RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0045p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

M ORRIS J ACKSON , Petitioner-Appellant ,

v. KEITH S MITH , Warden, Respondent-Appellee. X - - - -> , - - N No. 11-4146

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: June 19, 2013 Decided and Filed: March 7, 2014 Before: GILMAN, GRIFFIN, and WHITE, Circuit Judges.

_________________ COUNSEL ARGUED: Peter A. Patterson, UNIVERS ITY 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, Oh io, for Appellant. Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. GRIFFIN, J., delivered the opinion of the court in which GILMAN, J., concurred, and WHITE, J., concurred in part. WHITE, J. (pp. 13–14), delivered a separate opinion concurring in part.

_________________ OPINION

_________________ GRIFFIN, Circuit Judge. Morris Jackson appeals the denial of his habeas corpus petition filed under 28 U.S.C. § 2254, in which heclaims that the consecutive sentences imposed on his Ohio convictions for aggr avated robbery and attempted kidnapping

1No. 11-4146 Jackson v. Smith Page 2

violate the Double Jeopardy Clause’s ban on multiple punishments for the same offense. We affirm.

I. In November 2005, an Ohio jury convictedJackson 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 attemp ted bank robbery. Driv ing a stolen vehicle and wearing masks to cover their faces, Jack son 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 offi cer 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 of the lot. Jackson opened the car door, pointed a gun at Bineger, and told her to “sc oot over.” When she hesitated, Jackson tried to sit on her, at which point Bineger es caped 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 th e kidnapping conviction into the robbery conviction. The court denied the request, findi ng the offenses to be of dissimilar import. Applying the Ohio Supreme Court’s then-applicable framework laid out in State v. Rance , 710 N.E.2d 699 (Ohio 1999), overruled by State v. Johnson , 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 [c ommit] the offense of kidnapping without committing the offense of aggravated robbery and vice versa.” The court imposed consecutive sentences of ten years on the aggr avated robbery offense and five years on the attempted kidnapping offense. The Ohio C ourt of Appeals affirmed the trial court’s rejection of Jackson’s merger argumen t, relying on the unpublished decision in State v.No. 11-4146 Jackson v. Smith Page 3

McCoy , No. 05-CA-29, 2006 WL 39100 (Ohio Ct. App. Jan. 5, 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 Je opardy Clause. The district court denied relief on this claim but granted a certifi cate of appealability. This timely appeal followed.

II. We first consider whether the heightened standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) govern Jackson’s double jeopardy claim. See 28 U.S.C. § 2254(d). These standards apply to “any claim that was adjudicated on the merits in State Court proceedings.” Id. By comparison, claims not “adjudicated on the merits” by the state court are given plenary review by a federal habeas court, even where AEDPA otherwise applies. See, e.g. , Jackson v. Houk , 687 F.3d 723, 731 (6th Cir. 2012); see also, e.g. , Wiggins v. Smith , 539 U.S. 510, 534 (2003). In past cases, determining whether a claim was “adjudicated on the merits” sometimes proved difficult, whether because the state court issued a summary denial, bereft of analysis, see Harrington v. Richter, 131 S. Ct. 770, 784 (2011) , because the state court explicitly addressed some of th e federal claims presented but not others, see Johnson v. Williams , 133 S. Ct. 1088, 1093 (2013), or because the state court confined its analysis to state-law authorities, see Danner v. Motley , 448 F.3d 372, 376 (6th Cir. 2006). In cases where the state court relied solely upon state authority, we previously held that the federal claim was not adjudicated on the merits and considered the claim de novo. See id. (concluding that “[a]ny consideration of the Sixth Amendment contained within the state case law upon which the state courts relied is too attenuated to consider the Sixth Amendment claim to have been ‘adjudicated on the merits’”). But the Supreme Court recently overruled our approach and held that “[w]hen a federal claimNo. 11-4146 Jackson v. Smith Page 4

