Patterson v. Eppinger

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRANDON C. PATTERSON, CASE NO. 5:21-cv-777

Petitioner, DISTRICT JUDGE

JACK ZOUHARY

vs.

MAGISTRATE JUDGE

WARDEN LASHANN EPPINGER,1 JAMES E. GRIMES JR.

Respondent.

REPORT &

RECOMMENDATION

Pro se Petitioner Brandon C. Patterson filed a Petition for a Writ of

Habeas Corpus under 28 U.S.C. § 2254. Doc. 1. When he filed his Petition,

Patterson was in custody at the Trumbull Correctional Institution due to a

journal entry of sentence in the case State v. Patterson, Stark County Court of

Common Pleas, Case No. 2009CR0136. This matter has been referred to a

Magistrate Judge under Local Rule 72.2 for the preparation of a Report and

Recommendation. For the following reasons, I recommend that the Petition be

denied.

1 When Patterson filed his Petition, he was housed at the Trumbull

Correctional Institution and named Warden LaShann Eppinger as the

Respondent. After he filed his Petition, Patterson was moved to the Allen

Correctional Institution. Doc. 4. And in May 2022, Patterson filed a Notice of

Change of Address and listed a private address. Doc. 11.

Summary of facts

In habeas corpus proceedings brought by a person under 28 U.S.C. §

2254, factual determinations made by state courts are presumed correct. 28

U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that

presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d

439, 447 (6th Cir. 2012).

The Ohio Court of Appeals for the Fifth Appellate District summarized

the facts underlying Patterson’s conviction as follows:

{¶1} On March 11, 2009, the Stark County Grand

Jury indicted appellant, Brandon Patterson, on one

count of attempted murder in violation of R.C.

2923.02(A) and 2903.02(B) with a firearm

specification, two counts of felonious assault in

violation of R.C. 2903.11 with a firearm

specification, and one count of having a weapon

while under a disability in violation of R.C. 2923.13.

Said charges arose from an altercation at a party

wherein Dominic Maddox was grazed by a bullet and

Arthur Alston was shot.

***

{¶21} It is uncontested that during the party, Mr.

Alston was shot in the back and was seriously

injured resulting in paralysis, and Mr. Maddox was

grazed by a bullet resulting in wounds and scars. T.

at 138, 140, 188-189, 197. Both men were shot at the

same time by the same person.

{¶22} Canton Police Detective Victor George

interviewed the witnesses and determined a

partygoer, Benjamin Blackwell, was not intoxicated,

but the party host, Zachary Graham, was. T. at 325-

326.

{¶23} The incident began at a party at Mr. Graham’s

residence where Mr. Maddox and Mr. Alston, along

with another individual, Justin Flinger, arrived

after midnight. T. at 133-134, 179. All three

individuals were African-Americans, and the party

was predominately young, Caucasian adults. T. at

134, 210, 212. Everyone became aware of a

commotion in the kitchen and all went to the kitchen

to see what was happening. T. at 136, 184, 212, 243.

Mr. Blackwell testified the kitchen was “full to its

capacity of people,” and he observed Mr. Alston

involved in a disturbance with appellant. T. at 244,

246-247. An attempt was made to break up the

disturbance. T. at 137, 186, 213. Thereafter, shots

rang out and Mr. Alston was shot in the back and

fell to the floor and Mr. Maddox was grazed by a

bullet. T. at 138, 188. Of all the witnesses that

testified, no one but Mr. Blackwell saw who the

shooter was, and he identified appellant as the

shooter. T. at 248, 256; State’s Exhibit 1. Mr.

Blackwell testified he observed appellant with a

revolver, saw him pull it out, and shoot Mr. Alston.

T. at 246-250. Mr. Blackwell stated he was within

two feet of appellant, “I could have reached out and

touched the gun.” T at 250. Mr. Alston and Mr.

Maddox identified appellant via a photo array as the

person who had the firearm in the kitchen. T. at 142,

154-155, 199-200.

State v. Patterson, No. 2009CA00142, 2010 WL 2595181, at *1, 2 (Ohio Ct. App.

June 28, 2010).

Procedural background

1. Trial court proceedings

In February 2009, the Stark County Grand Jury issued an indictment

charging Patterson with count one, attempted murder of Alston; count two,

felonious assault of Alston; and count three, felonious assault of Maddox, all

with firearm specifications. Doc. 5-1, at 9–11 (Exhibit 1). The grand jury also

indicted Patterson on count four, having a weapon under a disability. Id.

Patterson, through counsel, pleaded not guilty. Id. at 12 (Exhibit 2).

The case proceeded to trial. In May 2009, a jury found Patterson guilty

as charged. Doc. 5-1, at 13 (Exhibit 2). At sentencing, the trial court sentenced

Patterson to ten years in prison on count one and three years for the attendant

firearm specification, to run consecutively. Doc. 5-1, at 17; Doc. 5-2, at 465

(sentencing transcript). The court stated that Patterson was to serve three

years on count two and three years for the attendant firearm specification, to

run concurrent to the sentence in count one, and then merged count two with

count one. Doc. 5-2, at 465; Doc. 5-1, at 16. The court sentenced Patterson to

three years on count three and three years for the attendant firearm

specification, to run consecutively. Doc. 5-1, at 17. And the court sentenced

Patterson to one year on count four. Id. The sentences on counts one, three,

and four were to run consecutively for a total of 20 years in prison. Id. at 18.

2. Direct appeal

Patterson, through new counsel, appealed to the Ohio Court of Appeals

for the Fifth Appellate District. Doc. 5-1, at 20 (Exhibit 4). In his brief, he raised

the following assignments of error:

1. The trial court’s finding of guilt is against the

manifest weight and sufficiency of the evidence.

2. Appellant was denied his rights to due process and

of assistance of counsel because his trial counsel

provided ineffective assistance.

3. The trial court erred in failing to suppress the

unnecessarily suggestive photograph identification

line up.

4. The trial court erred in failing to grant a mistrial

sua sponte when testimony was presented in

violation of the Appellant’s Fifth Amendment rights.

Doc. 5-1, at 22. In June 2010, the Ohio court of appeals affirmed the trial court’s

judgment. Id. at 97–109 (Exhibit 7).

In August 2010, Patterson appealed to the Ohio Supreme Court. Doc. 5-

1, at 111 (Exhibits 8). In his memorandum in support of jurisdiction, Patterson

set forth the following proposition of law:

When the performance of trial counsel is deficient

and the defendant is prejudiced thereby, the

defendant is denied the right to effective assistance

of counsel. 6th & 14th Amendments, U.S. Const.2

Doc. 5-1, at 115 (Exhibit 9). In October 2010, the Ohio Supreme Court denied

Patterson leave to appeal and dismissed his appeal as not involving any

substantial constitutional question. Id. at 136 (Exhibit 10).

3. First federal habeas petition

In May 2011, Patterson filed a pro se federal habeas corpus petition

under 28 U.S.C. § 2254 and raised the following grounds for relief:

Ground one: Denied the right to effective

assistance of counsil.

Ground two: Trial court erred in failing to suppress

the unecessarily suggestive photograph

identification line-up.

2 In this report and recommendation, I’ve reproduced Patterson’s

assignments of error and grounds for relief as written.

Ground three: Trial court erred in failing to grant

a mistrial sua sponte when testimony was presented

in violation of the appelant’s Fifth Amendment

rights.

Ground four: Trial court’s finding of guilt is

against the manifest weight and sufficiency of the

evidence.

