Petition for Writ of Certiorari — Ahmed v. Ohio (No. 07-996)

BS

Supreme Court. U.S

D PILED

07-996 JAN 2 8 2008

No. ___OFFICE OF THE CLERK

In The

Supreme Court of the Cnited States

AZZAM AHMED,

Petitioner,

Vv.

STATE OF OHIO,

Respondent.

On Petition for Writ of Certiorari to the Ohio

Court of Appeals for the Eighth Judicial District

PETITION FOR WRIT OF CERTIORARI

MICHAEL C. HENNENBERG*

Of Counsel

Dinn, HocumMan & Potter, LLC

5910 LANDERBROOK DrIvE, Suire 200

MAYFIELD HEIGHTs, OH 44124-6500

(440) 544-2000

*Counsel of Record for Petitioner

January 28, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

i

QUESTIONS PRESENTED

Whether the elimination by judicial decision of

presumptions in favor of minimum sentences and

against maximum or consecutive sentences as applied

to a defendant convicted of crimes which allegedly

occurred prior to the judicial decision, resulting in

imposition of maximum, and consecutive sentences,

violates the proscription against ex post facto laws and

the Due Process Clause of the Fourteenth Amendment.

Whether the failure of appellate counsel to raise

clear constitutional errors on appeal, which would

have resulted in the reversal and vacation of

defendant’s maximum, consecutive sentences, violates

the defendant’s Sixth Amendment right to the effective

assistance of counsel.

**

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

TABLE OF AUTHORITIES .................. iv

SUUMNEMIEWED MOUEEAIWN oo ccc cess cece cesuncues 1

NG a6 6.63526564 0 54a koe eee 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......ccccesscccees 1

