IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

MICHAEL A. STALNAKER, 

Petitioner, CASE NO. 2:10-CV-1065

JUDGE GEORGE C. SMITH

v. MAGISTRATE JUDGE E.A. PRESTON DEAVERS

ROD JOHNSON, WARDEN, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent’s Return

of Writ, Petitioner’s Reply and the exhibits of the parties. For the reasons that follow, the Magistrate

Judge RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

The United States District Court for the Northern District of Ohio, Eastern Division

summarized the facts and procedural history of this case as follows: 

On December 5, 2003, the Lake County Grand Jury charged

Stalnaker with five counts of rape, six counts of gross sexual

imposition, and six counts of furnishing alcohol to a minor. Stalnaker

pleaded not guilty to the charges and the matter proceeded to a jury

trial where he was found guilty as charged. On May 6, 2004, the trial

court sentenced Stalnaker to an aggregate prison term of thirty-three

years.

On June 15, 2004, Stalnaker timely appealed the conviction to Ohio’s

Eleventh District Court of Appeals (“state appellate court”), alleging

seven assignments of error. See State v. Stalnaker, 2005-Ohio-7042,

2005 WL 3610430 (Ohio App. 11 Dist. Dec. 29, 2005). [FN1] On

June 24, 2004, the United States Supreme Court decided Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)

finding a violation of the Sixth Amendment right to trial by jury

where the state sentencing statute permitted a judge to increase the

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defendant’s sentence based upon factual finding of the judge rather

than the jury. On December 29, 2005, the state appellate court

affirmed Stalnaker’s convictions and sentences.

FN1. Important to this habeas Petition, Stalnaker

alleged that: “Appellant was denied the effective

assistance of counsel, and was denied a fair trial in

violation of the Ohio and United States Constitutions

through the absence of objection to the introduction of

prejudicial and irrelevant ‘bad act’ evidence which

was not admissible under Evidence Rule 404(B).”

(ECF No. 5, Ex. 17 at 21.) Furthermore, Stalnaker

argued that: “Appellant’s sentence was imposed in

violation of Appellant’s constitutional rights under the

Sixth and Fourteenth Amendments to the United

States Constitution.” Id. at 32.

On January 9, 2006, Stalnaker filed a motion for reconsideration

pursuant to App.R. 26(A), which was denied by the state appellate

court on January 27, 2006. Also on January 9, 2006, Stalnaker filed

a Notice to Certify Conflict with the state appellate court regarding

his fifth assignment of error, which raised two claims: 1) whether his

sentence was unconstitutional under O.R.C. § 2929.14(B) because it

was based on improper judicial fact-finding which increased the

sentence beyond the statutory minimum; and 2) whether the

imposition of consecutive prison terms was unconstitutional. The

state appellate court found a conflict existed only as to the first issue

and certified the question to the Ohio Supreme Court. [FN2] While

the certified question was pending, Stalnaker filed a Notice of Appeal

with the Ohio Supreme Court. [FN3]

FN2. Specifically, the question certified to the Ohio

Supreme Court was: “Whether the judicial findings

mandated under R.C. 2929.14(B) are unconstitutional

in light of the United States Supreme Court’s decision

in Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004).” (ECF No. 9 at 7.)

FN3. The Notice of Appeal presented the two

following propositions of law: 

1. A criminal defendant is denied the effective

assistance of counsel in violation of the Sixth

Amendment when trial counsel engaged in a bizarre

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trial strategy that invited the introduction of “bad

acts” evidence that tended to establish the accused’s

criminal propensity and in effect sealed the

defendant’s conviction. 

An appellant is denied his constitutional right to an

open court under Article I, Section 16 of the Ohio

Constitution when an appellate court fails to

adequately consider and address each of the

arguments submitted in support of a claim of

ineffective assistance of counsel. (ECF No. 5, Ex. 30

at i.) 