has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated th e claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter , 131 S. Ct. at 784–85. And this rule applies, whether the state court denied relief summarily, see id. , expressly addressed some of the claims but not the one advanced on federal habeas review, see Johnson , 133 S. Ct. at 1093, or confined its analysis to state-law authorities, see Brown v. Bobby , 656 F.3d 325, 329 (6th Cir. 2011) (holding that the state court’s exclusive focus on Ohio’s speedy-trial provisions in rejecting a federal speedy-trial claim failed to rebut the presumption of a merits adjudication). Citing our earlier decision in Danner , Jackson contends that his double jeopardy claim, though fairly presented, was not adjudi cated on the merits and therefore must be reviewed de novo. We disagree. Jackson is correct that the Ohio Court of Appeals’ analysis of his double jeopardy claim was limited to an applicati on of Ohio’s allied offenses statute, Ohio Rev. Code § 2941.25, as interpreted by the Ohio Supreme Court in State v. Rance , 710 N.E.2d 699 (Ohio 1999). But that analysis is entirely dispositive of the federal double jeopardy claim, as the Ohio Supreme Court recognized in Rance

. Id. at 705 (explaining that the allied offenses analysis “answers the constitutional and state statutory inquiries”). Therefore, the state court necessarilyresolved the federal claim, despite not expressly saying so. See Johnson , 133 S. Ct. at 1098 (“Regardless of whether a California court would consider Williams’ [state] and Sixth Amendment claims to be perfectly coexte nsive, the fact that these claims are so similar makes it unlikely that the California C ourt of Appeal decided one while overlooking the other.”); cf. Early v. Packer , 537 U.S. 3, 8 (2002) (per curiam) ( holding that an explained decision receives AEDPA deference even if the state court fails to cite—or is not even aware of—relevant Supreme Court precedent). Because the Ohio Court of Appeals adjudicated Jackson’s federal claim “on the merits,” we must review its decision under AEDPA’s heightened standards. Pursuant to these standards, eligibility for federal relief on a claim adjudicated on the merits requires the petitioner to demonstrate that the state court’s decisionNo. 11-4146 Jackson v. Smith Page 5

1 Eligibility also exists where the adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of th e evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Subparagraph (d)(2) is not applicable here. “resulted in a decision that was contrary t o, 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). 1

III. Where, as here, § 2254(d)(1) governs a federal court’s review of a state conviction, the applicable substantive law is limited to federal law “clearly established” by the holdings of Supreme Court decisions. Williams v. Taylor , 529 U.S. 362, 412 (2000). Identifying the requisite substantive law, therefore, is the “starting point for cases subject to § 2254(d)(1).” Marshall v. Rodgers , 133 S. Ct. 1446, 1449 (2013) (per curiam). The Fifth Amendment provides in relevant part that no person shall “be twice put in jeopardy” for “the same offence.” U.S. Const. amend. V. This guarantee, fundamental as it is to “the American scheme of justice,” applies against the States by virtue of the Fourteenth Amendment’s Due Process Clause. See Benton v. Maryland , 395 U.S. 784, 795 (1968). The Double Jeopardy Clause protects against “multiple punishments for the same offense,” among other things. North Carolina v. Pearce , 395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith , 490 U.S. 794 (1989). As the Court long ago recogni zed, “[i]f there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence.” Ex parte Lange , 85 U.S. 163, 168 (1874).