A. Federal Constitutional Provisions ........ 1

B. State Statutory Provisions .............. 2

C. Other pertinent statutes ............... 5

STATEMENT OF THE CASE ................ 5

REASONS FOR GRANTING WRIT ............ 8

I. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE RETROACTIVE

APPLICATION BY JUDICIAL DECISION OF

THE ELIMINATION OF PRESUMPTIONS IN

FAVOR OF MINIMUM SENTENCES, AND

AGAINST MAXIMUM OR CONSECUTIVE

SENTENCES, TO A DEFENDANT

CONVICTED OF OFFENSES ALLEGEDLY

COMMITTED PRIOR TO THE DECISION,

VIOLATES A DEFENDANT'S DUE PROCESS

RIGHTS AGAINST EX POST FACTO

JUDICIAL DECISION-MAKING ........... 8

ill

II. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER APPELLATE COUNSEL IS

INEFFECTIVE FOR FAILING TO RAISE

SENTENCING ERRORS ON APPEAL WHEN

THE FAILURE TO PROPERLY, PRESERVE

THE ISSUE RESULTS IN THE AFFIRMANCE

OF THE MAXIMUM POSSIBLE SENTENCE 16

be St. POPeer eer re re ere eer ee ee

APPENDIX

Appendix A: Oct. 31, 2007 Supreme Court of

Ce sk wae Gece eka ee eee

Appendix B: May 31, 2007 Court of Appeals

FPP PEE SEE EE CT TOE CE ee

la

iV

TABLE OF AUTHORITIES

CASES

Blakely v. Washington,

gk BS a passim

Booker v. United States,

> GER Me Dy | rar 14

Bouie v. Columbia,

oy) BAER” yao. ! | Ra ra 13, 14

Calder v. Bull,

oUt. COR. SEG CLTOS) .. www ce cee 11

Cunningham v. California,

ay Mes SE CU oo os aed e sued 8

Gray v. Greer,

800 F.2d 644 (7th Cir. 1985) ........... 17,19

Jones v. Barnes,

We a, POD 5 ok 4 on see he esau dae 17

Marks v. United States,

a a EPs obs ca bs ee Cee ees 13

Mayo v. Henderson,

hae Fe Gao (ae Cw. 1998) . ow... cc ccc nes 17

Miller v. Florida,

ee A NED ek ke be oe ee om 3, i

Pearson v. Ramos,

Za ¥ .30 S81 (7th Cir. 2001) .............. 18

Roe v. Flores-Ortega,

a 17

Rogers v. Tennessee,

ae OR COL) 2... ww cee ees 13

State v. Foster,

109 O.St.3d 1(2006) ................. passim

State v. Jackson,

478 So. 2d 1054 (Fla. 1985) ............... 12

Strickland v. Washington,

ar ee cae)... ww ee eee 16

United States v. Altello,

864 F.2d 257 (2d Cir. 1988) ............... i8

United States v. Barton,

455 F.3d 649 (6th Cir. 2006) .............. 14

United States v. Lanier,

Ss Sr 14

CONSTITUTION

ope eee, art. 2, Sec. 10.............. 2.13. 33

Oo , 1

apo. oe. Amend. ATV .................. 2,13

Vi

STATUTES

Re 1

Oto Mev. Code $ 200708 ow. ccc ccc cc cc cene 5

6 ee A. 5

Ohio Rev. Code § 2907.06 .................... 5

Ohio Rev. Code § 2929.14(A) ................. 2

Ohio Rev. Code § 2929.14(B) ............... 2,3

Ohio Rev. Code § 2929.14(C) ................. 3

Ohio Rev. Code § 2929.14(C)(4) ............... 4

1

Petitioner Azzam Ahmed respectfully prays that a

Writ of Certioriari issue to review the decision of the

Ohio Court of Appeals for the Eighth Judicial District

entered on June 11, 2007.

OPINIONS BELOW

The Ohio Court of Appeals for the Eighth Judicial

District announced its decision in this case on May 31,

2007, and issued an unpublished opinion on June 11,

2007. A copy of that opinion is attached as Appendix

B. The Ohio Supreme Court issued a one-page order

denying discretionary review of the Court of Appeals’

decision on October 31, 2007. A copy of that order is

attached as Appendix A.

JURISDICTION

The Ohio Supreme Court denied discretionary

review on October 31, 2007. This Court has

jurisdiction pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Federal Constitutional Provisions

The Sixth Amendment to the United States

Constitution provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial by an impartial jury. . . and to

have the assistance of counsel for his defense.”

2

Article I, Section 10 of the United States

Constitution provides in relevant part: “No bill of

attainder or ex post facto Law shall be passed.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “[Nlor shall

any state deprive any person of life, liberty, or

property, without due process of law... .”

B. State Statutory Provisions:

Ohio Revised Code Section 2929.14(A) provides in

relevant part:

“(A) .. . if the court imposing a sentence upon

an offender for a felony elects or is required to

impose a prison term on the offender pursuant

to this chapter, the court shall impose a definite

prison term that shall be one of the following:

“(1) For a felony of the first degree, the prison

term shall be three, four, five, six, seven, eight,

nine, or ten years.

“(3) For a felony of the third degree, the prison

term shall be one, two, three, four, or five

years.”

Ohio Revised Code Section 2929.14(B) provides in

relevant part:

“(B) Except as provided in division (C), (D)(1),

(D)(2), (D)(3), (D)(5), (D)(6), (G), or (L) of this

section, in section 2907.02 or 2907.05 of the

Revised Code, or in Chapter 2925. of the

3

Revised Code, if the court imposing a sentence

upon an offender for a felony elects or is

required to impose a prison term on the

offender, the court shall impose the shortest

prison term authorized for the offense pursuant

to division (A) of this section, unless one or more

of the following applies:

“(1) The offender was serving a prison term at

the time of the offense, or the offender

previously had served a prison term.

“(2) The court finds on the record that the

shortest prison term will demean the

seriousness of the offender’s conduct or will not

adequately protect the public from future crime

by the offender or others.

Ohio Revised Code Section 2929.14(C) provides in

relevant part:

“(C) Except as provided in division (G) or (L) of

this section cr in Chapter 2925. of the Revised

Code, the court imposing a sentence upon an

offender for a felony may impose the longest

prison term authorized for the offense pursuant

to division (A) of this section only upon

offenders who committed the worst forms of the

offense, upon offenders who pose the greatest

likelihood of committing future crimes, upon

certain major drug offenders under division

(D)(3) of this section, and upon certain repeat

violent offenders in accordance with division

(D2) of this section.”

