NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0541n.06 No. 12-3996

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT DANTE P ERSON, P etitioner -Appellee,

v. MICHAEL SHE ETS , Respondent-Appellan t. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges. CLAY, Circuit Judge. Petitioner, an inm ate in Ohio, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)( 1). The d i s t ri ct co u rt g rante d that petition in part on the basis of the Double J eopar dy Clause, U.S. Const. amend. V, beca use it found that the State of Ohio had sentenc ed Petitioner twice for crimes that the state court was constitutionally require d to merg e for the purpose of sentenc ing. The district court direc ted the State of Ohio to re- sentenc e Petitioner. The state appea ls, arguing that the district court err ed in its interpre tation of the Double J eopa rdy C l au s e under g overning Ohio law. For the following rea sons, we REVERSE the district co u rt ’s decision to g rant the writ.No. 12-3996 BACK GR OUND A. F acts The convictions leading to the instant petition stem from an incident that took place in ear ly 2006. As the Ohio Court of Appe als descr ibed the incident: 1 Cincinnati Police Offic ers Kristina Hol tmann and L aure en Smit h wer e on routine patrol in the early morning hours of J anuar y 11, 2006. The office rs passed a vehicle with windows that appea red to be too darkl y t i nted. Additionally , the rea r license plate was not illumi nated. The office rs activate d their overhe ad lights and m ade a U-turn. The vehicle stopped and backe d into a drivewa y befor e the police u n i t rea ched it. Offic er Smit h approa ched the driver’ s side and Offic er Holtmann approa ched the passeng er side. The driver of the car , Br y an Caulton, had an outstanding war

rant. Offic er Smit h arr ested Caulton and place d him in the backse at of the police car . Whil e Offic er Smit h was dealing with Caulton, Offic er Holtmann asked Person, who was in the front passeng er seat, for identification. He did not have identification, but g ave Offic er Holtmann his name and date o f b i rth. Ba sed on previous encounte rs with Person, Offic er Holtmann believed that he had g iven a false last name and asked him to exit from the vehicle. After he emer g ed, Offic er Holtmann order ed him to place his hands behind his back. Person turned, produce d a handgun, and shot Offic er Holtmann in the fac e. Person immediately fled. As he was runn i n g, Offic er Holtmann saw him turn and point his gun at her. At this point, she and Of fi ce r Smit h returne d fire. One of the shots struck Person in the leg , but he was a ble to continue fle eing

. As office rs wer e establishing the crime scene , a witness came forwa rd and told police that Person was in the baseme nt of a near by residenc e. A perimete r was established around the house until a S.W .A.T. unit could arrive. Police then beg an a sy stematic sear ch of the house, discovering Person in the baseme nt. After Person was taken into

Under 28 U.S.C. § 2254(e) (1), “a deter mination of a fac tual issue made by a State court shall 1 be presumed to be cor re ct. The applicant shall have the burden of rebutting the presumption of corr ectne ss by clea

r and convincing evidenc e.” Petitioner has not prese nted evidenc e that demonstrate s an y er ror in the Ohio court’s decision and acc ording ly , these fac ts are presumed corr ect. See Thompson v . Bell , 580 F.3d 423, 434 ( 6th Cir. 2009). 2No. 12-3996

custody , he was asked what he had done with the handgun. He told an office r to “g o fuck [himself].” (R. 10, Report and Recommendation, Mar. 30, 2011, at 2.) (quoting State v. Person , 881 N.E.2d 924, 926–27 (Ohio Ct. App. 2007)). B. P roce dural Hi story Petitioner was indicted on J anuar y 20, 2006. The nine-c ount indictment char g ed Petitioner with two counts of attempted murder with a firear m specific ation, Ohio Rev. Code § 2923.02(A), three counts of felonious assault with firea rm specific ations i n v i o l at i o n of Ohio Rev. Code § 2903.11(A)( 1)–(2), an d o ne count eac h of carry ing a conceale d wea

