The Honorable Christopher A. Boyko, United States District Judge for the Northern District *

of Ohio, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0187n.06

Filed: April 9, 2008

No. 06-3857

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TOBY PALMER,

Petitioner-Appellant,

v.

JAMES HAVILAND, Warden,

Respondent-Appellee.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE

UNITED STATES DISTRICT

C O U R T F O R THE

SOUTHERN DISTRICT OF

OHIO

O P I N I O N

BEFORE: CLAY and McKEAGUE, Circuit Judges; and BOYKO, District Judge.*

McKEAGUE, Circuit Judge. Can a defendant commit aggravated robbery but not robbery

in Ohio? In essence, this is the question that Petitioner Toby Palmer asks us to resolve. He argues

that a person cannot commit aggravated robbery without also committing robbery and, therefore, he

should have been punished for only one of the crimes, but not both, under the Double Jeopardy

Clause of the Fifth Amendment to the U.S. Constitution.

We cannot, however, reach that substantive question. The Ohio courts have interpreted the

relevant Ohio statutes as permitting punishment for both robbery and aggravated robbery. A federal

court on habeas review is bound by a state court’s interpretation ofstate law. Accordingly, we affirm

the district court’s denial of habeas relief to Palmer.
No. 06-3857

Palmer v. Haviland

O.R.C. § 2911.01 Aggravated Robbery. (A) No person, in attempting or committing a theft 1

offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the

offender’s person or under the offender’s control and either display the weapon, brandish it, indicate

that the offender possesses it, or use it; . . . .

O.R.C. § 2911.02 Robbery. (A) No person, in attempting or committing a theft offense or 2

in fleeing immediately after the attempt or offense, shall do any of the following: . . . (2) Inflict,

attempt to inflict, or threaten to inflict physical harm on another; . . . .

- 2 -

I

The facts of this case are not in dispute. In March 2001, Jeffrey Horton planned to visit his

wife who had been admitted to the hospital for pregnancy complications. When he arrived at the

hospital parking garage, he saw a maroon Ford Taurus with three men, one of whom was Palmer.

Horton recognized the men because he had earlier struck up a conversation with them at a fast-food

restaurant. The men commandeered Horton and his car at gunpoint. They drove away to an

apartment complex; once there, they took all of Horton’s money and jewelry and ordered him to take

some televisions out of the car.

Believing that his life was in imminent danger, Horton grabbed a firearm from one of the

robbers and escaped. Police eventually arrested the three men. Horton identified all three robbers

from photographic arrays.

A Hamilton County grand jury indicted Palmer on one count of aggravated robbery in

violation of O.R.C. § 2911.01(A)(1), with a firearm specification, one count of robbery in violation 1

of O.R.C. § 2911.02(A)(2), and one count of kidnapping in violation of O.R.C. § 2905.01(A)(2), 2

with a firearm specification. A jury found Palmer guilty of aggravated robbery with a gun
No. 06-3857

Palmer v. Haviland

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specification and of robbery, but not guilty of kidnapping. The trial court sentenced him to

consecutive terms of incarceration of ten years on the aggravated robbery conviction, eight years on

the robbery conviction, and three years on the firearm specification conviction.

Palmer filed a timely appeal in which he argued, inter alia, that the trial court erred in

imposing consecutive maximum sentences. The Court of Appeals of Ohio affirmed. State v. Palmer,

772 N.E.2d 726 (Ohio Ct. App. 2002). On his claim involving consecutive maximum sentences, a

claim grounded in double-jeopardy concerns, the Ohio Court of Appeals explained as follows:

{ 9} Palmer first argues that his convictions involved allied offenses of similar

import, and thus that his sentences for aggravated robbery and robbery should have

merged pursuant to R.C. 2941.25. We disagree.

{ 10} In State v. Rance, [(1999), 85 Ohio St.3d 632, 710 N.E.2d 699] the Ohio

Supreme Court held that two statutory offenses are allied offenses of similar import

if the elements of each offense “correspond to such a degree that the commission of

one crime will result in the commission of the other.” [Id. at 638, 710 N.E.2d 699.]

The Rance test requires a strict textual comparison of the statutory elements, without

reference to the particular facts ofthe case, to determine whether one offense requires

proof of an element that the other does not. If there are differing elements, the

inquiry ends, and multiple convictions and sentences are allowed.