On February 27, 2006, the Ohio Supreme Court decided State v.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), in which the Court

applied Blakely to Ohio’s sentencing statutes and found portions

thereof to be unconstitutional, including O.R.C. §§ 2929.14(B) and

(E). On April 26, 2006, the Ohio Supreme Court dismissed the

certified question, finding that no conflict existed. State v. Stalnaker,

109 Ohio St.3d 1420, 846 N.E.2d 531, 2006-Ohio-1967 (2006)

(table) (cause dismissed). Furthermore, the Ohio Supreme Court

dismissed Stalnaker’s appeal, ruling that it did not involve any

substantial constitutional question. State v. Stalnaker, 109 Ohio St.3d

1420, 846 N.E.2d 531, 2006-Ohio-1967 (April 26, 2006) (table)

(appeal not allowed).

On July 23, 2007, Stalnaker filed the instant [habeas corpus] Petition

asserting two grounds for relief:

1. Petitioner’s trial counsel provided ineffective assistance of counsel,

in violation of the Sixth and Fourteenth Amendments to the United

States Constitution, by pursing a bizarre trial strategy that invited the

introduction of an avalanche of “bad acts” evidence that tended to

establish the accused’s criminal propensity and, in effect, sealed

Petitioner’s conviction.

2. Petitioner was sentenced in violation of Petitioner’s constitutional

rights under the Sixth and Fourteenth Amendments to the United

States Constitution based upon judicial findings which were not

admitted by Petitioner or proved to the jury beyond a reasonable

doubt, contrary to the rule announced by the United States Supreme

Court in Blakely v. Washington.

Stalnaker v. Bobby, 589 F.Supp. 905, 910-11 (N.D. Ohio 2008). On November 12, 2008, the United

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States District Court for the Northern District of Ohio granted Petitioner’s prior federal habeas

corpus petition on his claim that his sentence violated Blakely, and remanded the case to the trial

court for re-sentencing. Id. On February 13, 2009, the trial court re-sentenced Petitioner to thirtythree years incarceration. Exhibit 2 to Return of Writ. Petitioner again filed a timely appeal,

asserting the following assignments of error: 

[1.] THE TRIAL COURT ERRED WHEN IT SENTENCED THE

DEFENDANT-APPELLANT TO A

MORE-THAN-THE-MINIMUM, CONSECUTIVE PRISON TERM

IN VIOLATION OF THE DUE PROCESS AND EX POST FACTO

CLAUSES OF THE OHIO AND UNITED STATES

CONSTITUTIONS.

[2.] THE TRIAL COURT ERRED WHEN IT SENTENCED THE

DEFENDANT-APPELLANT TO A

MORE-THAN-THE-MINIMUM, CONSECUTIVE PRISON TERM

IN VIOLATION OF DEFENDANT-APPELLANT’S RIGHT TO

DUE PROCESS.

[3.] THE TRIAL COURT ERRED WHEN IT SENTENCED THE

DEFENDANT-APPELLANT TO A

MORE-THAN-THE-MINIMUM, CONSECUTIVE PRISON TERM

BASED ON THE OHIO SUPREME COURT’S SEVERANCE OF

THE OFFENDING PROVISIONS UNDER FOSTER, WHICH WAS

AN ACT IN VIOLATION OF THE PRINCIPLE OF SEPARATION

OF POWERS.

[4.] THE TRIAL COURT ERRED WHEN IT SENTENCED THE

DEFENDANT-APPELLANT TO A

MORE-THAN-THE-MINIMUM, CONSECUTIVE PRISON TERM

CONTRARY TO THE RULE OF LENITY.

[5.] THE TRIAL COURT ERRED WHEN IT SENTENCED THE

DEFENDANT-APPELLANT TO A

MORE-THAN-THE-MINIMUM, CONSECUTIVE PRISON TERM

CONTRARY TO THE INTENT OF THE OHIO LEGISLATORS.”