Doc. 5-1, at 141–45 (Exhibit 11). In February 2012, the District Court denied

Patterson’s petition because the first ground lacked merit and the remaining

grounds were procedurally defaulted. Id. at 153–158 (Exhibit 12).

4. Motion to correct sentence

In October 2014, Patterson filed under Ohio Criminal Rule 36 an

“Application on motion for a correction of sentence order and termination

order.” Doc. 5-1, at 159 (Exhibit 13). Patterson raised the following issues:

1. Whether imposition of felony sanctions for

individual criminal offenses are mandatory?

2. Whether individual sanctions invalidates journal

entries failure to state sequence of execution of

punishments and penalties?

Doc. 5-1, at 161. In November 2014, the trial court overruled Patterson’s

motion. Doc. 5-1, at 172 (Exhibit 14).

In December 2014, Patterson appealed to the Ohio Court of Appeals for

the Fifth Appellate District. Doc. 5-1, at 173 (Exhibit 15). In his brief, Patterson

raised two assignments of error:

1. Trial court violated defendants right to U.S.

Amend. 5th, 6th, & 14th, & Oh. Const. Art. 1, § 10 &

16, when it failed to correct the absence of statutory

mandated sanctions & the improper “sentencing

package” construction of journal entry.

2. Trial court violated defendants right to U.S.

Amend. 5th, 6th, & 14th, & OH. Const. Art. 1, § 10

& 16, when it failed to correct the ambiguous journal

entry.

Id. at 180 (Exhibit 16). The state filed a brief opposing Patterson’s assignments

of error. Id. at 197 (Exhibit 17). The state also advised that the case should be

remanded for resentencing to reflect that the five-year post-release control

portion of Patterson’s sentence was mandatory, not discretionary. Id. at 202

Patterson filed a reply brief. Id. at 223 (Exhibit 18). In May 2015, the Ohio

court of appeals denied Patterson’s assignments of error but remanded the case

to the trial court for resentencing “for the proper imposition of post-release

control.” Id. at 235 (Exhibit 19).

Patterson filed a motion for reconsideration, citing the Ohio Supreme

Court’s then-recent decision in State v. Nolan, 25 N.E.3d 1016 (Ohio 2014),

which held that attempted felony murder is not a cognizable crime. Doc. 5-1,

at 238 (Exhibit 20). Patterson argued that his conviction on count one,

attempted felony murder, therefore was “void, voidable, or a nullity.” Id. at

240. The Ohio court of appeals denied Patterson’s motion for reconsideration.

Id. at 248 (Exhibit 21).

In July 2015, Patterson appealed to the Ohio Supreme Court. Doc. 5-1,

at 249 (Exhibit 22). In his memorandum in support of jurisdiction, Patterson

set forth the following proposition of law:

Post-release Control is prohibited in operation of law

when the felony of conviction and sentence is not a

cognizable crime in Ohio under O.R.C. § 2903.02(B)

and R.C. 2923.02.

Issue presented: A firearm specification

imposed and completed to a void conviction/sentence

retain credit for time served pursuant to R.C. §

2967.191 as a matter of law.

Issue presented: A Court must apply law of

the Supreme Court of Ohio to applicable hearings for

purpose of Due Process of Law and Equal Protection

Under the Law, to prevent a miscarriage of justice.

Doc. 5-1, at 252 (Exhibit 23). In September 2015, the Ohio Supreme Court

declined under its rule of practice 7.08(B)(4) to accept jurisdiction of

Patterson’s appeal. Id. at 274 (Exhibit 24).

5. 2015 Resentencing

In May 2015, the trial court held a resentencing hearing to notify

Patterson that he was subject to a mandatory five-year term of post-release

control. Doc. 5-1, at 277 (Exhibit 25); Doc. 5-2, at 471. The trial court issued a

sentencing entry in June 2015 stating that count two “was merged into” count

three. Doc. 5-1, at 276.

In late June 2015, Patterson, pro se, appealed to the Ohio Court of

Appeals for the Fifth Appellate District. Doc. 5-1, at 279 (Exhibit 26). In his

brief, he raised the following assignments of error:

1. The trial court abused its discretion by reimposing

punishments, on a conviction and a sentence, to a

crime not cognizable in Ohio, warranting a vacatur

order.

2. The trial court lacked subject-matter jurisdiction

over the person, when postrelease control had

expired prior to reimposing a sanction and/or a

combination of sanctions, resulting in a void,

voidable, or nullity of a conviction and sentence.

3. The trial court abused its discretion when

vacating a prior judgment by leave of court, without

crediting jail-time credit and the credit for time

served, while awaiting re-sentencing as substantial

right.

Doc. 5-1, at 283–84 (Exhibit 27). The state filed an opposition brief and

Patterson replied. Id. at 310, 321 (Exhibits 28, 29). In October 2015, the Ohio

court of appeals overruled Patterson’s assignments of error, finding that they

were barred by the doctrine of res judicata “and the finality of appellate

judgments.” Id. at 335 (Exhibit 30).

In November 2015, Patterson appealed to the Ohio Supreme Court. Doc.

5-1, at 334 (Exhibit 31). In his memorandum in support of jurisdiction,

Patterson set forth the following propositions of law:

1. Did the trial court and appellate court error when

they maintained Appellant’s conviction and PRC for

an offense that is not cognizable in Ohio under

Supreme Court of Ohio’s decision in State v. Nolan?

2. Is post-release control prohibited in operation of

law when the felony of conviction and sentence is not

a cognizable crime in Ohio under R.C. 2923.02 (A) —

R.C. 2903.02(B)?

3. Did the trial court fail to satisfy the requirements

of R.C. 2929.14(C)(4), while at a May 27, 2015,

hearing, when the trial court simply adopted an

original sentence imposed on defendant in 2009, and

failed to address the mandatory issue of the

requirement to make the appropriate findings prior

to the imposition of consecutive sentences?

Id. at 341 (Exhibit 32). In January 2016, the Ohio Supreme Court declined

under its rule of practice 7.08(B)(4) to accept jurisdiction of Patterson’s appeal.

Id. at 374 (Exhibit 34). Patterson filed a motion for reconsideration, which the

Ohio Supreme Court denied. Id. at 375, 380 (Exhibits 35, 36).

6. Nunc pro tunc sentencing entries

In July 2017, the trial court issued two nunc pro tunc judgment entries

as to its May 2009 sentencing and June 2015 resentencing entries. Doc. 5-1, at

477 (Exhibit 38); 492 (Exhibit 39). The court’s sentence on count one and the

firearm specification remained the same. Id. at 480, 493. The court wrote that

Patterson was to serve three years on count two and that the firearm

specification on count two merged with the firearm specification on count one.

Id. at 480, 494. The court then wrote that the sentences in counts one and two

were to run concurrently. Id. at 481, 494. Patterson’s sentences on counts three

and four remained the same, as did Patterson’s total sentence of 20 years in

prison. Id. at 481, 494.

In August 2017, Patterson appealed to the Ohio Court of Appeals. Doc.

5-1, at 501 (Exhibit 40.) In his brief, Patterson raised the following assignment

of error:

The trial court erred when it issued a nunc pro tunc

entry that does not reflect the record for the original

journal entry for May 19, 2009, due to the trial court

making substantive changes that are in direct

disagreement with the Fifth District Court of

Appeals and is, in fact, a new judgment violating

Appellant’s substantial rights protected by Due

Process and Double Jeopardy Clause under the

United States Constitutions, Fifth and Fourteenth

Amendment and the Ohio Constitution Article One,

sections Ten and Sixteen.

