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Jackson v. Smith

United States Court of Appeals, Sixth Circuit

March 7, 2014

MORRIS JACKSON, Petitioner-Appellant,
v.
KEITH SMITH, Warden, Respondent-Appellee

Argued June 19, 2013.

Petition for certiorari filed at, 06/05/2014

Page 207

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:09-cv-1467--Solomon Oliver, Jr., Chief District Judge.

ARGUED:

Peter A. Patterson, UNIVERSITY OF CINCINNATI APPELLATE CLINIC, Cincinnati, Ohio, for Appellant.

Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF:

Colter L. Paulson, SQUIRE SANDERS LLP, Cincinnati, Ohio, for Appellant.

Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: GILMAN, GRIFFIN, and WHITE, Circuit Judges. GRIFFIN, J., delivered the opinion of the court in which GILMAN, J., concurred, and WHITE, J., concurred in part. WHITE, J., delivered a separate opinion concurring in part.

OPINION

Page 208

GRIFFIN, Circuit Judge.

Morris Jackson appeals the denial of his habeas corpus petition filed under 28 U.S.C. § 2254, in which he claims that the consecutive sentences imposed on his Ohio convictions for aggravated robbery and attempted kidnapping violate the Double Jeopardy Clause's ban on multiple punishments for the same offense. We affirm.

I.

In November 2005, an Ohio jury convicted Jackson of aggravated robbery and attempted kidnapping, among other crimes. See Ohio Rev. Code § § 2911.01(A)(1) (aggravated robbery), 2905.01(A)(2) (kidnapping), 2923.02(A) (attempt). The factual basis for these convictions involved an attempted bank robbery. Driving a stolen vehicle and wearing masks to cover their faces, Jackson and a man named Daniel Ivery arrived at the National City Bank in Canton, Ohio. The two men approached the bank but were confronted by an off-duty Canton police officer working security for the bank. The officer drew his weapon and yelled " police!" several times. Following an exchange of gunfire between Ivery and the officer, Jackson ran across the street towards a restaurant. When he reached the parking lot, he approached Sara Bineger, who was seated in the driver's seat of her vehicle, waiting to pull out

Page 209

of the lot. Jackson opened the car door, pointed a gun at Bineger, and told her to " scoot over." When she hesitated, Jackson tried to sit on her, at which point Bineger escaped through the passenger door. Jackson then drove away in Bineger's car.

At sentencing, Jackson argued that the offenses of aggravated robbery and attempted kidnapping were allied offenses of similar import under Ohio Revised Code § 2941.25 and asked the court to merge the kidnapping conviction into the robbery conviction. The court denied the request, finding the offenses to be of dissimilar import. Applying the Ohio Supreme Court's then-applicable framework laid out in State v. Rance, 85 Ohio St. 3d 632, 1999 Ohio 291, 710 N.E.2d 699 (Ohio 1999), overruled by State v. Johnson, 128 Ohio St. 3d 153, 2010 Ohio 6314, 942 N.E.2d 1061 (Ohio 2010), the trial court compared the statutory elements of the offenses in the abstract and found that " one could [commit] the offense of kidnapping without committing the offense of aggravated robbery and vice versa." The court imposed consecutive sentences of ten years on the aggravated robbery offense and five years on the attempted kidnapping offense. The Ohio Court of Appeals affirmed the trial court's rejection of Jackson's merger argument, relying on the unpublished decision in State v. McCoy, 2006-Ohio-56, 2006 WL 39100 (Ohio Ct. App. 2006), which held that aggravated robbery and kidnapping were offenses of dissimilar import. The Ohio Supreme Court denied leave to appeal.

Jackson petitioned for habeas relief in the district court. As relevant here, Jackson claimed that punishing him for aggravated robbery and attempted kidnapping violated his rights under the federal Double Jeopardy Clause. The district court denied relief on this claim ...


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