State v. Stalnaker, No. 2009-L-039, 2009 WL 3154836, at *2 (Ohio App. 11th Dist. Sept. 30, 2009). 

On September 30, 2009, the state appellate court affirmed the judgment of the trial court. Id. On

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December 30, 2009, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.

Stalnaker, 124 Ohio St.3d 1419 (2009). 

On November 24, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of

the Constitution of the United States based upon the following grounds: 

1. A trial court violates an individual’s rights under Due Process and

the Ex Post Facto Clauses of the Ohio and United States

Constitutions when it sentences the individual to more-than-theminimum prison terms that were not available to the court at the time

the individual committed the offense. 

2. A trial court violates an individual’s rights to Due Process when

it sentences the individual to more-than-the-minimum prison terms

with no additional findings made by a jury and when the individual

had no actual or constructive notice of the possible sentences. 

3. A trial court violates the principle of Separation of Powers

provided in the United States and Ohio Constitution by sentencing an

individual to more-than-the-minimum prison terms based on the

court’s severance of the offending Statute Provisions under Foster.

4. A trial court violates the Rule of Lenity when it imposes morethan-the-minimum prison terms upon an individual where the Rule

of Lenity dictated a lesser penalty. 

5. A trial court’s decision to sentence an individual to more-than-theminimum is contrary to the intent of the Ohio Legislature who drafted

sentencing provisions with the clear intent of limiting judicial

discretion to impose such sentences. 

It is the position of the Respondent that Petitioner’s claims are without merit. 

MERITS

All of Petitioner’s claims involve the legality of his sentence, and will be considered together

here. 

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The state appellate court rejected these claims as follows: 

The issues contained in appellant’s five assignments of error have

been addressed by this court in numerous prior decisions. State v.

Elswick, 11th Dist. No.2006-L-075, 2006-Ohio-7011, discretionary

appeal not allowed by State v. Elswick, 113 Ohio St.3d 1513, 866

N.E.2d 512, 2007-Ohio-2208; State v. Green, 11th Dist.

Nos.2005-A-0069 and 2005-A-0070, 2006-Ohio-6695; State v.

Marino, 11th Dist. No.2006-L-192, 2007-Ohio-2566; State v.

Nicholson, 11th Dist. No.2006-L-210, 2007-Ohio-2058; State v.

Schaub, 11th Dist. No.2006-L-126, 2007-Ohio-2853; State v.

Yearian, 11th Dist. No.2006-P0106, 2007-Ohio-2165; State v. Hall,

11th Dist. No.2006-L-226, 2007-Ohio-4950; State v. Dudas, 11th

Dist. Nos.2006-L-267 and 2006-L-268, 2007-Ohio-6739.

Additionally, similar arguments have been consistently rejected by

other Ohio appellate districts and federal courts. See State v. Gibson,

10th Dist. No. 06AP-509, 2006-Ohio-6899; State v. Moore, 3d Dist.

No. 1-06-51, 2006-Ohio-6860; United States v. Portillo-Quezada

(C.A.10, 2006), 469 F.3d 1345. Also, we note that on July 28, 2009,

the Supreme Court of Ohio rejected the same arguments in State v.

Elmore, 122 Ohio St.3d 472, 912 N.E.2d 582, 2009-Ohio-3478,

finding that application of Foster’s severance remedy to defendants

who are resentenced after Foster does not violate their Sixth

Amendment right to a jury trial or the Ex Post Facto or Due Process

Clauses of the U.S. Constitution.

State v. Stalnaker, 2009 WL 3154836, at *2. 

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §

2254(e)(1) provides:

In a proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

Further, a federal habeas court may not grant relief unless the state court’s decision was

contrary to or an unreasonable application of clearly established federal law, or based on an

unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. §

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2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

(1) 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; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

The United States Court of Appeals for the Sixth Circuit has summarized this standard as follows:

Under the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached

by the Supreme Court on a question of law, or if the state court

decides a case differently than the Supreme Court on materially

indistinguishable facts. Under the “unreasonable application” clause,

a federal habeas court may grant the writ if the state court identifies

the correct legal principle from the Supreme Court’s decisions but

unreasonably applies it to the facts of the petitioner’s case. 

Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362

(2000)). Petitioner has failed to meet this standard here.

Petitioner asserts that the trial court’s imposition of more than minimum consecutive terms

of incarceration violates the Ex Post Facto Clause and due process. In Hooks v. Sheets, 603 F.3d

316 (6th Cir. April 27, 2010), the United States Court of Appeals for the Sixth Circuit rejected the

argument now presented by Petitioner, at least as it applies to imposition of consecutive terms of

incarceration:

The Ex Post Facto Clause prohibits a state from passing a law that (1)

criminalizes an action done before the law was passed, which was

innocent when done, (2) “ ‘aggravates a crime, or makes it greater

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than it was, when committed,’ ” (3) “ ‘changes the punishment’ ” to

inflict greater punishment than the law provided when the crime was

committed, or (4) “ ‘alters the legal rules of evidence’ ” so that less

or different testimony is required than at the time the offense was

committed. Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693,

149 L.Ed.2d 697 (2001) (quoting Calder v. Bull, 3 U.S. 386, 390, 3

Dall. 386, 1 L.Ed. 648 (1798)). The Ex Post Facto Clause, however,

provides by its terms that it is applicable only to acts of the

Legislature, and “ ‘does not of its own force apply to the Judicial

Branch of government.’ ” Id. (quoting Marks v. United States, 430

U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). Nevertheless,

the “limitations on ex post facto judicial decisionmaking are inherent

in the notion of due process.” Id. Consequently, the principles of the

Ex Post Facto Clause apply to the courts through the Due Process

Clause. See id. at 457. Because these principles are viewed through

the lens of due process in the judicial context, the constitutionality of

judicial action turns on the traditional due process principles of

“notice, foreseeability, and, in particular, the right to fair warning,”

rather than the specific prescriptions of the Ex Post Facto Clause. Id.

at 458–59.

A state’s statutory scheme does not violate the Sixth Amendment

simply because it constrains the ability of courts to impose

consecutive sentences to situations in which the court has found

specific facts. Oregon v. Ice, 555 U.S. 160, ––––, 129 S.Ct. 711,

714–15, 172 L.Ed.2d 517 (2009). Instead, a state may allow courts

unfettered discretion to impose consecutive sentences or it may limit

that authority without violating the Sixth Amendment. Id. At the time

Hooks committed his crimes, Ohio permitted the court to impose

consecutive rather than concurrent sentences if it found particular

facts, see ORC § 2929.14(E)(4), and explained its “reasons for

imposing the consecutive sentences,” ORC § 2929.19(B)(2)(c). The

Ohio Supreme Court nevertheless determined that these statutory

provisions violated Blakely because they allowed the imposition of

longer sentences-consecutive sentences-based upon judicial

factfinding. Foster, 845 N.E.2d at 491.

Regardless of the court’s determination in Foster, the maximum

sentence to which Hooks was constitutionally subject contemplated

consecutive sentences. Hooks would have the court calculate his

maximum sentence as being imposed concurrently based solely on

the facts found by a jury at the time of sentencing, because he argues

that this calculation is mandated by Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, Apprendi

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does not limit the calculation of Hooks’s potential sentence to

concurrent sentences when the judicial fact-finding here is allowed

under Ice. Thus, Hooks was initially and constitutionally subject to

consecutive sentences according to the “guided discretion” of the

court. See Foster, 845 N.E.2d at 495. Moreover, Hooks was always

aware of the potential for consecutive sentences. On re-sentencing

post Foster he remained subject to consecutive sentences within the

discretion of the court. Since Hooks was always subject to

consecutive rather than concurrent sentences in the discretion of the

trial court, his re-sentencing under Foster did not raise ex post facto

or due process concerns. We need not reach the broader question of

whether re-sentencing under Foster ever violates the Due Process or

Ex Post Facto Clauses because Foster’s application in Hooks’s case

does not do so.

