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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0573%3A1. Public record. Not legal advice.