Doc. 5-1, at 508 (Exhibit 41). The state filed a motion to dismiss, id. at 521

(Exhibit 42), and Patterson filed a reply, id. at 538 (Exhibit 43). The Ohio court

of appeals denied the state’s motion to dismiss. Id. at 546 (Exhibit 44).

The state then filed a brief opposing Patterson’s assignment of error.

Doc. 5-1, at 547 (Exhibit 45). In December 2017, the Ohio court of appeals

overruled Patterson’s assignment of error. Id. at 584 (Exhibits 55). Patterson

filed a motion for reconsideration, which the court denied. Id. at 595, 613

(Exhibits 57, 59).

In January 2018, Patterson appealed to the Ohio Supreme Court. Doc.

5-1, at 615 (Exhibit 60). In his memorandum in support of jurisdiction,

Patterson raised two propositions of law:

1. Does a trial court err to a defendant’s prejudice

when it issues a “nunc pro tunc” entry that does not

reflect what occurred in the proceeding, acting

without jurisdiction, and which makes substantive

changes to the judgment resulting in a violation of

the Due Process and Double Jeopardy Clauses of the

United States Constitution’s Fifth and Fourteenth

Amendments?

2. Does an appellate court err to the prejudice of an

appellant when it issues a judgment in conflict with

its prior judgment in violation of the law of the case

doctrine?

Doc. 5-1, at 618 (Exhibit 61). In May 2018, the Ohio Supreme Court declined

under its rule of practice 7.08(B)(4) to accept jurisdiction of Patterson’s appeal.

Id. at 701 (Exhibit 67). Patterson filed a motion for reconsideration, which the

Ohio Supreme Court denied. Id. at 697, 702 (Exhibits 68, 70).

7. Second federal habeas petition

In January 2017, Patterson filed a second federal habeas corpus petition

under 28 U.S.C. § 2254. Doc. 5-1, at 1092. He raised the following grounds for

relief:

Ground one: Petitioner was denied and deprived of

his rights to the Fourteenth Amendment section one

Due Process Clause and the Eighth Amendment

Clause against Cruel and Unusual Punishment

when the trial court re-sentenced petitioner to a ten

year term for statues R.C. 2903.02(B) and R.C.

2923.02(A), attempted felony murder and to the

offense specific three year term for the statute R.C.

2941.145, and to a mandatory five year term of

supervision pursuant to R.C. 2967.28, maintaining a

conviction and post release control for an offense

that is not a cognizable crime in Ohio under the

Supreme Court of Ohio decision in State v. Nolan,

141 Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E. 3d

1016.

Supporting facts: Petitioner was wrongfully

convicted of attempted felony murder which has

been determined by the Ohio Supreme Court as not

being a cognizable crime under Ohio law. Petitioner

underwent a re-sentencing, wherein the court was

asked to correct his obvious error but was denied.

Ground two: Petitioner was denied and deprived of

his rights to the Fourteenth Amendment Section

One Due Process Clause when the trial court

imposed a sentence that is unauthorized by law

when petitioner was re-sentenced.

Supporting facts: Petitioner underwent a re-

sentencing in which the trial court failed to make the

required findings before imposing consecutive

sentences.

Doc. 5-1, at 1096–97, 1105. In August 2019, the District Court dismissed

without prejudice Patterson’s petition as unexhausted. Id. at 1136.

8. State habeas corpus petition

Meanwhile, in July 2016, Patterson filed in the Ohio Court of Appeals

for the Eleventh Appellate District a state petition for a writ of habeas corpus

under Ohio Revised Code 2725.01. Doc. 5-1, at 381 (Exhibit 37). Patterson

challenged his conviction and sentence on count one based on the Ohio

Supreme Court’s decision in State v. Nolon. Id. at 391. In March 2019, the Ohio

court of appeals entered judgment in favor of Patterson and issued the writ.

Id. at 979 (Exhibit 100). The court explained that under State v. Nolon,

attempted felony murder is not a crime under Ohio law. Id. at 982. So the court

vacated Patterson’s conviction on count one for attempted felony murder and

the attendant firearm specification. Id. at 987. The court commented on the

trial court’s conflicting resentencing and nunc pro tunc entries; ordered the

trial court to resolve those issues; and, depending on its resolution, to

resentence Patterson on count two and the accompanying firearm

specification.

9. 2019 Resentencing

In April 2019, the trial court held a resentencing hearing. Doc. 5-1, at

734 (Exhibit 72); Doc. 5-2, at 474, 499 (transcript). The court sentenced

Patterson to four years in prison on count two and three years for the attendant

firearm specification, to run consecutively with each other and Patterson’s

remaining sentences on counts three and four, for a total of 14 years in prison.

Doc. 5-1, at 736–37.

In July 2019, Patterson appealed to the Ohio Court of Appeals for the

Fifth Appellate District. Doc. 5-1, at 818 (Exhibit 85). In his brief, he raised the

following assignments of error:

1. Did the trial court exceed its jurisdiction by

conducting a de novo resentencing hearing on Count

Two, felonious assault, pursuant to

R.C.2903.11(A)(1) and/or (A)(2)?

2. Did the trial court impose a sentence contrary to

law by improperly employing the sentencing

package doctrine in violation of the U.S. Const.

Amend. V and XIV, Art. I, § 1, and the Oh. Const. V

and XVI, and R.C.2953.08?

3. Did the trial court violate the Defendant’s right

to due process when the original judge resentenced

the Defendant to a presumptively vindictive, Pearce,

395 U.S. 711, 726, harsher sentence [on Count Two]

with no objective information on the record?

4.“Did the trial court consider and properly, apply

the statutory guidelines, pursuant to R.C. 2929.12,

and R.C. 2929.14(C)(4), when exercising discretion

to impose a consecutive sentence for Count Two,

felonious assault?”

Doc. 5-1, at 822–23 (Exhibit 86). In December 2019, the Ohio court of appeals

affirmed the trial court’s judgment. Id. at 882–91 (Exhibit 88). Patterson filed

a motion for reconsideration, which the court denied. Id. at 893, 897 (Exhibits

90, 91).

In January 2020, Patterson appealed to the Ohio Supreme Court. Doc.

5-1, at 899 (Exhibit 92). In his memorandum in support of jurisdiction,

Patterson raised the following propositions of law:

1. A trial court is prohibited by double jeopardy

restrictions from increasing a lawful sentence after

defendant has served part of that sentence.

2. A court is not permitted to conduct a de novo

resentencing for any offenses not affected by the

appealed error. Therefore, offenses that were

unaffected or not vacated are not subject to review

because the sentencing package doctrine is

inapplicable to Ohio’s sentencing scheme.

3. A court’s actions are presumptively vindictive

when, after a successful appeal the same judge

imposes an increased harsher sentence without

placing objective information on the record to rebut

the presumption.

4. Appellate courts are required to consider appealed

sentencing errors and correct the absence of

mandatory findings pursuant to 2929.14(C)(4),

when exercising discretion to modify a consecutive

sentence.

Doc. 5-1, at 902 (Exhibit 93). In April 2020, the Ohio Supreme Court declined

under its rule of practice 7.08(B)(4) to accept jurisdiction of Patterson’s appeal.

Id. at 957 (Exhibit 95).