pon in violation of Ohio Rev. Code § 2923.12(A), car

rying a wea

pon while under a disability in v i o l at i o n of Ohio Rev. Code § 2923.13(A)( 3), poss ession of cocai n e with a firear m specific ation in violation of Ohio Rev. Code § 2925.11(A), and burg lary in violation of Ohio Rev. Code § 2911.12(A)( 2). He was tried by jury in Ohio state court on all char g es ex cept the wea pons-under -disability char g e, whi ch was tried by the bench. After the state prese nted its case , the trial court acquitted Petitioner on the burg lary char g e, as well as on one of the attempted murder char g es. ( Id. ). After the trial, the jury convicted Petitioner on the two counts of felonious assault with a firea rm specific ation pursuant to Ohio Rev. Code. § 2903.11(A)( 1) & (2), as well as the cha rg es of c arr

ying a conce aled we apon and ha ving a

wea pon while under a disability

. Petitioner was sent en ce d o n J u l y 13, 2006. At sentenc ing, the
court found that the two felonious assault sentenc es shou l d run consec utively , and sentenc ed Petitioner to a term of thirty -three y ear s and six months imprisonment, based on two consec utive teny ear terms for the felonio u s as saults, five y ear s for the wea pon while under a disability char g e,

3No. 12-3996

eig hteen months for the conce aled weapon charg e, and seven y ear s for the fi re ar m s p ecifications, which we re me rg ed at se ntencing

. Petitioner appea led to the Ohio Court of Appea ls, wher e he raised the claim that “[t] he trial
court err ed by imposing consec utive s en t ence s on the felonious assault.” (Report and Recommendation at 3.) The court denied Petitioner’s appea l, over the dissent of J udg e Painter. The
court found that under State v. Payne , 2007 WL 1859302 (Ohio Ct. App. Dec

. 21, 2007), “fe lonious assault in violation of R.C. 2903.11(A)( 1) and felonious assault in violation of R.C. 2903.11(A)( 2)

are not allied o ff

en s es. Ba sed upon our decision in Payne , we overr ule [Defenda

nt’s] third assig nment of err or.” Person , 881 N.E.2d 924, 929 (Ohio Ct. App. 2007). J udg e Painter dissented, writing that: “[a]s I said when dissenting in Payne , ‘One gun, one shot, one felonious as s au l t.’ Nothing has chang ed since then; in fac t, nothing has chang ed since the Double J eopar dy Clauses of the Ohio and the United S t at es C o n stitut ions beca me eff ective, except for misguided and bizarre Ohio court decisions that defy logic , law, and common sense.” Id. at 932. (interna l citation omitted). Whil e Petitioner did not timely file his appea l with the Ohio Supreme Court, he was permitted to file an appea l, in which he raised the claim that the sentenc e was improper beca use the assault convictions wer e allied offe nses that should have been merg ed for the purpose of sentenc ing. The Ohio Supreme Court aff irmed t he conviction with a sum mary order , which st ated t h at i s was aff irming the court of appea ls “on the authority of State v. Brown , 895 N.E.2d 149 (Ohio 2008) .” State v. Person , 898 N.E.2d 9 6 1 , 9 6 1 (Ohio 2008). Petitioner’s motion for rec onsideration was denied without opinion.

4No. 12-3996

Petitioner then fil ed in fe dera l court, askingthe district court to g rant him a writ of habeas corpus. He raised three g rounds for the writ: that his du e proce ss rig hts under the Fifth and Four teenth Amendments had been violated beca use the trial court sentenc ed him twice for the same offe nse; that his equal protection rights had been vi olated becaus e h e wa s sentenc ed twice for the

same offe nse, and that his right to a fair trial under the Six th Amendment had been violated beca use t h e trial court had permitted the state to proce ed despite discovery violations. The distric t co u rt ref err ed the case t o M agis trate J udg e Kar en L itkovitz for a repor t and rec ommendation. The

m agistrate rec ommended that the district court deny the petition on all g rounds except one. T h e mag istrate rec ommended g ranting the petition on the basis of the Double J eopar dy Clause, finding that Petitioner had been sentenc ed twice for the same offe nse under Ohio merg er law. The district
court adopted the repor

t and rec ommendation in its entirety

. The state of Ohio now appea ls, asking this Court t o overturn the district court’s grant of the writ. ANALYSIS A. Stand ard of Review On ap p ea l o f a g rant of a writ of habea s corpus, “we revie w the district court’s leg al conclusions de novo and its fac tual finding s for clea r err or.” Hanna v. Ishee , 694 F.3d 596, 605 (6th Cir. 2012) (citing Smith v. Mitchell , 567 F.3d 246, 255 (6th Cir. 2009)). The district court’s finding s of fac t a re clea rly err oneous when “we are left with the definite and firm conviction that a mistake h as b ee n co m mitted.” United St ates v. C anipe , 569 F.3d 597, 600 (6th Cir. 2009) (citing United States v. Ellis , 497 F.3d 606, 611 ( 6th Cir. 2007)).