{ 11} Although Palmer acknowledges that this court, in State v. Norman[, (199[9]),

137 Ohio App.3d 184, 738 N.E.2d 403,] and State v. Berry, [(Apr. 14, 2000), 1st

Dist. Nos. C-990354 and C-990365, 2000 WL 376409,] applied the Rance test and

determined that aggravated robbery and robbery are not allied offenses because each

offense requires proof of an element that the other does not, he asks us to reconsider

those decisions in light of State v. Grant[, (Mar. 23, 2001), 1st Dist. No. C-971001].

In Grant, a panel of this court commented that the Ohio Supreme Court, in State v.

Fears, [(1999), 86 Ohio St.3d 329, 715 N.E.2d 136,] had appeared to have implicitly

overruled Rance.

{ 12} This court has already addressed that concern, holding that, despite the

comment in Grant, Berry and Norman remain controlling because the Ohio Supreme

Court has not explicitly overruled Rance and has not specifically addressed whether

aggravated robbery and robbery are allied offenses. [State v. McNeal (Nov. 2, 2001),
No. 06-3857

Palmer v. Haviland

- 4 -

1st Dist. No. C-000717, 2001 WL 1346186.] Furthermore, we note that the Ohio

Supreme Court continues to use the Rance test without citation to Fears. [See State

v. Childs (2000), 88 Ohio St.3d 558, 728 N.E.2d 379.]

{ 13} While we may not consider the Rance test to be the best approach for

determining when charged offenses are allied offenses, because it fails to consider

the individual facts of a case, as some courts have done when applying the

Blockburger test, [Rance, supra, at paragraph three of syllabus,] we are bound, “as

an intermediate appellate court, until the Ohio Supreme Court tells us otherwise, [to]

apply the clearly defined test for cumulative punishments in Rance, no matter if we

disapprove of the result reached.” [Norman, 137 Ohio App.3d at 203, 738 N.E.2d

403.] Accordingly, as robbery and aggravated robbery are not allied offenses on the

basis of Rance, the trial court properly imposed multiple sentences. [See Norman,

supra; see Berry, supra.]

Id. at 728-29 (footnotes omitted). Presiding Judge Painter dissented:

{ 17} Rance is not just intuitively wrong, it is legally wrong. The Ohio Supreme

Court has the law of double jeopardy in jeopardy of disappearing, in addition to the

bollix it has made of the related problems of allied offenses and lesser-included

offenses. [State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294; State v. Barnes

(2002), 94 Ohio St.3d 21, 759 N.E.2d 1240, especially Lundberg Stratton, J.,

dissenting.] It seemed that the Supreme Court overruled Rance, albeit by

implication, in State v. Fears. [(1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136.] We

so held in State v. Grant, [(Mar. 23, 2001), 1st Dist. No. C-971001, appeal not

allowed (2001), 92 Ohio St.3d 1443, 751 N.E.2d 482,] which the Supreme Court

declined to review.

{ 18} In State v. McIntosh, [(2001), 145 Ohio App.3d 567, 763 N.E.2d 704,] I wrote,

“While an argument can be made that because the syllabus in Rance was not

overruled in Fears, Rance is still viable, I prefer to conclude that the Ohio Supreme

Court recognized its error; though it would be much better if that court would do so

specifically.” Even though the court has cited Rance after deciding Fears, I believe

that is not necessarily sufficient to undo Fears. In Fears, the court did not even cite

Rance, though surely the court must have been aware of its own prior decisions.

{ 19} Therefore, I dissent and join Justice Lundberg Stratton[,State v. Barnes (2002),

94 Ohio St.3d 21, 759 N.E.2d 1240 (Lundberg Stratton, J., dissenting),] in urging the

Supreme Court to revisit this area and correct its mistakes. The confusion created for

the trial and appellate courts of this state should be resolved.
No. 06-3857

Palmer v. Haviland

The magistrate judge determined that Palmer had fairly presented his double-jeopardy claim 3

before the Ohio courts and, therefore, had exhausted his state remedies on that claim. The district

court agreed and neither party disputes this matter on appeal.

- 5 -

Id. at 729-30 (footnotes omitted).

Palmer appealed to the Supreme Court of Ohio. The court summarily dismissed his appeal

as not involving any substantial constitutional question.