10. Motions for judicial release

Between June 2019 and May 2020, Patterson filed in the trial court four

motions for judicial release. Doc. 5-1, at 775, 795, 803, 810 (Exhibits 75, 79, 81,

83). The court denied all of them. Id. at 784, 802, 809, 817 (Exhibits 76, 80, 82,

84).

11. Second state habeas corpus petition

In July 2020, Patterson filed in the Ohio Supreme Court under Ohio

Revised Code § 2725.01 and Supreme Court Practice Rule 12.01(B) a state

habeas corpus petition. Doc. 5-1, at 990 (Exhibit 101). Patterson argued that

the trial court had no authority to resentence him in 2019 because, by then,

Patterson’s sentence had expired. Id. at 998–1004. In September 2020, the

Ohio Supreme Court sua sponte dismissed Patterson’s petition and Patterson’s

motion to amend his petition. Id. at 1090 (Exhibit 102). In November 2020, the

Ohio Supreme Court denied Patterson’s motion for reconsideration and motion

requesting findings of facts and conclusions of law. Id. at 1091 (Exhibit 103).

12. Third federal habeas petition

In April 2021, Patterson filed his third and present federal habeas

corpus petition under 28 U.S.C. § 2254. Doc. 1. He also filed an “Appendix,”

which includes his grounds for relief and supporting facts. Doc. 1-1. Patterson

raises the following grounds for relief:

Ground one: Petitioner’s right to finality and

protection against multiple criminal punishments

for the same offense in successive proceedings were

violated when a sentence was imposed following the

expiration of his stated term in violation of the

Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution, applicable through

the Fourteenth Amendment to the United States

Constitution.

Supporting facts: The trial court judge John

G. Haas on April 11, 2019, resentenced Petitioner

after the expiration of his stated prison term for

counts two, three, four, and an attendant firearm

specification sanction. The sentence for the aforesaid

counts expired on or about January 16, 2019, ten-

years after Petitioner was taken into custody on

January 9, 2009, in Corpus Christi, Nueces County,

Texas. Therefore, the March 4, 2019, judgment by

the Eleventh Appellate District Court, Trumbull

County, ordered a resentencing hearing about ___

days after the expiration of the Petitioner’s lawful

sentences.

Ground two: Petitioner’s rights to finality and

protections against multiple punishments for the

same offense in successive proceedings were violated

when the trial court imposed a sentence for a second

time, for count two (felonious assault), after the

expiration of the stated prison term. This act was in

violation of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution,

applicable through the Fourteenth Amendment to

the United States Constitution.

Supporting facts: The trial court judge John

G. Haas on April 11, 2019, resentenced Petitioner a

second time for count two (felonious assault).

Ground three: Petitioner’s right to due process of

law was violated when the same sentencer imposed

an increased presumptively vindictive sentence for

count two (felonious assault), without placing

objective information on the record. North Carolina

v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072; Wasman

v. United States, 468 U.S. 559, 570, 104 S. Ct. 3217;

U.S. Constitution Amendment 5, applicable through

the 14 Amendment, § 1.

Supporting facts: On April 11, 2019, the judge

John G. Haas resentenced Petitioner to an increased

sentence on count two (felonious assault) without

placing objective information on the record to

support the increase of the sentence. United States

v. Rapal (9th Cir. 1998), 146 F.3d 661, 664; United

States v. Jackson (6th Cir. 1999), 181 F.3d 740, 747.

Ground four: Petitioner’s rights to due process and

Equal Protections under the law were violated when

the trial court conducted a de novo resentencing on

an undisturbed conviction. U.S. Constitution

Amendment 5, applicable through the U.S.

Constitution Amendment 14, § 1.

Supporting facts: Following the remand, on

April 11, 2019, the trial court judge John G. Haas

resentenced on count two (felonious assault), an

undisturbed conviction.

Doc. 1, at 5, 7, 8, 10; Doc. 1-1, at 6, 11, 12, 14. The Warden filed a Return of

Writ, Doc. 5, Patterson filed a Traverse, Doc. 8, and the Warden filed a Reply,

Doc. 9. I ordered supplemental briefing, Doc. 15, which the Warden provided,

Doc. 16.

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104–132, 110 Stat. 1214 (“AEDPA”), petitioners must meet certain

procedural requirements to have their claims reviewed in federal court. Smith

v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural

barriers, such as statutes of limitations and rules concerning procedural

default and exhaustion of remedies, operate to limit access to review on the

merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381

(2001). Although procedural default is sometimes confused with exhaustion,

exhaustion and procedural default are distinct concepts. Williams v. Anderson,

460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state

remedies are “still available at the time of the federal petition.” Id. (quoting

Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies

are no longer available, procedural default rather than exhaustion applies. Id.

Exhaustion

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A). A state defendant with federal constitutional claims must fairly

present those claims to the state courts before raising them in a federal habeas

corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have

jurisdiction to consider a claim in a habeas petition that was not ‘fairly

presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877

(6th Cir. 2003)). A constitutional claim for relief must be presented to the

state’s highest court to satisfy the fair presentation requirement. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999); Hafley v. Sowders, 902

F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the

factual and legal underpinnings of the claims to the state courts. McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner

must present his claim to the state courts as a federal constitutional issue—

not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,

368 (6th Cir. 1984).

Procedural default

Procedural default may occur in two ways. Williams, 460 F.3d at 806.

First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.

In Maupin v. Smith, the Sixth Circuit provided four prongs of analysis to be

used when determining whether a claim is barred on habeas corpus review due

to a petitioner’s failure to comply with a state procedural rule: whether (1)

there is a state procedural rule applicable to the petitioner’s claim and whether

the petitioner failed to comply with that rule; (2) the state court enforced the

procedural rule; (3) the state procedural rule is an adequate and independent

state ground on which the state can foreclose review of the federal

constitutional claim; and (4) the petitioner can demonstrate cause for failing to

follow the rule and actual prejudice by the alleged constitutional error. 785

F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the

petitioner’s failure to comply with the procedural rule, the state court declines

to reach the merits of the issue, and the state procedural rule is an independent

and adequate grounds for precluding relief, the claim is procedurally

defaulted.”) (citing Maupin, 785 F.2d at 138).

Second, “a petitioner may procedurally default a claim by failing to raise

a claim in state court, and pursue that claim through the state’s ‘ordinary

appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,

526 U.S. at 848). “If, at the time of the federal habeas petition, state law no

longer allows the petitioner to raise the claim, the claim is procedurally

defaulted.” Id. While the exhaustion requirement is satisfied because there are

no longer any state remedies available to the petitioner, see Coleman v.

Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal

claims considered in the state courts constitutes a procedural default of those

claims that bars federal court review. Williams, 460 F.3d at 806.

To overcome a procedural bar, petitioners must show cause for the

default and actual prejudice that resulted from the alleged violation of federal

law that forms the basis of their challenge, or that there will be a fundamental

miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at

750.

Merits review

To obtain habeas relief under 28 U.S.C. § 2254, a petitioner must show

either that the state court decision (1) resulted in a decision contrary to, or

involved an unreasonable application of, clearly established federal law as

determined by the United States Supreme Court (“contrary to” clause); or (2)

resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceedings

(“unreasonable application” clause). 28 U.S.C. § 2254(d).