4

Ohio Revised Code Section 2929.14(C)(4) provides

in relevant part:

“(4) If multiple prison terms are imposed on an

offender for convictions of multiple offenses, the

court may require the offender to serve the

prison terms consecutively if the court finds

that the consecutive service is necessary to

protect the public from future crime or to

punish the offender and that consecutive

sentences are not disproportionate to the

seriousness of the offender’s conduct and to the

danger the offender poses to the public, and if

the court also finds any of the following:

“(a) The offender committed one or more of the

multiple offenses while the offender was

awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16,

2929.17, or 2929.18 of the Revised Code, or was

under post-release control for a prior offense.

“(b) At least two of the multiple offenses were

committed as part of one or more courses of

conduct, and the harm caused by two or more of

the multiple offenses so committed was so great

or unusual that no single prison term for any of

the offenses committed as part of any of the

courses of conduct adequately reflects the

seriousness of the offender’s conduct.

“(c) The offender’s history of criminal conduct

demonstrates that consecutive sentences are

necessary to protect the public from future

crime by the offender.”

5

C. Other pertinent statutes

Relevant Ohio sentencing statutes, which are

attached as Appendix C, include the following:

Ohio R.C. §2907.02 - Rape

Ohio R.C. §2907.03 - Sexual Battery

Ohio R.C. §2907.06 - Sexual Imposition

STATEMENT OF THE CASE

On August 29, 2002, the defendant, Dr. Azzam

Ahmed, a 55-year gynecologist, was charged with

sexual misconduct with a patient. The arrest was

televised and accorded great local publicity, and the

Parma, Ohio, Police Department provided a telephone

number to call for other patients who believed they

might have been similarly treated. The result was a

secret indictment issued on May 20, 2003, charging Dr.

Ahmed with fifty-three offenses involving thirty-seven

patients: twenty-seven counts of sexual imposition, a

third-degree misdemeanor, twenty-four counts of

sexual battery, a third-degree felony, and two counts

of rape, a first-degree felony.

The case proceeded to trial in January of 2004. The

prosecution dismissed three counts of sexual

imposition during trial. The jury ultimately acquitted

Dr. Ahmed of thirty of the remaining fifty counts,

rendering not guilty verdicts on thirteen of the twenty-

four counts of sexual imposition, and seventeen of the

twenty-four counts of sexual battery. It convicted him

of cleven sexual imposition counts, seven sexual

battery counts, and of the two rape counts, which

involved a single patient, based on a theory that her

6

capacity was diminished. That patient testified for the

prosecution in its case-in-chief, but returned to the

stand as a witness for the defense, and recanted her

testimony.

At the time of the trial, and at the time Dr. Ahmed

allegedly committed the crimes, Ohio employed a

“presumptive” sentencing scheme: rather than giving

a judge unfettered discretion to impose a sentence

within the statutory range, the statutes required a

trial court to make certain findings before giving a

defendant a non-minimum, or a maximum or

consecutive sentence. A first offender such as Dr.

Ahmed was presumptively entitled to a minimum,

concurrent sentence of three years. Instead, the trial

court imposed maximum sentences on each of the

offenses (two of the sexual battery convictions merged

with the two rape convictions), and ordered the

sentences to be served consecutively, for a total

sentence of forty-five years.

Upon appeal, the court of appeals affirmed the

convictions, but vacated the sentences, holding that

the findings made by the trial judge were not sufficient

to overcome the presumption against maximum or

consecutive sentences, and remanded the matter for

resentencing. It should be noted that this was not a

case of the appellate court determining that the trial

judge had failed to make any findings; rather, the

appellate court determined that the findings the trial

judge did make were legally insufficient to support

maximum or consecutive sentences.

Prior to Dr. Ahmed’s resentencing, the Ohio

Supreme Court issued its decision in State v. Foster,

7

109 O.St.3d 1 (2006). The court held there that the

judicial findings required by the statutes in order to

impose more than minimum, maximum, or consecutive

sentences constituted judicial fact-finding in

derogation of a defendant’s Sixth Amendment right to

a jury trial, as explained in this Court’s ruling in

Blakely v. Washington, 542 U.S. 296 (2004). Asa

remedy, the court severed the portions of the statute

requiring those judicial findings.