A. The warden begins his defense of the di strict court’s judgment with an argument that is inconsistent with well-settled precedent. According to the warden, “the test for determining whether two statutes constitute the ‘same offense’ for double jeopardy purposes was first developed in Blockburger v. United States , 284 U.S. 299 (1932).” HeNo. 11-4146 Jackson v. Smith Page 6

then contends that the Ohio Court of Appeals “applied Blockburger to the particular statutory provisions at issue as required by United States Supreme Court precedent” and reached a decision that was neither contraryto, nor an unreasonable application of, the Blockburger test. This argument is entirely inapposite. To begin, the Ohio courts did not apply Blockburger ; they applied Ohio’s allied offens es statute. Nor does the federal constitution require the state courts to apply Blockburger to resolve the double jeopardy claim. What determines whether the constitutional prohibition against multiple punishments has been violated is the state legislature’s intent concerning punishment. Specifically, “[w]ith 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.” Missouri v. Hunter , 459 U.S. 359, 366 (1983). In the federal system, it is presumed that “Congress ordinarily does not intend to punish the same offense under two different statutes.” Whalen v. United States , 445 U.S. 684, 691 (1980). “Accordingl y, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” Id. at 692.

In Blockburger , the Court created a test for determining whether two federal statutory provisions really proscribe the “same offense” and thus whether Congress presumptively intended just one punishment: “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. But this test, the Court has clarified, is merely a “rule of statutory construction,” designed to assist courts in discerning Congress’s intent; the Fifth (and Fourteenth) Amendments do not require the States to use it, and they are free to create their own tests, whether by statute or through judicial decisionmaking. Legislative inte nt is the touchstone; it, and not the Blockburger test, determines whether two offenses are the same and, if so, whether multiple punishments are nevertheless intended. Albernaz v. United States , 450 U.S. 333, 344No. 11-4146 Jackson v. Smith Page 7

(1981) (“The question of what punishments are constitutionally permissible is not different from the question of what punishme nts the Legislative Branch intended to be imposed.”); see also Rance , 710 N.E.2d at 705 (“In Ohio it is unnecessary to resort to the Blockburger test[.]”).

The Court’s decision in Hunter , 459 U.S. 359, illustrates the point. There, the Missouri Supreme Court, using the Blockburger test, concluded that Missouri statutes prohibiting robbery in the first degree and armed criminal action stemming from the robbery criminalized only one course of conduct. Based solely on that determination, the court found a “multiple punishments” violation, despite acknowledging “that the Missouri legislature had expressed its clear intent that a defendant should be subject to conviction and sentence under the armed criminal action statute in addition to any conviction and sentence for the underlying felony.” Id. at 363–64. The United States Supreme Court reversed, explaining that the legislature’s intent , not the results of the Blockburger test, controlled: “Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger , a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Id. at 368–69; see also Ohio v. Johnson , 467 U.S. 493, 499 n.8 (1984) (“As shoul d be evident from our decision in Missouri v. Hunter , . . . the Blockburger test does not necessarily control the inquiry into the intent of a state legislature.”). The warden makes the same mistake here by elevating Blockburger to the status of a constitutional requirement.

B. The Ohio legislature has expressed its intention in regard to multiple punishments through a rule of general applicability. Ohio Revised Code § 2941.25 provides: (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.No. 11-4146 Jackson v. Smith Page 8

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his 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. Ohio courts apply this statute , not the Blockburger test, to ascertain the Ohio legislature’s intent. Rance , 710 N.E.2d at 705; see State v. Bickerstaff , 461 N.E.2d 892, 896 n.1 (Ohio 1984) (explaining that the allied o ffenses statute “is a clear indication of the General Assembly’s intent to permit cumulative sentencing for the commission of certain offenses”). The Ohio Supreme Court has interpreted the statute in various ways over the years. Three decisions are particularly relevant.

The first is State v. Rance , 710 N.E.2d 699 (Ohio 1999), where the Ohio Supreme Court held that when ascertaining whether tw o offenses are allied, a court must consider the statutory elements in the abstract, as oppos ed to considering the specific facts of the crime. Id. at 705. The court stated further that “[c]ourts should assess, by aligning the elements of each crime in the abstract, wh ether the statutory elements of the crimes correspond to such a degree that the commissi on of one crime will [automatically] result in the commission of the other.” Id. (internal quotation marks omitted). Rance governed at the time Jackson’s case came before the OhioCourt of Appeals. The court applied the case in rejecting Jackson’s claim.