Under the contrary to clause, a federal habeas court may grant a writ if

the state court “arrives at a conclusion opposite to that reached by the [United

States Supreme] Court on a question of law or [based on] a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

Under the unreasonable application clause, a federal habeas court may grant

the writ “if the state court identifies the correct governing legal principle from

th[e] Court’s decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. at 413. “Clearly established federal law” refers to the

holdings, not dicta, of the Supreme Court’s decisions as of the time of the

relevant state court decision, and legal principles and standards flowing from

Supreme Court precedent. Id. at 412; Ruimveld v. Birkett, 404 F.3d 1006, 1010

(6th Cir. 2005). A state court is not required to cite Supreme Court precedent

or reflect an awareness of Supreme Court cases, “so long as neither the

reasoning nor the result of the state-court decision contradicts” such precedent.

Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v. Wilson, 426 F.3d 339, 358 (6th

Cir. 2005). If the Supreme Court has not addressed the petitioner’s specific

claims, a reviewing district court cannot find that a state court acted contrary

to, or unreasonably applied, Supreme Court precedent or clearly established

federal law. Carey v. Musladin, 549 U.S. 70, 77 (2006); White v. Woodall, 572

U.S. 415, 426 (2014) (“Section 2254(d)(1) provides a remedy for instances in

which a state court unreasonably applies this Court’s precedent; it does not

require state courts to extend that precedent or license federal courts to treat

the failure to do so as error.”).

In determining whether the state court’s decision involved an

unreasonable application of law, the court uses an objective standard.

Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks

merit precludes federal habeas review so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “A state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

In all four grounds for relief Patterson challenges the trial court’s 2019

resentencing on count two. Patterson raises different theories about why he

believes that resentencing was unconstitutional, which are difficult to

distinguish from one another. But they boil down to these three theories

corresponding to the following three grounds: one, Patterson’s sentence had

already expired when he was resentenced; two, Patterson’s original sentence

remained intact and was not void; and three, the trial court increased

Patterson’s sentence.3 Because the lion’s share of these arguments stem from

Patterson’s assertion that his sentence was not void, I start with Ground two

and continue from there in chronological order.

Ground Two fails on the merits

As I mentioned, it is not entirely clear what Patterson alleges in Ground

two. In his Petition, Patterson doesn’t describe Ground two with particularity.

Doc. 1, at 7. Instead, he references the “Appendix pg. A10–11.” Id. In his

Appendix at those pages, Patterson’s “Ground two” heading alleges that the

trial court violated the Double Jeopardy Clause when it resentenced Patterson

in April 2019, after Patterson’s original sentence had already expired. Doc. 1-

1, at 11–12; see also Doc. 8, at 20 (Patterson’s Traverse stating that the trial

court violated the Double Jeopardy Clause when it resentenced Patterson after

Patterson’s sentence had already expired). That is the same claim that

Patterson raises in Ground one, infra.

But in his Petition, Patterson states that he raised Ground two on direct

appeal and not in a state habeas corpus petition, Doc. 1, at 7; Doc. 1-1, at 11,

whereas the opposite is true with Ground one—Patterson raised that claim in

a state habeas corpus petition and not on direct appeal, Doc. 1, at 5–6. The

Warden characterizes Ground two as a claim that Patterson raised on direct

appeal from his 2019 resentencing—that the trial court violated the Double

3 Ground four contains a blend of the theories alleged in the first three

grounds. Doc. 8, at 9, 11–12, 14–16.

Jeopardy Clause when it resentenced Patterson to four years on count two in

April 2019. Doc. 5, at 28–30; see also Doc. 5-1, at 828–30 (Patterson’s appellate

brief in which he argued that the trial court didn’t have jurisdiction to

resentence him on count two because Patterson had only challenged his

conviction on count one). In his Traverse, Patterson doesn’t dispute the

Warden’s characterization of Ground two. Doc. 8, at 20. So I consider Ground

two as the Warden described it and the Ohio court of appeals considered it on

direct appeal—the trial court violated the Double Jeopardy Clause when it

resentenced Patterson on count two because the Ohio court of appeals’ remand

order only covered count one.4 Doc. 5, at 28–30; Doc. 8, at 20–21.

The Double Jeopardy Clause “protects against a second prosecution for

the same offense after acquittal,” “against a second prosecution for the same

offense after conviction,” and “against multiple punishments for the same

offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Patterson’s claim

implicates the prohibition against multiple punishments for the same offence.

The Ohio court of appeals considered Patterson’s claim as follows:

{¶8} In his first assignment of error, Appellant

argues his previously imposed sentence of three

years incarceration on count two, felonious assault,

ordered to run concurrently with count one,

attempted felony murder, was not affected by the

remand and could not be increased to four years. He

4 To the extent that Patterson argues in support of Ground two that the

trial court had no authority to increase his sentence under North Carolina v.

Pearce, 395 U.S. 711 (1969), Doc. 8, at 25, I consider that issue when discussing

Ground three.

further argues the imposition of a new sentence on

this count violates the double jeopardy clause.

{¶9} Pursuant to State v. Williams, 148 Ohio St. 3d

403, 2016-Ohio-7658, 71 N.E.3d 234, Appellant’s

sentence for count two of felonious assault, which as

an allied offense merged into count one of attempted

felony murder, was void. Having vacated as void the

sentence for attempted felony murder which count

two of felonious assault had merged into, the

Eleventh District Court of Appeals remanded the

matter for resentencing on count two. A remand for

a new sentencing hearing generally anticipates a de

novo sentencing hearing. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15.

During a de novo resentencing, the trial court is free

to impose the identical sentence which was

originally imposed, or a greater or lesser sentence

within its discretion. State v. Jackson, 8th Dist.

Cuyahoga No. 92365, 2009-Ohio-4995, ¶ 9.

{¶10} We find the trial court was free to impose a

greater sentence than the three year sentence,

which was rendered void, it had previously imposed

for felonious assault.

{¶11} Further, we find no double jeopardy violation

because Appellant’s previous sentence for felonious

assault was void. Jeopardy does not attach to a void

sentence. State v. Jordan, 104 Ohio St. 3d 21, 2004-

Ohio-6085, 817 N.E.2d 864, ¶25.

{¶12} Appellant’s first assignment of error is

overruled.

State v. Patterson, No. 2019CA00110, 2019 WL 6834840, at *2–3 (Ohio Ct. App.

Dec. 9, 2019).

Paterson argues that “the record lacks a determination, by the trial

court, as to whether the sentences for Count One and Count Two were

‘interdependent sentences’” and that “[i]t is evident from the record, prior to

the resentencing hearing,” that the trial court ordered the sentences in counts

one and two to run concurrently. Doc. 8, at 21. Patterson concludes, “the

appellate court’s holding, that the sentence for Count Two felonious assault

being void is erroneous, without authority, and deprives him constitutional

rights to finality and double jeopardy protections.” Id.

First up is Patterson’s assertion that the record doesn’t support the Ohio

court of appeals’ finding that Patterson’s sentence on count two was void. Doc.

8, at 21. Under 28 U.S.C. § 2254(e)(1), this Court presumes that the state court

made correct findings of fact and Patterson must show clear and convincing

evidence to rebut that presumption. Franklin v. Bradshaw, 695 F.3d 439, 447

(6th Cir. 2012); see also Griffin v. Buchanan, No. 19-3858, 852 F. App’x 199,

204 (6th Cir. April 20, 2021). “[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, “the record must

‘compel the conclusion that the [state] court had no permissible alternative’ but

to arrive at the contrary conclusion.” Carter v. Bogan, 900 F.3d 754, 768 (6th

Cir. 2018) (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)). Finally, the

petitioner must show that the relevant state court’s decision was “‘based on’

that unreasonable [factual] determination.” Carter, 900 F.3d at 768 (citing Rice

v. White, 660 F.3d 242, 250 (6th Cir. 2011)).