The result was that a judge no longer had to make

any findings in order to impose more than minimum,

maximum, or consecutive sentences. At Dr. Ahmed’s

resentencing, that is precisely what occurred: the trial

judge again imposed maximum, consecutive sentences.

Appeal was once more taken to the court of appeals,

which affirmed the sentences in an unpublished

opinion announced on May 31, 2007, and journalized

on June 11, 2007. Dr. Ahmed then retained new

appellate counsel, who filed an appeal to the Ohio

Supreme Court, alleging, inter alia, that the

application of Foster to crimes allegedly committed

prior to the decision constituted a violation of

defendant’s due process rights against ex post facto

judicial rulings, and that the failure of prior appellate

counsel to raise that issue in the court below

constituted ineffective assistance. The Ohio Supreme

Court denied discretionary review. This Petition for

Writ of Certiorari follows.

8

REASONS FOR GRANTING WRIT

I. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE RETROACTIVE

APPLICATION BY JUDICIAL DECISION OF

THE ELIMINATION OF PRESUMPTIONS IN

FAVOR OF MINIMUM SENTENCES, AND

AGAINST MAXIMUM OR CONSECUTIVE

SENTENCES, TO A DEFENDANT

CONVICTED OF OFFENSES ALLEGEDLY

COMMITTED PRIOR TO THE DECISION,

VIOLATES A DEFENDANT’S DUE PROCESS

RIGHTS AGAINST EX POST FACTO

JUDICIAL DECISION-MAKING.

It is difficult to understate the effect of this Court’s

decision in Blakely v. Washington, 542 U.S. 296

(2004) upon state sentencing laws. Many, such as

Ohio’s, provided for “presumptive” sentences, under

which a defendant faced either an exact sentence or a

sentence within a specific range, and the sentencing

court was required to impose that sentence unless it

found certain facts sufficient to override the

presumption for the specified sentence. This Court’s

subsequent decisions, such as Cunningham ov.

California, 127 S.Ct. 856 (2007) make clear what the

Ohio Supreme Court acknowledged about Ohio’s

sentencing scheme in State v. Foster, 109 O.St.3d 1

(2006): that a system of presumptive sentencing which

depended upon judicial fact-finding to override those

presumptions could not survive Blakely.

Certiorari should be granted by this Court to

resolve the question precisely raised by this case:

whether the ex post facto application of Foster’s

9

remedy — essentially, abolishing those presumptions

and allowing a trial court unfettered discretion in

imposing more than minimum, maximum, and

consecutive sentences — violates the rights of a

defendant convicted of crimes which allegedly occurred

prior to Foster. While the immediate focus of the

Court’s review would be on Ohio’s sentencing laws, as

noted, a decision would provide clarity to other states

which employed the same type of presumptive

sentencing scheme.

At the outset, it is important to understand the

. Ohio system in effect at the time Dr. Ahmed allegedly

committed his crimes in 2001 and 2002. At that time,

as now, the statutory penalty for first-degree felonies

such as rape was a sentence of from three to ten years,

in yearly increments. The statutory penalty for third-

degree felonies such as sexual battery was a sentence

of one to five years, again in yearly increments.

A trial judge, however, was not free to impose a

penalty anywhere within that range. If the defendant

had never served a prison term before (Dr. Ahmed had

never been charged, let alone convicted, of a crime

before this), the judge had to make certain findings in

order to impose more than the minimum sentence:

that a minimum sentence “would demean the

seriousness of the crime” or “would not adequately

protect the public.” Similarly, the judge also had to

make certain findings in order to impose a maximum

sentence: that the defendant had “committed the

worst form[] of the offense” and that the defendant

“posel[d] the greatest likelihood of committing future

crimes.” Moreover, before imposing consecutive

sentences, the trial judge had to make additional

10

findings, such as that “consecutive sentences are not

disproportionate to the seriousness of the offender’s

conduct” and that “laJt least two of the multiple

offenses were committed as part of one or more courses

of conduct.”