Palmer subsequently petitioned the federal district court for a writ of habeas corpus. In

support, he raised two grounds for relief, only one of which is relevant on appeal: “Ground One:

Petitioner’s right to be free from Double Jeopardy was violated when the state court punished him

twice for the same offense, in violation ofthe Fifth and Fourteenth Amendments to the United States

Constitution.” The district court referred the matter to a magistrate judge, who recommended that

the petition be denied. The district court accepted the magistrate judge’s report and recommendation

over Palmer’s objection.3

This appeal followed.

II

A. Standard of Review

We review de novo the district court’s decision to deny habeas relief to Palmer. Linscott v.

Rose, 436 F.3d 587, 590 (6th Cir. 2006). Palmer filed his petition after the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA is “foremost” among

the “multiple lenses of deference” through which a federal habeas court views the questions before
No. 06-3857

Palmer v. Haviland

The Supreme Court applied the double-jeopardy provision of the Fifth Amendment to the 4

States in Benton v. Maryland, 395 U.S. 784 (1969).

- 6 -

it. Ross v. Petro, 515 F.3d 653, 660 (6th Cir. 2008). A federal court can grant a writ of habeas

corpus only where the state court’s adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “A federal habeas court may issue

the writ under the ‘contrary to’ clause if the state court applies a rule different from the governing

law set forth in [Supreme Court] cases, or if the state court applies a rule differently than [the

Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,

694 (2002). “The [federal] court may grant relief under the ‘unreasonable application’ clause if the

state court correctly identifies the governing legal principle from [Supreme Court] decisions but

unreasonably applies it to the facts of the particular case.” Id. “[A] federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also have been unreasonable.” Walls v. Konteh, 490 F.3d 432, 436 (6th Cir. 2007)

(citations omitted).

B. Double Jeopardy Involving Multiple Punishments

The Supreme Court has identified three ways in which the Double Jeopardy Clause protects

a criminal defendant’s rights. It “protects against a second prosecution for the same offense after 4

acquittal. It protects against a second prosecution for the same offense after conviction. And it
No. 06-3857

Palmer v. Haviland

- 7 -

protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S.

711, 716 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794

(1989). Palmer’s claim falls under the latter category, a category which former Chief Justice

Rehnquist described as “a veritable Sargasso Sea which could not fail to challenge the most intrepid

judicial navigator.” Albernaz v. United States, 450 U.S. 333, 343 (1981).

Unlike the first two categories, the multiple-punishments category of double jeopardy is

primarily one of legislative intent. A legislature defines criminal action and criminal punishment.

Whalen v. United States, 445 U.S. 684, 689 (1980). As long as they act within the broad contours

of the Eighth Amendment and other federal (and possibly state) constitutional provisions, id. at 689

n.3 (collecting cases), Congress and state legislatures can proscribe multiple punishments in

connection with the same criminal activity, Albernaz, 450 U.S. at 344 (“Thus, the question of what

punishments are constitutionally permissible is not different from the question of what punishments

the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose

multiple punishments, imposition of such sentences does not violate the Constitution.”). A court

cannot, however, exceed the authorization granted to it by a legislature by imposing multiple

punishments for activity that the legislature intended to punish only once. Missouri v. Hunter, 459

U.S. 359, 366 (1983) (“With respect to cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment

than the legislature intended.”); Brown v. Ohio, 432 U.S. 161, 165 (1977) (“Where consecutive

sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to

assuring that the court does not exceed its legislative authorization by imposing multiple
No. 06-3857

Palmer v. Haviland

- 8 -

punishments for the same offense.”). Thus, if a legislature permits multiple punishments, a court

can impose such punishments; if a legislature prohibits multiple punishments, a court cannot impose

such punishments without running afoul of the federal prohibition against double jeopardy.

In determining whether a legislature permits multiple punishments, a court’s role is limited

to discerning “‘whether the legislature intended to punish cumulatively the same conduct which

violates two statutes.’” Carter v. Carter, 59 F. App’x 104, 107 (6th Cir. 2003) (unpublished)

(quoting United States v. Johnson, 22 F.3d 106, 107-08 (6th Cir. 1994)). In general, legislative

intent is discerned from the statutory language, legislative history, and by application of the test set

out in Blockburger v. United States, 284 U.S. 299, 304 (1932). United States v. Hebeka, 25 F.3d 287,

290 n.5 (6th Cir. 1994). In Blockburger, the Supreme Court held that “where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each provision requires proof of

a fact which the other does not.” 284 U.S. at 304. In applying the test, the Supreme Court looked

to the “face of the statute,” and consequently found that the “plain meaning of the provision” allowed

multiple penalties. Id. at 304-05. 