Patterson doesn’t show that the Ohio court of appeals’ factual

determination, which served as the basis for the court finding that count two

was void, was unreasonable.5 See Burt, 571 U.S. at 18. The Ohio court of

appeals relied on state law to find that counts one and two were allied offences.

Patterson, 2019 WL 6834840, at *1 (citing State v. Williams, 71 N.E.3d 234

(Ohio 2016)). In Williams, the Ohio Supreme Court wrote:

when a trial court concludes that an accused has in

fact been found guilty of allied offenses of similar

import, it cannot impose a separate sentence for

each offense. Rather, the court has a mandatory

duty to merge the allied offenses by imposing a

single sentence, and the imposition of separate

sentences for those offenses—even if imposed

concurrently—is contrary to law because of the

mandate of R.C. 2941.25(A). In the absence of a

statutory remedy, those sentences are void. [State v.]

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920

N.E.2d 958, at ¶ 25.

Williams, 71 N.E.3d at 2406; see also State v. Gapen, 819 N.E.2d 1047, 1071

(Ohio 2004). At the sentencing hearing, the trial court sentenced Patterson to

ten years on count one, attempted murder of Alston and the attendant firearm

specification. Doc. 5-2, at 465. As to count two, felonious assault of Alston and

an attendant firearm specification, the trial court stated:

5 The “presumption [in Section 2254(e)(1)] also applies to the factual

findings that the state appellate court makes on its review of the state trial

record.” Johnson v. Bell, 525 F.3d 466, 474 (6th Cir. 2008).

6 In 2020, the Ohio Supreme Court abrogated Williams and held that a

sentencing error, with few exceptions, is voidable, not void. See State v.

Henderson, 162 N.E.3d 776, 788 (Ohio 2020).

Now, as it relates to the felonious assault for the

same victim, it arose out of the same conduct

technically because there were two shots. There

could be a separate sentence for this, but the Court

is going to make the sentence concurrent as it relates

to that felonious assault of three years for the

felonious assault and three years for the gun spec to

be merged with the attempted murder.

Doc. 5-2, at 465. The trial court’s statement supports the Ohio court of appeals’

finding that, under Ohio law, count two was an allied offence. See also Ohio

Rev. Code § 2941.25(A) (“Where the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses, but the

defendant may be convicted of only one.”). That is also reflected in the trial

court’s 2009 sentencing entry stating that count two merged with count one.

Doc. 5-1, at 16; see also Patterson, 2015 WL 2058968, at *2 (stating that “the

trial court’s sentence, both on the record and in the May 19, 2009 judgment

entry,” merged counts one and two); Patterson v. Bracy, 132 N.E.3d 1115, 1121

(Ohio Ct. App. 2019) (“It is clear that count two, felonious assault, and the

accompanying firearm specification cannot [now] merge with the void

conviction on count one as ordered in the first sentencing entry.”).

Patterson argues that the trial court issued two nunc pro tunc entries in

July 2017 that characterized the 2009 sentence differently, and that later in

2017 the Ohio Court of Appeals for the Fifth District of Ohio upheld those nunc

pro tunc entries.7 Doc. 8, at 20–21 (citing Doc. 5-1, at 584–92); State v.

Patterson, No. 2017CA00153, 2017 WL 6381685 (Ohio Ct. App. Dec. 11, 2017).

But Patterson also concedes that the validity of the 2017 nunc pro tunc entries

was questioned in 2019 by the Ohio Court of Appeals for the Eleventh District

of Ohio. Doc. 8, at 21. That appellate court wrote that “[a]n issue remains as to

whether this is a proper nunc pro tunc order.” Patterson v. Bracy, 132 N.E.3d

1115, 1121 (Ohio Ct. App. 2019). And the subsequent 2019 finding by the Ohio

Court of Appeals for the Fifth District of Ohio that count two was an allied

offence that merged into count one is consistent with the record and prior court

decisions examining the initial sentencing in 2009. See Patterson, No. 2019-

CA-00110, 2019 WL 6834840, at *2. It cannot be said that “the record must

‘compel the conclusion that the [state] court had no permissible alternative’ but

to arrive at the contrary conclusion.” Carter, 900 F.3d at 768 (quoting Rice, 546

U.S. at 341–42).

Next is Patterson’s challenge to the Ohio court of appeals’ finding that

jeopardy didn’t attach to his void sentence. The Double Jeopardy Clause

prohibits resentencing when a defendant developed a legitimate “expectation

of finality in the original sentence.” United States v. DiFrancesco, 449 U.S. 117,

7 The trial court issued both nunc pro tunc entries on July 20, 2017. Doc.

9-1, at 477, 492. One purported to apply to the May 2009 sentencing and the

other purported to apply to the June 2015 resentencing. Doc. 5-1, at 477, 492.

Both stated that Patterson was sentenced to three years on count two, current

to the sentence in count one, and merged the three-year firearm specification

into count one. Id. at 480–81, 494.

138–39 (1980). Patterson alleges that he had an expectation of finality in his

original three-year prison term on count two because he didn’t attack his

sentence on count two—he only attacked his conviction and sentence on count

one. Doc. 8, at 20, 23–26. But count one necessarily implicated count two

because count two had merged into count one, so both sentences were void.8

See Patterson, 2019 WL 6834840, at *3. Patterson’s successful challenge to his

conviction on count one put count two back into play.

In Bozza v. United States, 330 U.S. 160, 166 (1947), the Supreme Court

held that the Double Jeopardy Clause was not violated when the trial court

corrected a sentence by later adding a mandatory fine to a previously imposed

term of imprisonment. The Court explained:

The Constitution does not require that sentencing

should be a game in which a wrong move by the

judge means immunity for the prisoner. In this case

the court only set aside what it had no authority to

do, and substituted directions required by the law to

be done upon the conviction of the offender. It did

not twice put petitioner in jeopardy for the same

offense. That sentence as corrected, imposes a valid

punishment for an offense instead of an invalid

punishment for that offense.

Bozza, 330 U.S. at 166–67 (internal citations and quotation marks omitted).

Here, the trial court set aside a void conviction and sentence on count one and

imposed a new sentence on count two—“a valid punishment.” See id. Patterson

8 Patterson challenged his conviction as void on count one in 2015. Doc. 5-

1, at 279; Doc. 5-2, at 468, 470. So his reliance upon the trial court’s

questionable 2017 nunc pro tunc entries as the basis of his expectation of

finality when count one was voided, Doc. 8, at 20, is not persuasive.

cites federal criminal cases from other circuits and United States Supreme

Court cases in support of his claim, Doc. 8, at 21–25, but none of those cases

are on point with the facts of this case. Patterson hasn’t shown that the Ohio

court of appeals’ decision was “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility

for fair-minded disagreement.” Harrington, 562 U.S. at 103. Ground two fails

on the merits.