5No. 12-3996

B. The AEDP A Under the Antiterror ism and Effe ctive Death Penalty Act of 1996 (AEDPA) , a fede ral court may not g rant a writ of h ab ea s co rp u s with respe ct t o any claim adjudicated on the m erits i n state court unless the state adjudication: (1) resulted in a decision t h at wa s contra ry to, or involved an unrea sonable application of, clea

rly established fede ral law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonab l e d et er m ination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 2 8 U. S .C. § 2254(d). A fede ral court may not issue the writ “simply beca use it conclude s in i t s independe nt judg ment that the rele vant state-c ourt decision applied clea rly established fede ral law

err oneously or incorre ctly

. Rather, that application must also be unrea sonable.” W illiams v. Taylor , 529 U.S. 362, 411 (2000). “[C] lear ly established fede ral law, as deter mined by the Supreme Court of the United States” ref

ers to the holdings, rathe r than dicta, of the decisions of the Supreme Court. Howes v. Fie lds , --- U.S. ---, 132 S. Ct 1181, 1187 (2012) (quoting W illiams , 529 U.S. at 362). A dec ision is “contr ary to” clearly established federa l law where “the st ate court arr ives at

a conclusion opposite to that rea ched by this Court on a question of law

. . . [or] confr onts fac ts that

are materia lly indisti nguishable from a rele vant Supreme Court prec edent an d ar ri ves at a [t he opposite] result.” W

illiams v. T

aylor , 529 U.S. at 405. Fur thermore , an unreasonable application
must be distinguished from an incorre ct application. Harrington v. Richter,

--- U.S.

--- , 131 S. Ct. 770, 785 (2011) (quoting W illiams at 410). A state court decision which is mere ly incorre ct, rathe r than unrea sonable, is still e ntitled to defe renc e by a fede ral court in a habea s proce eding

. Id. As a

6No. 12-3996

result, the m ore g ener al the rule, the g reater the leewa y acc orded to a state court’s decision under fede ral ha beas r eview. Id. at 786. In addition, fede ral courts have limit ed authority to r eview a state court’s interpre tations of its own state’s laws; whe re the highe st court in a state has interpre ted t hat state’s statute, a fede ral
court must defe r to the state court’s interpre tation. Volpe v. Trim , 708 F.3d 688, 697 (6th Cir. 2013). “Thus, for purposes of double jeopar dy analy sis, once a state court has det er m i n ed that the state leg is l at u re intended cumulative punishments, a fede ral habea s court must defe r to that deter mination.” Banner v. Davis , 886 F.2d 777, 780 (6th Cir. 1989); accord Volpe , 708 F.3d at 697. The United States Supreme Court has cl arifie d that for the purposes of habea s, the rele vant “tempora l cutoff” for whether the law is clea rly established is “whe n direc t state appea ls have been exhausted and a petition for writ of cer tiorari from [t he United States Supreme Court] has become time barre d or has be en disposed of.” Gree ne v. F isher , --- U.S. ---, 132 S. Ct. 38, 44 (2011). 2 C. Double Jeopardy 3 The Double J eopar dy Clause of the Fifth Amendment to the United States Constit ution states that “[n] o person . . . shall

. . . be subject for the same offe nse to be twice put in jeopar dy of life or limb

. . . .” The clause was incorpora ted ag ainst the states through the enac tment of the Four teenth

The Supreme Court of Ohio enter ed its judgme nt on D ece mber 9, 2008. A “petition for a 2 writ of cer

tiorari to revie w a judgme nt in any case , civil or criminal, enter ed by a state court of last resor t

. . . is timely when it is filed with the Clerk of this Court within 90 day s afte r entry of the judgme nt.” Sup. Ct. R. 13. Acc ording ly , the judgme n t beca me final for the purposes of habea s revie w on Marc h 9, 2009. The district c o u

r t a lso addre ssed the question of whether Petitioner’s claim under the Double 3 J eopa rd y Clause was fairly prese nted t o the s tate court, and concluded that it was. The state does not pursue this argument befor e this Court. 7No. 12-3996