In Whalen, the Supreme Court applied the Blockburger test for the first time to provisions

defining compound and predicate offenses. 445 U.S. at 690-92 (using the Blockburger test to

determine whether provisions of the District of Columbia criminal code authorized consecutive

sentences for rape and for a killing committed in the course of the rape). The Whalen Court held that

Congress did not intend to authorize consecutive sentences because the Blockburger test revealed

that “conviction for killing in the course of a rape cannot be had without proving all the elements of
No. 06-3857

Palmer v. Haviland

 O.R.C. § 2941.25 Multiple Counts provides: 5

(A) Where the same conduct by defendant can be construed to constitute two or more

allied offenses of similar import, the indictment or information may contain counts

for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar

import, or where this conduct results in two or more offenses of the same or similar

kind committed separately or with a separate animus as to each, the indictment or

information may contain counts for all such offenses, and the defendant may be

convicted of all of them.

- 9 -

the offense of rape.” Id. at 693-94. The majority reiterated that Blockburgershould be applied to the

particular statutory provisions at issue and not “to the facts alleged in a particular indictment.” Id.

at 694 & n.8.

C. Statutory Construction

Utilizing the test for statutory construction set forth in Rance, Ohio courts have concluded

that the state legislature intended to permit cumulative punishments for both robbery and aggravated

robbery. In Rance, the Supreme Court of Ohio looked first to the state’s multi-count statute, O.R.C.

§ 2941.25, to discern whether the legislature intended for the possibility that a defendant could be 5

convicted and punished for more than one “allied offense.” Under that statute, a defendant can be

punished for crimes of dissimilar import, id. § 2941.25(A), or for crimes of similar import if the

defendant committed them separately or with separate animus, id. § 2941.25(B). Rance, 710 N.E.2d

at 703. To determine whether a crime involved allied offenses of similar or dissimilar import, a

court must consider whether “the elements of the crimes correspond to such a degree that the
No. 06-3857

Palmer v. Haviland

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commission of one crime will result in the commission of the other.” Id. (internal quotation marks

omitted). If so, then the crimes are of similar import and a defendant can be found guilty and

punished for only one unless he committed the crimes separately or with separate animus. If not,

then a defendant can be convicted of both under O.R.C. § 2941.25(A). The Supreme Court of Ohio

explained that “the comparison of elements of offenses outlined in Blockburger is reflected in

[O.]R.C. § 2941.25(A)” and, therefore, “cases discussing and applying Blockburger are helpful,

though not controlling, in [its] examination of Ohio law.” Id.

As noted in its decision on direct appeal, the Court of Appeals of Ohio has considered on two

earlier occasions whether robbery and aggravated robbery were allied crimes of similar import.

Applying Rance in each case, the Court of Appeals concluded that the two offenses were not. In

State v. Norman, 738 N.E.2d 403 (Ohio Ct. App. 1999), the defendant, like Palmer, had been

convicted of robbery under O.R.C. § 2911.02(A)(2) and aggravated robbery under O.R.C. §

2911.01(A)(1). The court analyzed the two subsections in the abstract and concluded that each

required proof of an element not required in the other. Norman, 738 N.E.2d at 416. Under the state’s

multi-count statute (as interpreted by Rance), the two offenses were not allied offenses of similar

import. Id. at 416-17. Thus, the defendant in Norman could be subject to cumulative punishment

for the two offenses without violating double jeopardy. Id. The state appellate court held similarly

in the subsequent case of State v. Berry, Nos. C-990354/5, 2000 WL 376409, at *3 (Ohio Ct. App.

Apr. 14, 2000) (“An element of aggravated robbery, viz., brandishing or using a deadly weapon, was

not required to prove robbery. An element of robbery, viz., the infliction, attempted infliction, or
No. 06-3857

Palmer v. Haviland

- 11 -

threatened infliction of physical harm, was not required to prove aggravated robbery. Each offense

required proof of an element that the other did not.”).