Ground one fails on the merits9

In Ground one, Patterson argues that the trial court violated the Double

Jeopardy Clause when the court in 2019 resentenced Patterson after his

sentences had expired.10 Doc. 1, at 5; Doc. 1-1, at 6; Doc. 8, at 16–17. Patterson

explains that he was taken into custody for the charges in his criminal case in

January 2009. Doc. 1-1, at 6. After trial, in May 2009, the court sentenced

Patterson to a 20-year prison sentence, including 13 years for count one and

the attendant three-year firearm specification. Doc. 5-1, at 17. In March 2019

9 The Warden alleges that Ground one is procedurally defaulted. Docs. 9,

16. I ordered the Warden to provided supplemental briefing on the procedural

default issue and to brief the merits of Ground one. Doc. 15. The Warden filed

her supplemental briefing. Doc. 16. In this report and recommendation, I

address Ground one on the merits. See Mahdi v. Bagley, 522 F.3d 631, 635 (6th

Cir. 2008) (“[F]ederal courts are not required to address a procedural-default

issue before deciding against the petitioner on the merits”) (citation omitted).

10 In his Appendix, Patterson cites to and complains of various other

actions by the state courts in 40 paragraphs containing parts and sub-parts.

See, e.g., Doc. 1-1, at 6–11. In his Traverse, Patterson homes in on the actual

claim Ground one alleges—that the trial court resentenced Patterson after his

sentence had expired. Doc. 8, at 16–20. I do the same.

the Ohio court of appeals determined that count one was void and remanded

Patterson’s case back to the trial court for a resentencing. Doc. 5-1, at 987. The

trial court resentenced Patterson in April 2019. Id. at 734. But by then,

Patterson alleges, he had served the remaining “aggregate ten-years prison

term remain[ing] for count[s] two … three … and … four.” Doc. 1-1, at 7. And

so, Patterson states, his sentence had expired when the trial court resentenced

him, violating the Double Jeopardy Clause and Patterson’s expectations of

finality. Id, at 7, 10; Doc. 8, at 16–17.

As I explained above when discussing Ground one, the trial court in 2009

merged count two into count one at sentencing. So Patterson’s argument that

he had already served a three-year sentence on count two, Doc. 1-1, at 7, is

wrong because Patterson didn’t receive a valid sentence on count two.

Patterson’s calculation stems from his belief that when count one was

declared void, count two somehow evaporated and thus he wouldn’t have to

serve a lawful sentence for it. Patterson has not identified United States

Supreme Court precedent that supports such a conclusion.

To recap: in counts one and two, Patterson was found guilty of attempted

felony murder and felonious assault, respectively, for shooting Alston, which

left Alston paralyzed. Doc. 5-1, at 9–10, 17; Patterson, 2010 WL 2595181, at *2.

Both counts carried a three-year firearm specification. Doc. 5-1, at 9–10, 17. In

count three, Patterson was found guilty of felonious assault for shooting at

Maddox and grazing him with a bullet. Patterson, 2010 WL 2595181, at *2.

Count three also carried a three-year firearm specification. Doc. 5-1, at 10, 17.

At sentencing, the trial court merged count two with count one and sentenced

Patterson to thirteen years on count one and six years on count three, including

the three-year firearm specifications on those counts, and a one-year sentence

for count four. Doc. 5-1, at 9. After the law on attempted felony murder in Ohio

changed, the Ohio court of appeals declared void count one. Patterson v. Bracy,

132 N.E.3d at 1121. That left counts two and three, felonious assault against

two different victims, which carry mandatory and consecutive firearm

specifications. See Doc. 5-1, at 16–17 (2009 sentencing entry); Doc. 5-2, at 465–

66 (2009 sentencing hearing); see also Ohio Rev. Code § 2929.14(B)(1)(g) (a

court “shall” impose at least two mandatory firearm specifications if a

defendant is convicted of two or more felonies, including felonious assault);

State v. Gervin, 79 N.E.3d 59, 94 (Ohio Ct. App. 2016) (Ohio law requires the

trial court to impose consecutively a mandatory three-year prison term on a

gun specification attached to a felonious assault conviction). So to find that

Patterson had already served his “aggregate” sentence when he was

resentenced in 2019, Doc. 1-1, at 7, would mean that Patterson would escape

punishment for shooting Alston.11 Double jeopardy jurisprudence doesn’t

11 Patterson relies on the trial court’s July 2017 nunc pro tunc sentencing

entry to support his calculation. Doc. 1-1, at 6. Even if that entry were valid,

which it wasn’t, Patterson would have had three years left to serve when he

was resentenced in 2019 because count two carried a mandatory consecutive

three-year firearm specification. See Ohio Rev. Code § 2929.14(B)(1)(g); Gervin,

79 N.E.3d at 94.

condone or require that outcome. See Bozza, 330 U.S. at 166 (“This Court has

rejected the ‘doctrine that a prisoner, whose guilt is established by a regular

verdict, is to escape punishment altogether because the court committed an

error in passing the sentence.’”) (citation omitted).

The trial court’s 2019 “sentence as corrected[] imposes a valid

punishment for an offense instead of an invalid punishment for that offense”

and “did not twice put [Patterson] in jeopardy for the same offense.” Bozza, 330

U.S. at 167; Pearce, 395 U.S. at 717. Patterson doesn’t allege that he wasn’t

credited for the time he served. And he obtained at his 2019 resentencing an

aggregate sentence that was six years shorter than his original sentence, so

it’s unclear what he pins his expectation of finality on. Ground one fails on the

merits.12

Ground three fails on the merits

In Ground three, Patterson alleges that his due process rights were

violated when the trial court at Patterson’s 2019 resentencing increased his

sentence on count two without explanation. Doc. 1-1, at 12. Patterson argues

that an “increased sentence by the same sentencer is presumptively

vindictive.” Id. at 13.

12 Because I don’t address whether Ground one is procedurally defaulted,

there is a question as to which standard of review applies—deferential review

under AEDPA or de novo review. See, e.g., Rice v. White, 660 F.3d 242, 252 (6th

Cir. 2011). I need not resolve that issue because Ground one fails under either

standard.

A trial court may resentence a defendant to a greater sentence after a

successful appeal, so long as the court isn’t motivated by vindictiveness. North

Carolina v. Pearce, 395 U.S. 711, 723–25 (1969). “[W]henever a judge imposes

a more severe sentence upon a defendant … the reasons for … doing so must

affirmatively appear.” Id. at 726. Pearce was interpreted, over time, to create

“a presumption of vindictiveness, which may be overcome only by objective

information in the record justifying the increased sentence.” Goodell v.

Williams, 643 F.3d 490, 496 (6th Cir. 2011) (quoting United States v. Goodwin,

457 U.S. 368, 374 (1982)). But subsequent cases have reined in Pearce’s

application:

Because the Pearce presumption “may operate in the

absence of any proof of an improper motive and thus

... block a legitimate response to criminal conduct,”

United States v. Goodwin, supra, 457 U.S., at 373,

102 S.Ct., at 2488, we have limited its application,

like that of “other ‘judicially created means of

effectuating the rights secured by the

[Constitution],’” to circumstances “where its

‘objectives are thought most efficaciously served,’”

Texas v. McCullough, supra, 475 U.S., at 138, 106

S.Ct., at 979, quoting Stone v. Powell, 428 U.S. 465,

482, 487, 96 S.Ct. 3037, 3046, 3049, 49 L.Ed.2d 1067

(1976). Such circumstances are those in which there

is a “reasonable likelihood,” United States v.

Goodwin, supra, 457 U.S., at 373, 102 S.Ct., at 2488,

that the increase in sentence is the product of actual

vindictiveness on the part of the sentencing

authority. Where there is no such reasonable

likelihood, the burden remains upon the defendant

to prove actual vindictiveness, see Wasman v. United

States, 468 U.S. 559, 569, 104 S.Ct. 3217, 82 L.Ed.2d

424 (1984).