The second relevant decision is State v. Winn , 905 N.E.2d 154 (Ohio 2009), decided after Jackson’s convictions became final. There, using the Rance framework, the Ohio Supreme Court concluded that aggravated robbery and kidnapping—essentially the offenses at issue here, though Jackson was convicted of attempted kidnapping—are allied offenses of similar import. Comparing th e elements of the offenses in the abstract, the court concluded that “the two offenses are so similar that the commission of one offense will necessarily result in commission of the other.” Id. at 158. This result, the court stated, was “in keeping with 30 years of precedent.” Id. at 158.

The third is State v. Johnson , 942 N.E.2d 1061 (Ohio 2010), also decided after Jackson’s convictions became final. In th at case, the Ohio Supreme Court overruledNo. 11-4146 Jackson v. Smith Page 9

Rance , concluding that its approach was in tension with the language of the allied offense statute, was difficult to apply, offered almost no guidance to the lower courts, and sometimes yielded absurd results. The court created a new standard for ascertaining whether two crimes are allied offenses. Under this standard, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger . . . , the conduct of the accused must be considered.” Id. at 1069. This new approach, the court concluded, flowed from the plain language in the allied offenses statute, which focuses on the defendant’s conduct. Id. at 1070. Accordingly, “[i]f the offenses correspond to such a degree that the conduct of the defe ndant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” Id. If that is the case, “then the court must determin e whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id . If that too is the case, “then the offenses are allied offenses of similar import and will be merged.” Id.

C. Jackson makes two arguments. First, he contends that using the new test for allied offenses set forth in Johnson , it is clear that the Ohio legislature never authorized multiple punishments for his convictions of aggravated robbery and attempted kidnapping. Next, he argues that even under the old Rance test, the Ohio Supreme Court’s decision in Winn demonstrates that the Ohio legislature did not authorize cumulative punishments for the offenses. Under either theory, Jackson maintains, punishing him for both offenses “violate[s] clearly established Federal law.” We can dispense with extended analysis of Jackson’s argument based on Johnson . After Jackson filed his opening brief, another panel of this court held, as a matter of Ohio law, that Johnsonapplies only in criminal cases that are not yet final, which is to say prospectively

. See Volpe v. Trim , 708 F.3d 688, 701 (6th Cir. 2013) (“Johnson does not apply . . . to cases where the defendant has already exhausted her appellate remedies.”). Johnson was decided after Jackson’s convictions became final. Accordingly, Volpe forecloses Jackson’s argument based upon Johnson . 6th Cir. R.No. 11-4146 Jackson v. Smith Page 10

32.1(b); see Walters v. Warden, Ross Corr. Inst. , 521 F. App’x 375, 378 (6th Cir. 2013) (“ Volpe is binding precedent on this panel.”). In his reply brief, Jackson acknowledges Volpe but emphasizes his Winn -based argument. He contends that, unlike Johnson , Winn“only clarified and applied existing state law” when it held that kidnapping and aggravated robbery are allied offenses. Also, Winn stated that its holding was “consistent with 30 years of precedent,” which means that the court’s determination in Jackson’s case concerning the legislature’s intent was wrong at the time his convictions became final. Therefore, Jackson concludes, the state court “prescrib[ed] greater punishment than the legislature intended,” in violation of the Double Jeopardy Clause. See Hunter , 459 U.S. at 366. However, simply because the state court’ s assessment of its legislature’s intent was wrong does not mean that Jackson is eligible for federal habeas relief. The Supreme Court has made clear that the only question that matters under § 2254(d)(1) is “whether [the] state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law.” Lockyer v. Andrade , 538 U.S. 63, 71 (2003); see Richter , 131 S. Ct. at 786. The Ohio Court of Appeals’ decision is neither. We might have a different result if the state court “had said that legislative intent is irrelevant to the double jeopardy analysis, or that although the [Ohio] legislature clearly had not intended for the two crimes to be punish ed cumulatively, the consecutive sentences imposed on [Jackson] were nonetheless accepta ble despite the Double Jeopardy Clause.” McCloud v. Deppisch , 409 F.3d 869, 876 (7th Cir. 2005). For such statements would be plainly “contrary to” clearly established federal law that says the legislature’s intent controls. See Bell v. Cone , 535 U.S. 685, 694 (2002) (“A fede ral habeas court may issue the writ under the ‘contrary to’ cl ause if the state court applies a rule different from the governing law set forth in our cases.” (citing Williams , 529 U.S. at 405–06)); see also Brown v. Payton , 544 U.S. 133, 141 (2005) (allowing habeas relief if the state court “applies a rule that contradicts the governing law set forth in our cases” (emphasis added)). But that is not ourcase. At worst, the state court incorrectly applied Ohio’sNo. 11-4146 Jackson v. Smith Page 11