In Blakely, this Court established that

“the ‘statutory maximum’ for Apprendi purposes

is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant. In

other words, the relevant ‘statutory maximum’

is not the maximum sentence a judge may

impose after finding additional facts, but the

maximum he may impose without any

additional findings.” 542 U.S. at 303-304.

(Emphasis in original).

Under Blakely, then, at the time he allegedly

committed his crimes, the maximum penalty Dr.

Ahmed faced — the maximum penalty which could be

imposed upon him without the trial court making any

additional findings - was a minimum, concurrent

sentence of three years. Any sentence beyond the

minimum, let alone maximum or _ consecutive

sentences, required judicial fact-finding that was

barred by Blakely.

The Ohio Supreme Court recognized this in Foster,

and as a remedy simply excised the portions of the

sentencing statutes which required fact-finding,

resulting in the elimination of the presumptions in

favor of minimum sentences and against maximum

and consecutive sentences. Thus, at the time Dr.

11

Ahmed was resentenced in 2006, he no longer could

claim the benefit of the presumptions which had been

in effect at the time he allegedly committed the crimes

for which he was convicted.

Dr. Ahmed contends that the _ retroactive

application of Foster to him, in the elimination of

sentencing presumptions to which he was otherwise

entitled, constitutes a violation of his rights to due

process.

The underlying principle against retroactive

application of the criminal laws is contained in Article

I. Section 10 of the Constitution: “No. . . ex post facto

Law shall be passed.” In Calder v. Bull, 3 US.

(Dali.) 386, 390 (1798), this Court defined the four

types of laws which would run afoul of that

prohibition. The one pertinent to this case is the third:

“Every law that changes the punishment, and

inflicts a greater punishment, than the law

annexed to the crime, when committed.”

As a result of the Ohio Supreme Court’s decision in

Foster, and its elimination of the presumptive

sentences to which Dr. Ahmed was entitled, he was

subjected to substantially greater punishment than at

the time he allegedly committed his crimes.

Dr. Ahmed’s situation in this respect is similar to

that of the defendant in this Court’s decision in Miller

v. Florida 482 U.S. 423 (1987). The State of Florida

had enacted a comprehensive sentencing scheme

which specified range of presumptive sentences for

each offense. At the time the defendant committed his

12

crime of sexual battery, the statutes provided a

presumptive sentence of 34% to 4% years. By the time

he was convicted and sentenced, however, the

presumptive sentence had been increased to 5% to 714

years. The Florida Supreme Court upheld the trial

court’s imposition of the new sentence, holding that

there was no ex post facto violation because “the

presumptive sentence established by the guidelines

does not change the statutory limits of the sentence

imposed for a particular offense.” State v. Jackson,

478 So. 2d 1054, 1056 (Fla. 1985).

On appeal to the U.S. Supreme Court, this Court

first determined that

“to fall within the ex post facto prohibition, two

critical elements must be present: first, the law

‘must be retrospective, that is, it must apply to

events occurring before its enactment’; and

second, ‘it must disadvantage the offender

affected by it.” 482 U.S. at 430.

The Court unanimously concluded that defendant

met both those criteria. The change in the law had

obviously been applied retroactively, and there was no

difficulty in concluding that the change in the

sentencing scheme “disadvantaged” the defendant: it

increased his presumptive sentence by two to three

years.

The same argument applies here: Dr. Ahmed was

entitled to a presumptive sentence of minimum,

concurrent terms, and the Foster’ decision’s

elimination of that entitlement operated

retrospectively to his disadvantage.

13

The Florida change resulted from legislative action,

while Foster was of course a judicial decision. The

Ohio Supreme Court’s ruling in Foster does not

directly implicate the Ex Post Facto Clause, since that

provision is a only a limitation upon the powers of the

legislature, not the judicial branch. Marks v. United

States, 430 U.S. 188, 191 (1977).