Upon recognizing that Ohio courts have clearly answered the question of legislative intent,

our role is at an end. In Banner v. Davis, a case involving a similar double-jeopardy claim on habeas

review, this court explained, “For the purpose of double jeopardy analysis, once a state court has

determined that the state legislature intended cumulative punishments, a federal habeas court must

defer to that determination.” 886 F.2d 777, 780 (6th Cir. 1989). We cannot independently apply

typical rules of statutory construction, including the Blockburger test, to a state statute and conclude

that the state courts were wrong in their reading of legislative intent. McCloud v. Deppisch, 409 F.3d

869, 875 (7th Cir. 2005) (“The state court’s use of the Supreme Court’s Blockburger test does not

give a toehold into its examination of legislative intent. . . . [The Blockburger test] is not a

constitutional test in and of itself. Rather, it is simply a means of evaluating legislative intent.”).

As long as the state court has concluded that the legislature intended cumulative punishment, this

court is bound by that conclusion. Banner, 886 F.2d at 782 (“Contrary to [the petitioner’s] assertion,

then, we may not use the Blockburger test—a rule of statutory construction for federal statutes—to

independently evaluate the scope of the Tennessee statute here, the Tennessee Court of Criminal

Appeals and Supreme Court having already held that the legislature intended cumulative

punishment.”); see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“We accept, as we must, the

Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment

for the two pairs of crimes involved here.”); cf. Pryor v. Rose, 724 F.2d 525, 531 (6th Cir. 1984) (en
No. 06-3857

Palmer v. Haviland

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banc) (finding that the state court had inferred legislative intent and had not shown that the

legislature “clearly indicated” multiple punishments were intended).

Other circuits have similarly held that they are bound by state court interpretations of state

law authorizing multiple punishments. For example, in McCloud, the Seventh Circuit concluded that

the petitioner’s double-jeopardy claim was precluded by a Wisconsin court’s reading of legislative

intent. The state court had concluded that the legislature had authorized multiple punishments for

the offenses of which the petitioner had been convicted. McCloud, 409 F.3d at 876. Whether the

state court’s reading was in some sense “correct” was beyond the federal court’s “purview as an

interpretation of state law.” Id. The Seventh Circuit noted that it “might have a different case if” the

state court had deemed legislative intent irrelevant or, rather, had found that the legislature had not

intended multiple punishments but that the petitioner’s multiple punishments were nonetheless

acceptable despite the Double Jeopardy Clause. Id. “Such notions,” the court explained, “implicate

federal constitutional principles as opposed to the intent of the state legislators who enacted state

law, [and] would be within [its] power to address in a habeas proceeding.” Id. The state court did

nothing like that, however, but instead “recognized that the federal constitutional question turned

on the legislature’s intent.” Id. The state court “conducted an appropriate inquiry into that intent,

and concluded that the legislature had authorized multiple punishments for robbery and operating

a vehicle without the owner’s consent. That answer close[d] the door on [the petitioner’s] double

jeopardy claim,” according to the Seventh Circuit. Id.; see also Birr v. Shillinger, 894 F.2d 1160,

1162 (10th Cir. 1990) (“The [Wyoming Supreme Court] majority’s interpretation of the legislative

intent for the imposition of multiple punishments is binding on this court irrespective of the views
No. 06-3857

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of [that court’s] dissenters. . . . [W]e find no violation of the double jeopardy clause.”); Deloach v.

Wainwright, 777 F.2d 1524, 1525-26 (11th Cir. 1985) (concluding that it was bound by a finding by

the Florida Supreme Court that the Florida legislature intended multiple punishments for felony

murder and the underlying felony).

The Court of Appeals of Ohio held that the state legislature intended for cumulative

punishments for robbery and aggravated robbery. In doing so, it relied upon the test for statutory

construction set forth by the Supreme Court of Ohio. While both the majority and the dissent voiced

concerns about the soundness of the Rance test, the majority correctly noted that it was bound by that

decision unless and until the Supreme Court of Ohio takes up the issue again. Johnson v. Microsoft

Corp., 805 N.E.2d 179, 181-82 (Ohio Ct. App. 2004) (explaining that when faced with controlling

authority by a superior court and another line of decisions, a court of appeals has only one course—to

follow the authority of the court to which it is inferior, leaving to the higher court the prerogative of

overruling its own decisions). As the state appellate court clearly held that multiple punishments for

the two crimes are permissible under Ohio law, the state trial court did not violate Palmer’s federal

right against double jeopardy. 

III

For the reasons set forth above, we AFFIRM the district court’s denial of a writ of habeas

corpus in this case.