Alabama v. Smith, 490 U.S. 794, 799–800 (1989); see also Goodell, 643 F.3d at

500.

The Ohio court of appeals discussed North Carolina v. Pearce and

Alabama v. Smith and found:

{¶20} Appellant has not proven actual vindictiveness

in the instant case. The State argued for a sentence

of eight years for count two of felonious assault,

while Appellant argued for a sentence of three or five

years. Resentencing Tr. 9. Appellant has not

demonstrated vindictiveness, as the four year

sentence imposed by the court was actually less than

the high-end five year sentence proposed by

Appellant.

{¶21} The third assignment of error is overruled.

Patterson, 2019 WL 6834840, at *3.

To recap: in 2009, the trial court sentenced Patterson to three years on

count two, but then merged count two into count one. Doc. 5-2, at 465; Doc. 5-

1, at 16. In 2019, the trial court commenced a resentencing hearing on April 3.

Doc. 5-2, at 474–98. At that hearing, the state suggested that the court

sentence Patterson to eight years on count two and defense counsel suggested

that the court sentence Patterson to three to five years on count two. Doc. 5-2,

at 478, 482. The trial court asked Patterson’s attorney if the attorney agreed

with the state that the court had the authority to sentence Patterson de novo

on count two. See Doc. 5-2, at 483–84. Patterson’s attorney wasn’t prepared to

respond, so the trial court sua sponte rescheduled the hearing to give

Patterson’s attorney more time to respond to that legal issue. Id. at 483–86. At

the next hearing on April 11, the court stated that it agreed with the state that

it could resentence Patterson de novo on count two and sentenced him to four

years in prison—half of what state requested and the mid-point of defense

counsel’s suggestion. Id. at 503–06; Doc. 5-1, at 736.

Patterson concedes that at the April 3 hearing his counsel suggested

that the trial court increase Patterson’s sentence on count two, Doc. 8, at 27,

as the Ohio court of appeals observed, Patterson, 2019 WL 6834840, at *3. But

Patterson argues that at the April 11 hearing, his attorney stated that he

believed that the trial court should void count one and “allow [Patterson] to

serve the remaining thirteen years … on the remaining counts.” Id. at 28; Doc.

5-1, at 502. That statement was relevant to counsel’s legal argument as to

whether the court could resentence Patterson de novo on count two. The trial

court agreed with the state on that issue, id. at 503, and as for how long a

sentence Patterson should receive on count two, Patterson’s attorney’s

suggestion—that the court sentence Patterson to three to five years—stood

unmodified. Given the fact that the state asked the court to resentence

Patterson to an eight-year prison term on count two, id. at 478, and Patterson’s

counsel asked for a three-to-five-year prison term, id. at 482, it cannot be said

that the trial court’s four-year sentence—an increase of one year from the

court’s previously announced, voided sentence—was vindictive and triggered

the Pearce presumption.13 So the fact that the Ohio court of appeals did not

13 Indeed, at the April 3, 2019 resentencing hearing, the trial court stated

that “out of fairness to [Patterson’s counsel] and Mr. Patterson,” the court

continued the resentencing hearing so that counsel could consider his legal

apply the Pearce presumption was not an unreasonable application of Supreme

Court precedent. Smith, 490 U.S. 794, at 799–800; Goodell, 643 F.3d at 500.

Nor was the court’s conclusion that Patterson didn’t show actual

vindictiveness. Ground three fails on the merits.

A portion of Ground four is procedurally defaulted, a portion is not

cognizable, and the remainder fails on the merits

In Ground four, Patterson argues that the trial court violated his due

process and equal protection rights when it sentenced him on count two, which

he describes as an “undisturbed conviction.” Doc. 1, at 10; Doc. 1-1, at 14. He

also complains that the trial court “applied the sentencing package doctrine,

an unrecognized sentencing scheme in Ohio.” Doc. 1-1, at 14.

To the extent Patterson alleges that the trial court didn’t have

jurisdiction to resentence him on count two because it was an “undisturbed

conviction,” id., see also Doc. 8, at 14, that is the same claim Patterson raises

in Ground two. As explained above, the Ohio court of appeals determined that

Patterson’s sentence on count one and two were void, Patterson, 2019 WL

6834840, at *2–3, so the court was permitted to resentence Patterson on count

two.

Patterson’s claim that his Equal Protection rights were violated when

the trial court resentenced him on count two is procedurally defaulted because

arguments as to whether the court could resentence Patterson de novo on count

two or not. Doc. 5-2, at 486. The trial court’s concern about fairness to

Patterson at resentencing doesn’t show vindictiveness.

Patterson didn’t raise this claim as an equal protection violation when he

appealed to the Ohio Supreme Court. Doc. 5-1, at 902; see O’Sullivan, 526 U.S.

at 845 (1999) (a petitioner must present a claim to the state appellate court

and the state supreme court); Koontz, 731 F.2d at 368 (the “petitioner must

present his claim to the state courts as a federal constitutional issue—not

merely as an issue arising under state law.”). Although Patterson cited the

equal protection clause in connection with one of his other claims—that the

trial court erred when it resentenced him to “consecutive sentences without

making statutory mandated factfinding,” Doc. 5-1, at 915—raising equal

protection in a separate ground doesn’t preserve the equal protection claim

that Patterson alleges in Ground four. See McMeans, 228 F.3d at 681 (A claim

is “fairly presented” only if the petitioner asserted both the factual and legal

basis for the claim to the state courts). Patterson doesn’t allege cause,

prejudice, or actual innocence to overcome the procedural default of Ground

four.

Patterson’s claim that the trial court applied the sentencing package

doctrine in violation of Ohio state law is a state law sentencing issue not

cognizable on federal habeas review.14 See Estelle v. McGuire, 502 U.S. 62, 67-

14 The sentencing package doctrine applies when a defendant is convicted

of more than one count of a multi-count indictment and one or more counts is

reversed on appeal. Under the doctrine, the district court may vacate the

defendant’s entire sentence and resentence the defendant. See, e.g., United

States v. Clements, 86 F.3d 599, 601 (6th Cir. 1996); see also State v. Saxon,

846 N.E.2d 824, 827–28 (Ohio 2006).

68 (1991) (“a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States”); Austin v. Jackson,

213 F.3d 298, 300 (6th Cir. 2000) (an alleged violation of state sentencing laws

is not cognizable on federal habeas review) (citing Pulley v. Harris, 465 U.S.

37, 41 (1984)).

And Patterson’s claim that the trial court applied the sentencing package

doctrine in violation of the Double Jeopardy clause fails on the merits. The

Ohio court of appeals concluded, “[w]e find nothing in the record to

demonstrate the court employed the sentencing package doctrine.” Patterson,

2019 WL 6834840, at *3; see also State v. Shearer, 134 N.E.3d 933, 935–37

(Ohio Ct. App. 2019) (explaining that the sentencing package doctrine is not

implicated when a trial court resentences a defendant after multiple sentences

on allied offences are deemed void and vacated). Patterson doesn’t explain how

that conclusion is contrary to, or involved an unreasonable application of,

United States Supreme Court precedent or was based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. 28 U.S.C. § 2254(d). So the portion of Ground four that is

cognizable and not procedurally defaulted fails on the merits.

Conclusion

For the reasons set forth above, I recommend that Patterson’s Petition

be denied.

Dated: July 18, 2023

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th

Cir. 2019).