This Court has held, however, that the retroactive

application of a judicial decision may be similarly

prohibited because of due process considerations. In

striking down the retroactive application of an

interpretation of a criminal statute by the state’s

highest court, this Court ruled in Bouie v. Columbia,

378 U.S. 347 (1964),

“The Due Process Clause compels the same

result. .. where the State has sought to achieve

precisely the same effect by judicial construction

of the statute. While such a construction is of

course valid for the future, it may not be applied

retroactively, any more than a legislative

enactment may be, to impose criminal penalties

for conduct committed at a time when it was not

fairly stated to be criminal.” 378 U.S. at 362.

The protections afforded by due _ process

considerations against the retroactive application of

judicial decisions are not necessarily co-extensive with

the protections of the Ex Post Facto Clause against the

retroactive application of criminal statutes. The

distinction in those protections was defined by this

Court in Rogers v. Tennessee, 532 U.S. at 451, 462

(2001), in which this Court stated,

14

“a judicial alteration of a common law doctrine

of criminal law violates the principle of fair

warning, and hence must not be given

retroactive effect, only where it is ‘unexpected

and indefensible by reference to the law which

had been expressed prior to the conduct in

issue.” (Quoting Bouie, 378 U.S. at 354).

Thus, the proper focus is on the warning and notice

a defendant has in the possibility of a judicial decision

retroactively enhancing the criminality of his conduct

or the penalty to be imposed for it. United States v.

Lanier, 520 U.S. 259, 266 (1997) (“Due process bars

courts from applying a novel construction of a criminal

statute to conduct that neither the statute nor any

prior judicial decision has fairly disclosed to be within

its scope.”)

Had Dr. Ahmed’s alleged crimes been committed

after Blakely was decided, a legitimate argument

might be advanced that Blakely gave just such notice.

The 6" Circuit concluded as much with regard to an

argument on the retroactive application of Booker v.

United States, 543 U.S. 220 (2005):

“While it is true that precisely what effect

Blakely would have on the Guidelines was not

known, Blakely was decided before defendant

committed the robberies here. Thus, it would

not have been a leap of logic to expect the

Supreme Court to apply Blakely to the

Guidelines in some manner.” United States v.

Barton, 455 F.3d 649, 653-654 (6th Cir. 2006).

15

There can be no such argument here, however; Dr.

Ahmed’s alleged crimes occurred several years before

Blakely was decided, and while this Court’s earlier

decisions in Apprendi and Ring served as the

groundwork for Blakely, it would be difficult to argue

that more than a few legal scholars anticipated the

Blakely decision, let alone that the average individual

had “fair warning” of it.

Moreover, the change wrought by Foster

specifically impacted Dr. Ahmed. As noted, his

original sentence was vacated not because the judge

failed to make any findings justifying a maximum,

consecutive sentences, but because the findings the

trial judge did make didn’t warrant maximum,

consecutive sentences. Had it not been for the Foster

decision, it is quite possible that the trial judge would

have been bound to give Dr. Ahmed no worse than

non-maximum, concurrent sentences. Because of

Foster, the trial court gained unfettered discretion to

sentence Dr. Ahmed to maximum, consecutive

sentences of 45 years.’

In summary, due process mandates that a judicial

decision nullifying the presumptive sentences

contained in Ohio’s statutes cannot be retroactively

applied to Dr. Ahmed so as to deny him of the benefit

of those statutes. The Ohio Supreme Court’s

retroactive elimination of the presumptive sentencing

Ohio law does not provide for parole or any other method of early

release for someone sentenced to more than ten years in prison.

Dr. Ahmed’s scheduled release date from prison is February of

2049, when he will be 102 years old.

16

in Foster disadvantaged Dr. Ahmed in the same

fashion that the South Carolina Supreme Court’s

retroactive expansion of the criminal trespass statute

disadvantaged the defendants in that case.

Il. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER APPELLATE COUNSEL IS

INEFFECTIVE FOR FAILING TO RAISE

SENTENCING ERRORS ON APPEAL WHEN

THE FAILURE TO PROPERLY PRESERVE

THE ISSUE RESULTS IN THE AFFIRMANCE

OF THE MAXIMUM POSSIBLE SENTENCE.