Am en d m ent. Benton v. Maryland, 395 U.S. 784, 794 (1969). I t is clea rly established law t h at a defe ndant may not be subject to multipl e punishments unless the state leg islature intended to so punish. Missouri v. Hunter , 459 U.S. 359, 367–68 (1983). In contra st to most habea s claims, which

are based entirely on fede ral constitutional rig hts, a claim under the Double J eopar dy Clause require s analy sis of state law; beca use the state leg islature has the authority to define and punish crimes, the definition of multipl e punishments is depende nt on the leg islative intent of the state g overnme nt. Volpe , 708 F.3d at 697. Ohio has enac ted a statute reg arding multipl e punishments. I t states, “[w]here the same conduct by defe ndant can be construed to constitute two or more allied offe nses of simil ar import, the indictment or information may contain counts fo r al l such offe nses, but the defe ndant may

be convic ted of only

one.” O hio. Rev. Code § 2941.25(A). There is a long history of interpre tation of this statute by the Ohio Supreme Court. In State

v. Rance , 710 N.E.2d 699 (Ohio 1999), the Ohio Supreme Court fo u n d t h at a defe ndant could be
sentenc ed separ ately for convictions for involuntary manslaug hter and ag gravated robber y , without offe nding double-jeopa

rdy principles. Id. at 702. In that case , the Ohio Supreme Court stated that “[t] he applicable t es t for deciding [whether two crimes are of simil ar import] is as follows: I f the elements of the crimes corr espond to such a deg ree that the commission of one crime will r esult in the commission of t he other, the crimes are allied offe nses of similar import.” Id. at 703 (interna l quotation marks and citations omitted). I f the crimes are allied offe nses, then a court must proce ed
to the second step, and revie w “the defe ndant’s conduct

. . . to deter mine whether the defe ndant can be convicted of both offe nses. I f t he court finds either t h at the crimes wer e commit ted s epar ately

8No. 12-3996

or that there was a separ ate animus for eac h crime, the defe ndant may be convicted of both offe nses.” State v. Blanke nship , 526 N.E.2d 816, 817 (Ohio 1988) (empha sis in original). In Stat e v. Cabrales , 886 N.E.2d 181 (Ohio 2008), the Ohio Supreme Court revisited the R ance test. In that case , the court found that “[c]ourts have strug g led applying Rance ’s ab s t ra ct elements-c omparison test.” Id. at 185. I t held that Rance had been “misinterpre t ed , ” an d t h at

“Rance [does not] mandate that the elements of compar ed o ffenses must exactly alig n for the offe nses to be allied offe nses of simil ar import under R.C. 2941.25(A).” Id. at 186. The court went

on to find that in the abstract , t h e el ements of the defe ndant’s two convictions for possession of control l ed s ub s tance s and traff icking in controlled substances wer e allied offe nses, and that the defe ndant was motivated by “a single animus: to sell [t he drug s].” Id. at 188. Acc ording ly , it found that he could not be c onvicted of both off enses. The Ohio court further clarified its definition of animus for the purposes of double jeopar dy in State v. Brown , 895 N.E.2d 149 (Ohio 2008), its most rec ent interpre tation of this statute. In that

case , the defe ndant had g otten into an argument with her boy friend. The argument conclude d when the defe ndant stabbed her boy friend with a serr ated steak knife. Brown , 895 N.E.2d at 151. She was then char g ed with two counts of felonious assault and one count of domestic violence, and the jury

was additionally instructed on the included offe nse of ag g ravated assault. The d ef en dant was ultimately acquitted on the felonious assault char g es, b u t convicted of two counts of ag g ravated assault under alternate theories in Ohio Revised Code §§ 2903.12(A)( 1) and (A)( 2). Id. at 151–52. On appea l, the Ohio Supreme Court found that the defe ndant could not be convicted of both char g es of ag g ravated assault. Whil e it was permissible for prosec utors to prese nt alterna te theor i es of