2 Nor do we see any way in which a state court could “unreasonably apply” these clearly established rules and thereby satisfy § 2254(d)(1 )’s other exception to the bar on habeas relief. allied offenses statute to determine the legislature’s intent. 2 Habeas relief, especially when circumscribed by § 2254(d)(1), is not available for such alleged errors. Furthermore, our “review under § 2254(d)(1 ) focuses on what a state court knew and did,” Cullen v. Pinholster , 131 S. Ct. 1388, 1399 (2011), and not simply on whether (upon plenary review, save with respect to factual determinations) the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a); see Williams v. Taylor , 529 U.S. 362, 400 (2000) (O’Connor, J., concurring) (describing the “independent” nature of federal habeas review before AEDPA); Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (stating that federal habeas petitioners receive “plenary review of their constitutional claims”). With the focus correctly on what the Ohio Court of Appeals actually did in this matter—it discerned the Ohio legislature’s intent by applying Ohio’s allied offenses statute—there can be no doubt that its decision falls outside § 2254(d)(1)’s narrow exceptions to the bar on federal habeas relief, thus rendering Jackson ineligible for relief.

In Volpe , it is true, we stated in dicta that nothing would prevent the “application of Johnson in habeas review if the Ohio Supreme Court declares that its new test for allied offenses applies in the post-conviction context.” 708 F.3d at 704 n.3. If that is so, then why not apply Winnon habeas review, provided the decision—as we so far have assumed—sets forth the correct assessment of the legislature’s intent at the time of Jackson’s direct review? The reason lies in§ 2254(d)(1), as we have explained. In Volpe , although we acknowledged at the outset that § 2254(d)(1) applied, we conducted our analysis de novo, as if it did not appl y. Finding no constitutional violation, we had no need to answer the question under § 2254( d)(1) and therefore never addressed it. This is a common way of addressing habeas claims when AEDPA applies. See, e.g. , Berghuis v. Thompkins , 130 S. Ct. 2250, 2264 (2010); Knowles v. Mirzayance , 556 U.S. 111, 128 (2009); Weeks v. Angelone , 528 U.S. 225, 234 (2000). We presumably could have decided Volpe by first considering the § 2254(d)(1) question, but instead decidedNo. 11-4146 Jackson v. Smith Page 12

3 Fiore v. White , 531 U.S. 225 (2001) (per curiam), does not require a different result. Although § 2254(d)(1) potentially governed the petitioner’s due-proce ss claim, the Third Circuit denied relief using plenary review, and the Supreme Court heard the case in the same posture. to consider the claim de novo. Wetake a different route today. 3 See Lockyer , 538 U.S. at 71 (“AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1).”). Therefore, our dicta in Volpe does not help Jackson. Jackson also asks that we certify to th e Ohio Supreme Court the question whether Winnapplies to a conviction that is already fi nal. But that misses the point. We have so far assumed that Ohio law is as Jackson says it is—that Winn stated the Ohio legislature’s intent at the time his convic tion became final. Whether Jackson’s position and our assumption is correct (which is precisely what certification would tell us), habeas relief in the face of § 2254(d)(1) woul d still be unwarranted, given the lack of a state-court decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law.”