As noted, prior appellate counsel did not raise the

due process violation inherent in the retroactive

application of Foster to Dr. Ahmed’s case. That issue

was raised for the first time by present appellate

counsel, in the Memorandum in Support of

Jurisdiction seeking discretionary review by the Ohio

Supreme Court, which was denied. Ordinarily, the

failure to raise an issue on appeal in the lower court

constitutes a waiver of that issue on further appeal.

The failure to raise the issue below does not

constitute a waiver, however, where prior appellate

counsel was ineffective in failing to raise it.?, The test

for ineffective assistance of counsel enunciated by this

Court in Strickland v. Washington, 466 U.S. 668

* Present appellate counsel also asserted the issue of the

ineffective assistance of prior appellate counsel, in their failure to

raise the due process issue, in the aforementioned Memorandum

in Support of Jurisdiction seeking discretionary review by the

Ohio Supreme Court.

ere

i

17

(1984) also pertains to appellate counsel. Roe v.

Flores-Ortega, 528 U.S. 470 (2000).

This does not impose upon appellate counsel a duty

to raise all non-frivolous assignments of error. Jones

v. Barnes, 463 U.S. 745 (1983). A defendant may be

able to establish constitutionally inadequate

performance, however, by demonstrating that counsel

omitted significant and obvious issues while pursuing

issues that were clearly and significantly weaker.

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

Essentially, the procedure for resolving that question

is that outlined in Gray v. Greer, 800 F.2d 644, 646

(7th Cir. 1985):

“When a claim of ineffective assistance of

counsel is based on failure to raise viable issues,

the district court must examine the trial court

record to determine whether appellate counsel

failed to present significant and obvious issues

on appeal. Significant issues which could have

been raised should then be compared to those

which were raised. Generally, only when

ignored issues are clearly stronger than those

presented, will the presumption of effective

assistance of counsel be overcome.”

Prior appellate counsel, in their Brief to the Ohio

Court of Appeals, made two sentence-related

arguments. (A third assignment of error related to the

application of bond money to fines and costs.) The sum

of counsel’s argument was that while the Foster

remedy “gave Trial Courts [sic] the ability to sentence

at any level, maximum sentence, consecutive sentence

or both, without stating reasons,” Dr. Ahmed’s

18

\ resulting 45-year sentence, “violates the Eighth

Amendment” and constituted “an ‘exceptional

sentence’ based upon facts neither admitted nor found

by a jury.” Brief at 11.

These arguments represent a complete misreading

of Blakely and its progeny. An “exceptional sentence”

under Blakely is one in which the trial court employs

judicial fact-finding to impose additional prison time,

over and above what the jury verdict would allow.

Foster permitted trial courts to impose maximum

penalties without any fact-finding. Whether this is

good policy might be subject to debate, but there is

nothing in this Court’s cases which suggest that this is

constitutionally impermissible, let alone that it is an

“exceptional sentence” under Blakely.

Moreover, the arguments are wholly at odds with

prevailing Eighth Amendment jurisprudence, which

limits consideration of that issue to single sentences,

as opposed to the effect of sentences for multiple

offenses. United States v. Aiello, 864 F.2d 257, 265

(2d Cir. 1988) (“Eighth amendment analysis focuses on

the sentence imposed for each specific crime, not on

the cumulative sentence”); Pearson v. Ramos , 237

F.3d 881, 886 (7 Cir. 2001) (“every sentence * * *

must be treated separately, not cumulatively, for

purposes of determining whether it is cruel and

unusual.”)

To a large extent, this Court’s resolution of the first

argument raised in support of granting certiorari is

outcome-determinative for the second argument: if

this Court concludes that the retroactive application of

the Foster remedy violates the due process rights of

19

Dr. Ahmed, then it necessarily follows that prior

appellate counsel was ineffective in not asserting that

argument, and instead relying on “issues that were

clearly and significantly weaker.” Gray v. Greer,

supra. It is respectfully submitted that just such a

conclusion is warranted in this case.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

submits that this Court should grant the Petition for

Certiorari.

Respectfully Submitted,

Michael C. Hennenberg*

Of Counsel

Dinn, Hochman & Potter, LLC

5910 Landerbrook Drive, Suite 200

Mayfield Heights, OH 44124-6500

(440) 544-2000

* Counsel of Record for Petitioner