” violates more

than one statutory provision, a defendant may be convicted of counts under each provision

if “each provision requires proof of a fact which the other does not.”22 Ultimately, the

double-jeopardy inquiry asks whether the legislature has authorized cumulative punishments

for the same conduct.23

Both of Benvenuto’s marijuana-possession counts arose out of the same conduct—

possessing marijuana on August 9, 2016, at the scrap yard. So, Benvenuto may be convicted

of both counts only if the Ohio legislature authorizes cumulative punishments for edible and

leaf marijuana. It does not.

Instead, Ohio provides only one punishment for each occasion on which a defendant

knowingly possessed “marihuana or a compound, mixture, preparation, or substance

containing marihuana … .”24 Because Ohio’s legislature has not authorized cumulative

19 State v. Benvenuto, 3rd Dist. Allen No. 1-17-39, 2018-Ohio-2242 ¶ 43. The appeals court did not give any examples of

what facts, if present, would have allowed the court to conduct the merger analysis.

20

21 U.S. CONST. AMEND. V, cl. 2.

22 Missouri v. Hunter, 459 U.S. 359, 366 (1983) (quoting Blockburger v. United States, 284 U.S. 299 (1932)).

Gamble v. United States, 139 S. Ct. 1960, 1980 (2019) (“[A]n ‘offence’ for double jeopardy purposes is defined by statutory

elements, not by what might be described in a looser sense as a unit of criminal conduct.”).

23 , 459 U.S. at 366. (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause

does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”).

punishments when a defendant simultaneously possesses both edible and leaf marijuana,

Benvenuto’s separate punishments for the marijuana-possession counts violate the Double

Jeopardy Clause.

Conversely, Ohio’s legislature has authorized cumulative punishment for marijuana

and hashish possession. Ohio law typically defines “marihuana” to include hashish, a

concentrated resin made from cannabis plants.25 But Ohio exempts hashish from its criminal

marijuana-possession provision and instead prohibits hashish possession under a separate

provision.26 To obtain a conviction under the hashish-possession provision, the State must

prove that the defendant knowingly possessed hashish, rather than any other form of

marijuana. So, a defendant may properly be convicted under the Double Jeopardy Clause

for simultaneous marijuana and hashish possession.

Similarly, Ohio’s drug-trafficking provision requires the State to prove that the

defendant “distribute[d]” the drug.27 The drug-possession provision does not. So, the Double

Jeopardy Clause does not prohibit separate punishments for the possession and trafficking

counts.28

Because the Double Jeopardy Clause required the state court to merge Benvenuto’s

third-degree marijuana-possession charges, the Court sustains this objection and

conditionally grants a writ of habeas corpus. If Ohio does not resentence Benvenuto

consistent with the Double Jeopardy Clause within 120 days, Benvenuto may apply for

25 R.C. § 3719.01(M) (“Marihuana means all parts of a plant of the genus cannabis,” including “

; … .” (emphasis added)); R.C. § 2925.01(Z) (“‘Hashish’ means a resin or a preparation

of a resin … derived from any part of the plant of the genus cannabis … .”).

26 R.C. § 2925.11(C)(7) (hashish provision), R.C. § 2925.11(C)(3) (marijuana provision); R.C.

§ 2925.01(AA) (“’Marihuana’ has the same meaning as in [Ohio’s healthcare laws], except that it does not include

hashish.”).

27 R.C. § 2925.03.

28 Albernaz v. United States, 450 U.S. 333 (1981) (“[A] conspiratorial agreement which envisages both the importation

release.

B. Evidence Sufficiency

Next, Benvenuto argues that the state court unreasonably decided that sufficient

evidence supported the RICO conviction. The Court disagrees and overrules Benvenuto’s

objection.

To evaluate an evidentiary sufficiency claim, federal habeas courts examine whether

“any rational trier of fact could have found the defendant guilty after resolving all disputes in

favor of the prosecution.”29 But even when a habeas court “conclude[s] that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable doubt, … [it] must still

defer to the state appellate court's sufficiency determination as long as it is not

unreasonable.”30

In Ohio, when a defendant pleads no contest, he admits to every fact alleged in the

indictment.31

Ohio’s RICO provision requires the state to prove that a defendant committed two or

more predicate acts. The predicate acts cannot be “so closely related to each other and

connected in time and place that they constitute a single event.”32

According to Benvenuto, the trial court decided that Benvenuto’s marijuana-

possession counts, hashish-possession count, and third-degree marijuana-trafficking count

sustained the RICO charge. But each of those counts arose at the same time and place. So,

Benvenuto says, the acts are too closely related to sustain a RICO conviction.

If the indictment contained only those four counts, Benvenuto might have a point.

29Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

30

31 OHIO CRIM. R. 11(B)(2).

Unfortunately for Benvenuto, each of the indictment’s 53 fifth-degree drug-trafficking

counts also qualifies as a predicate offense under Ohio law.33 Indeed, the Ohio Court of

Appeals affirmed the RICO conviction because “the indictment contains sufficient facts to

establish a pattern of corrupt activity spanning across multiple dates.”34

Because the appeals court’s decision was reasonable, the Court overrules Benvenuto’s

objection and adopts the recommendation to deny this ground on the merits.

C. Sentence Proportionality

Next, Benvenuto argues that the 34-year aggregate sentence is so disproportionate to

his crimes that the sentence amounts to cruel-and-unusual punishment under the Eighth

Amendment. Benvenuto further claims that the trial court imposed a lengthy sentence

because Benvenuto chose to preserve the right to appeal the trial court’s unfavorable

suppression decision. According to Benvenuto, any punishment for preserving the issue for

appeal violates his due-process rights under the Fourteenth Amendment.