Id., at 320–21. Further, this argument has been repeatedly rejected by state and federal courts,

including this Court. Smith v. Brunsman, 626 F.Supp.2d 786, 793–95 (S.D. Ohio 2009). Petitioner

faced the same sentencing range both prior to and after Foster. His sentence violated neither the Due

Process or Ex Post Facto Clause.

As to Petitioner’s assertion that his sentence violated the “rule of lenity,” this claim fails to

present an issue of constitutional dimension that is appropriate for federal habeas corpus relief. 

“[T]he rule of lenity is merely a canon of statutory interpretation” and nothing in the Constitution

requires the state courts to apply this rule in interpreting state statutes. See Featherkile v. Warden,

No. 1:07-cv-01023, 2010 WL 546118, at *15-16 (S.D. Ohio Feb. 12, 2010)(citations omitted). 

“‘Application of the rule of lenity ensures that criminal statutes will provide fair warning’” regarding

illegal conduct. Lurie v. Wittner, 228 F.3d 113, 126 (2nd Cir. 2000)(quoting Liparota v. United

States, 471 U.S. 419, 427 (1985)). Here, Petitioner does not contend, and the record does not reflect,

that the statute under which he was convicted and sentenced was either unconstitutionally vague or

otherwise failed to provide him fair notice at the time of his conviction. See id. (citing Poole v.

Wood, 45 F.3d 246, 249 (8th Cir. 1995); Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994)). As

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discussed, both before and after Foster, Petitioner had warning of the penalties he faced as well as

the trial court’s discretion to impose these penalties. Thus, the “rule of lenity” fails to provide him

relief here. 

Petitioner’s claim that the application of Foster violated the doctrine of separation of powers

between the judicial and legislative branches likewise fails.

Such arguments about the structure of a state’s governance are

matters for the individual states, not for the federal government. The

only structural requirement imposed on the states by the Constitution

is that each state shall have a republican form of government. Art. IV,

§ 4. All else, consistent with the federal rights guaranteed a state’s

citizens, is a matter for the individual states.

McKitrick v. Smith, No. 3:08-CV-597, 2009 WL 1067321 *9 n.4 (N.D. Ohio April 21, 2009); see

also Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (claim that trial court’s sentence violates

separation of powers presents an issue of state law not cognizable for federal habeas review; Harris

v. Wilson, No. 1:06-cv-2342, 2006 WL 3803410, at *5 (N.D. Ohio Dec. 26, 2006) (claim that Ohio

parole board violated doctrine of separation of powers by determining earliest release date

constitutes an issue of state law that not appropriate for federal habeas corpus review); Shahan v.

Smith, No. 2:08-cv-252, 2009 WL 2169194, at *7 (S.D. Ohio July 16, 2009)(rejecting same

argument presented here).

Moreover, to the extent Petitioner raises a claim regarding the alleged violation of state law,

(as he does in claim five), such claims fail to present issues appropriate for federal habeas corpus

relief. A federal court may review a state prisoner’s habeas corpus petition only on the grounds that

the challenged confinement is in violation of the Constitution, laws or treaties of the United States.

28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a

perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d

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735, 738 (6th Cir.1988). A federal habeas court does not function as an additional state appellate

court reviewing state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614

(6th Cir.1988). “ ‘[F]ederal courts must defer to a state court’s interpretation of its own rules of

evidence and procedure’ ” in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758

F.2d 1431, 1433 (11th Cir. 1985)). Only where the error resulted in the denial of fundamental

fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such

are not the circumstances here. 

 WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

 PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver of the right to appeal the decision of the District Court

adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

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The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue. 

 _s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

Date: June 19, 2012

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