9No. 12-3996

ag g rava ted assault under Ohio Rev. Code § 2903.12(A)( 1) & (A)( 2), t here had only been one act, and ac cording ly , the two offe nses had to have been c ommitt ed with the same animus. D. P etitioner ’s Claim Under the Double Jeopardy Clause Turning to the instant case , it was not unrea sonable for the Ohio court to find that Petitioner’s
two conviction s could have been separ ate offe nses under the Ohio Revised Code. Petitioner was convicted of two counts of felonious assault. Under Oh i o statutory law, “[n] o person shall knowing ly do either of the following : (1) Cause s er i o u s phy sical harm to another or to another ' s unborn; (2) Cause or attempt to cause phy sical harm to a nother or to a

nother' s unborn by means of

a deadly wea

pon or dang erous ordnanc e.” Ohio Rev. Code § 2903.11(A)( 1)–(2)

. As the Ohio court found in Brown , the subdivisions “set forth two m eans of committing the same offe nse—ca using serious phy sical harm to another , or causing or attempting to cause phy si ca l h arm by means of a deadly wea

pon . . . .” Brown , 895 N.E.2d at 156. There fore the two means are allied offe nses; they 4 repr esent the same offe nse, and show the intent of the leg islature to protec t people from phy sical harm. Id. But that o n l y s hields a defe ndant from punishment on double jeopar dy grounds if his conduct shows that he committed the two acts with a sing le animus. In this case , Petitioner shot Offic er Holtmann in the fac e. As he ran awa y , he pointed his g un at Offic er Holtmann a second time. Under Ohio law, pointing a gun—if there is evi d en ce of an actor ’s intention—can constitute felonious assault. S ee State v. Seiber , 564 N.E.2d 408, 420–21

In Brown , the court i nterpre ted Ohio’s ag gravated assault statute, Ohio Rev. Code 4 § 2903.12(A)( 1)–(2) , as op p o s ed t o the felonious assault statute at issue in this case , id. § 2903.11(A)( 1)–(2) , but the particula r subdivisions pertinent to this point are identical under both statutes. 10No. 12-3996

(Ohio 1990); State v. Br o o ks , 542 N.E.2d 636, 642 (Ohio 1989) (“The act of pointing a deadly

wea pon at another , without additional ev i d en ce reg arding the actor ’s intention, is insufficient evidenc e to convict a defe ndant of the offe nse of ‘f el o n i o u s assault’ as define d by R.C. 2903.11(A)( 2)”) ; State v. Busa , 1990 WL 40280 at *2 (Ohio Ct. App. Apr. 5, 1990). And intention

can be inferr ed from acts that themselves constitute crime s , without requiring merg er of the two offe n s es. Seiber , 564 N.E.2d at 421. Pointi ng a weapon combined with implicit threats has been held to constitute assault. See, e.g. , State v. Gree n , 569 N.E.2d 1038, 1041 (Ohio 1991) (holding that jury could find intent wher e “def endant held a rifle aimed at Mong old's head. The rifle was loaded, the hammer was cocke d

. . . Moreove r, at t h e i n s tant defe ndant positioned his wea pon in the direc tion of the office rs, he shouted, ‘I f y ou don’t have a war rant g et the fuck out of my house.’” ). Petitioner had alre ady fired his gun, hitting a police office r in the fac e. He had turned to flee ,

an d wh i l e doing so, looked back and pointed his gun at the office r ag ain. Eac h of these fac t s ar e sug g estive of his intent to fire ag ain; acc ording ly , there was sufficie nt evidenc e of intent for a court to find that pointing his gun was itself a felonious assault. The court could have found that his first shot was int ended to injure the offic er, a nd that his second wa s part of a n intent to flee , or t hat hi s first shot was motivated by an attempt to esca pe, while the s econd attempt to shoot was based on ang er at the office rs having fired on him. There fore it was not an unrea sonable application of Ohio law, as established in the Brown decis i o n , t o fi nd that Petitioner acte d with a separ ate animus to support eac h of the two counts of felonious assault, beca use there is no clea

rly established law that states that the two ac ts nece ssarily had a sing le animus.