The magistrate judge recommends denying this ground for relief on the merits. But

because Benvenuto must exhaust newly available state remedies before this Court may

consider Benvenuto’s federal claims, the Court dismisses this ground for relief without

prejudice. Benvenuto can, and must, renew this claim to the Ohio courts to exhaust the

claim.

Newly available state remedies generally require a petitioner to re-exhaust state

proceedings before a federal habeas court may consider any federal claim.35 When a

“constitutional claim arises from the alleged deprivation by state courts of rights created

33 R.C. § 2923.31(I)(2)(c) (noting that any violation of the drug-trafficking statute (R.C. § 2925.03) counts as a predicate

offense).

34 State v. Benvenuto, 3rd Dist. Allen No. 1-17-39, 2018-Ohio-2242 ¶ 34.

under state law” and the state’s interpretation of the state right changes after the petitioner

files for federal relief, “the proper course for the district court is to remand the case to the

state system.”36

Benvenuto sought both direct-appellate and postconviction relief in Ohio courts. On

October 26, 2021, when the Ohio Supreme Court declined jurisdiction over Benvenuto’s

state postconviction appeal,37 Benvenuto had exhausted his then-available state remedies.

But in December 2022, the Ohio Supreme Court issued a decision that calls

Benvenuto’s aggregate sentence into question under Ohio law. clarified

that under the Ohio consecutive-sentencing law, a trial court cannot impose consecutive

sentences unless it first considers the aggregate sentence’s proportionality to the defendant’s

crime.39 Further, clarified that Ohio appeals courts must consider any consecutive-

sentencing decision de novo and vacate any consecutive-sentencing decision that the record

clearly and convincingly rebuts.40

The state record suggests that neither the trial court’s nor the appeals court’s decision

complied with the consecutive-sentencing statute as construed in . At sentencing,

the trial court did not mention the 34-year aggregate total at all, much less examine a 34-

year sentence’s proportionality.41 And on appeal, the panel did not review the consecutive-

sentencing decision de novo. Instead, the appeals court asked only whether the trial court

made “seriousness findings” required to impose a greater-than-minimum sentence for any

36 Drennon v. Hess, 642 F.2d 1204 (10th Cir. 1981) (quoting Mabry v. Klimas, 448 U.S. 444 (1980)).

37 State v. Benvenuto, 175 N.E.3d 571 (Ohio 2021) (table).

38 2022-Ohio-4607.

39 ¶ 12.

40

41 Doc. 6-2 at 205–50 (PageID 661–706). Although the trial court briefly found that Benvenuto qualified for some

one count.42

Of course, federal habeas courts cannot grant relief based on any potential state-law

errors. But Benvenuto’s constitutional challenge to his sentence’s motive and proportionality

arises from Ohio’s purported failure to comply with its own consecutive-sentencing laws.

Now that the Ohio Supreme Court has clarified Ohio’s sentencing law’s proper

interpretation, federalism and comity require this Court to allow Ohio the first chance to

correct any proportionality errors in Benvenuto’s sentence.43

So, the Court dismisses this ground for relief without prejudice. Benvenuto may refile

any remaining federal proportionality claims after making arguments in state courts.

D. Suppression

Last, Benvenuto challenges the trial court’s decision not to suppress evidence found

at the scrap yard. Benvenuto says that officers did not obtain a search warrant before

searching the scrap yard and that no exigent circumstances justified a warrantless search.

The magistrate judge recommends that because federal habeas courts cannot

reexamine state suppression claims, the should Court dismiss this claim. The Court agrees.

Federal courts generally may not grant habeas relief because a state court admitted

evidence that should have been suppressed under the exclusionary rule.44 A narrow

exception exists, however, if the state did not provide “an available avenue … to present [a

42 State v. Benvenuto, 3rd Dist. Allen No. 1-17-39, 2018-Ohio-2242 ¶ 51. Soon after the Third District’s decision, the Ohio

Supreme Court rejected the same analysis in a 2019 opinion. State v. Gwynne, 141 N.E.3d 169, 173 (Ohio

2019) (holding that a challenge to consecutive sentences’ aggregate length required “an analysis entirely different from” the

statutory seriousness findings).

43 Whether Benvenuto will likely prevail in Ohio courts does not excuse exhaustion. Engle v. Isaac, 456 U.S. 107

(1982) (“[A petitioner] may not bypass the state courts simply because he thinks they will be unsympathetic to the claim.

Even a state court that has previously rejected a constitutional argument may decide, upon further reflection, that the

contention is valid.”).

44 Stone v. Powell 428 U.S. 465, 489–95 (1976) (deciding that the exclusionary rule’s deterrence rationale

suppression] claim to the state courts.” 45 But federal habeas courts cannot make “an inquiry

into the adequacy of the procedure actually used to resolve that particular claim.”46

Here, Ohio’s courts allowed Benvenuto to move to suppress the evidence from the

search. Ohio also allowed Benvenuto to appeal the trial court’s decision denying that

motion. Benvenuto’s claim therefore challenges only Ohio’s procedure’s adequacy—which

this Court may not review.47

III. Conclusion

For the foregoing reasons, the Court CONDITIONALLY GRANTS a writ of habeas

corpus. Benvenuto may apply for release unless Ohio properly resentences Benvenuto

under the Double Jeopardy Clause within 120 days. Next, the Court DENIES Benvenuto’s

insufficient-evidence claim. The Court DISMISSES without prejudice Benvenuto’s

disproportionate-sentencing claim so that Benvenuto can properly re-exhaust any state-court

remedies. And the Court DISMISSES with prejudice Benvenuto’s suppression claim.

Finally, the Court certifies, under 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be taken in good faith, and no basis exists upon which to issue a certificate

of appealability.48

IT IS SO ORDERED.

Dated: March 30, 2023

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

45 Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013).

46

47 at 640.