IV. For these reasons, we affirm the judgment of the district court.No. 11-4146 Jackson v. Smith Page 13

___________________________

CONCURRENCE IN PART

___________________________ HELENE N. WHITE, Circuit Judge. Concurring in part. I agree that the question whether double punishment for aggr avated robbery and attempted kidnapping violates the federal double jeopardy protection is answered by reference to the Ohio legislature’s intent, and that the Ohio legislature’s intent is to be determined by the Ohio Supreme Court. I also agree that AEDPA ci rcumscribes our analysis. However, I do not agree that habeas relief in this context depe nds on the state court’s direct statement that although the state legislature did not intend double punishment, it is nevertheless permissible, as the majority seems to hold in paraphrasing the language of McCloud v Deppisch , 409 F.3d 869, 876 (7 thCir. 2005). If it were clear that State v Winn , 905 N.E.2d 154 (Ohio 2009), expressed the Ohio Supreme Court’s interpretation of the Ohio legislature’s intent regarding whether aggravated robbery and attempted kidnapping are allied offenses of similar import as of the time Jackson’s direct appeal was decided, and if it were clear that the Ohio courts determined that Jackson had committed both offenses with the same animus , I would conclude th at the Ohio court decision is contrary to clearly established fe deral law in that it would be clear that the legislature did not intend double punishment be permitted by the Ohio court.

It is not clear that Winnsimply stated the law as it always had been. In Volpe v. Trim , 708 F.3d 688 (6 thCir. 2013), we rejected the argument that Ohio Rev. Code § 2941.25 has always had the samemeaning and therefore if State v. Rance , 710 N.E.2d 699 (Ohio 1999), incorrectly interpreted the statute, as the Ohio Supreme Court held in State v. Johnson , 942 N.E.2d 1061, 1062 (Ohio 2010), then Volpe’s constitutional right to be free from double jeopardy was violated when she was doubly punished where the legislature did not so intend. We held instead that the Ohio legislature left it to the Ohio Supreme Court to give meaning to the term “allied offenses of similar import,” and the meaning ascribed to that phrase by the court has changed over time. Volpe , 708 F.3d at 702. Here, although the Winncourt stated that its decision “was in keeping with 30No. 11-4146 Jackson v. Smith Page 14

years of precedent,” Winn , 905 N.E.2d at 158, the cases cited by the court were primarily pre- Rance cases, and none analyzed the elements of kidnapping and aggravated robbery to determine whether they were allied offenses of similar import. When Winnis compared to Rance and the cases leading up to Winn , it cannot be said that Winnclearly stated the Ohio Supreme Court’s view of the applicability of § 2941.25 to aggravated robbery and kidnapping at the time Jackson’s direct appeal was decided. Additionally, § 2941.25 also asks the question whether the defendant committed both offenses with the same animus. In Winn , the court expressly stated that it was not contested that Winn did not have a separate animus for the two offenses. Winn , 905 N.E.2d at 157. Here, although the Ohio Court of Appeals followed State v McCoy , No. 05-CA-29, 2006 WL 39100 (Ohio Ct. App. 5 thDist. Jan. 5, 2006), a case that held that aggravated robbery and kidnapping are not allied offenses of similar import, the sentencing court addressed the specifics of Jackson’s conduct and determined that if Jackson had been successful in the kidnapping, the victim would have remained in the car as Jackson fled from the area. The animus involved in carjacking the victim’s car can certainly be seen as separate from the animus involved in attempting to take the victim away with the car. Because the decision on Jackson’s appeal was not contrary to, and did not involve an unreasonable application of, federal double jeopardy law, I concur in the affirmance of the denial of Jackson’s habeas petition.