11No. 12-3996

The mag istrate judge identified a signific ant problem with the decisions of the Ohio courts: while the court of appea ls decide d the case on the basis of Payne , State v. Person , 881 N.E.2d 924, 929 (Ohio Ct. App. 2007), the Supreme Court of Ohio aff irmed the c ase “on the authority of State v. Brow n .” State v. Person , 120 Ohi o St.3d 323, 323 (2008). But the Brown decision overturned the prior holding in Payne that the offe nses under Ohio Rev. Code 2903.11(A)( 1) & (2) are not allied offe nses. See Brown , 895 N.E.2d at 150–51. It seems inconsistent f or the Ohio Supreme Court to uphold the application of Ohio’s consec utive sentenc ing law on the basis of Brown , when the Brown decision expli citly reve rsed the Payne decision on this point o f l aw . T h u s, the mag istrate judge conclude d that the Ohio Supreme Court’s decision was an objectively unrea sonable application of fede ral law beca

use it incorre ctly applied its own prec edent on state legi s l ati ve intent. Whil e we ag ree with the m ag istrate judge t h at the decision of the Ohio Supreme Court is worrisome, “[o] ur task is not to deter

mine whether the state court rea ched the corr ect outcome, but rathe r to deter mine whether the court’s application of clea rly established fede ral law is objectiv ely unrea sonable—‘a substantially

highe r threshold.’” Here ford v. W arren , 536 F.3d 523, 527 (6th Cir. 2008) (quoting Schriro v. Landrigan , 550 U.S. 465, 473, 127 S. C t. 1933, 1939 (2007)). Acc ording ly , while we find the reasoning of t he Ohio court troubling, i t does not g ive rise
to a g rant of habea s relief

. Under the AEDPA this Court revie ws the last rea soned state court decision. The last rea soned state court decision was the Supreme Court of Ohio’s decision in State

v. Person , 898 N.E.2d 961, 961 (Ohio 2008). See Cullen v. Pinholster , 563 U.S.

--- , 131 S. Ct. 1388, 1402 (2011) (“Sec tion 2254(d) applies even wher e there has b ee n a summary denial.”)

. That decision aff

irmed the judgme nt of the Ohio Court of Appea l s , b u t s ubstitut ed its own rea soning.

12No. 12-3996

Even when a state court does not provide analy sis, this Court must show signific ant respe ct to state court de cisions: Even in the case o f a s ummary denial, when the s tate court has not fully explained the rationale for its decision, t h e revie wing “habe as court must deter mine what arguments or theories could have supported the state court' s d ec i s i o n ; and then it must ask whether it is possible [that] fairminded jurists could di sag ree that those arguments or t heorie s are inconsistent with the hol d i ng in a prior [S upreme Court] decision.” Gagne v. Booke r , 680 F.3d 493, 514 (6th Cir. 2012) (en banc) (quoting Pinholster , 131 S .Ct. at 1402) (e mphasis added)

. In this c ase, the appar ent contra diction be tween the intermediate appellate court’s decision that the two offe nses are not allied and the Ohio Supreme Court’s decision based on Brown can be

rec onciled by ref

ere nce to the second part of the Brown analy sis: was there a separ ate animus behind both crimes? Whil e the Brown decision reve rsed Payne on the question of whether Ohio Rev. Code § 2903.11(A)( 1) & (2) are allied offe nses, it did not find that the two crimes must merg e in all case s. Be cause the court in Payne found that the two offe nses wer e not allied, it never rea ched the question of whether one could commit the crimes with a separ ate animus. And there is no clea rly established law sug g esting that these two acts are nece ssarily committed with a single animus. I f any thing, the dissenting opinion in this case ’s decision befor e the Ohio Court of Appea ls, which criticized a part of the Payne decis i o n t h at Brown did not overr ule, seems to sug g est quite the opposite: that it is clea rly established that one shot and one victim can still lead to more than one conviction under Ohio law. While this C ourt may find it easier

to believe that the two a cts wer e both driven by the s ame desire to evade arr est (or harm Offic er Ho l t m an n), it was not so unrea sonable as to g ive rise to a g rant of habea s for the state court to find that the two acts wer e sufficie ntly disconnec ted that the two 13No. 12-3996

crimes did not have to merg e for the purposes of sentenc ing. Acc ording ly , the state court’s decision
was not contra

ry to nor an unre asonable application of c lear ly established law.

CONCLUSION For the fore g oing rea sons, we REVERSE the district court’s g rant of a writ of habea s corpus, and REMAND for f

urther pr ocee dings c onsistent with thi s opinion.

14