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 _________________

MORRIS JACKSON,

Petitioner-Appellant,

v.

KEITH SMITH, 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, UNIVERSITY OF CINCINNATI APPELLATE

CLINIC, Cincinnati, Ohio, for Appellant. Jerri L. Fosnaught, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Colter L.

Paulson, SQUIRE SANDERS LLP, Cincinnati, Ohio, for Appellant. Jerri L. Fosnaught,

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

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 he claims that the consecutive sentences

imposed on his Ohio convictions for aggravated robbery and attempted kidnapping

1
No. 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 convicted Jackson of aggravated robbery and

attempted kidnapping, among other crimes. See Ohio Rev. Code §§ 2911.01(A)(1)

(aggravated robbery), 2905.01(A)(2) (kidnapping), 2923.02(A) (attempt). The factual

basis for these convictions involved an attempted bank robbery. Driving a stolen vehicle

and wearing masks to cover their faces, Jackson and a man named Daniel Ivery arrived

at the National City Bank in Canton, Ohio. The two men approached the bank but were

confronted by an off-duty Canton police officer working security for the bank. The

officer drew his weapon and yelled “police!” several times. Following an exchange of

gunfire between Ivery and the officer, Jackson ran across the street towards a restaurant.

When he reached the parking lot, he approached Sara Bineger, who was seated in the

driver’s seat of her vehicle, waiting to pull out of the lot. Jackson opened the car door,

pointed a gun at Bineger, and told her to “scoot over.” When she hesitated, Jackson tried

to sit on her, at which point Bineger escaped through the passenger door. Jackson then

drove away in Bineger’s car.

At sentencing, Jackson argued that the offenses of aggravated robbery and

attempted kidnapping were allied offenses of similar import under Ohio Revised Code

§ 2941.25 and asked the court to merge the kidnapping conviction into the robbery

conviction. The court denied the request, finding the offenses to be of dissimilar import.

Applying the Ohio Supreme Court’s then-applicable framework laid out in State v.

Rance, 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 [commit] the offense of kidnapping without

committing the offense of aggravated robbery and vice versa.” The court imposed

consecutive sentences of ten years on the aggravated robbery offense and five years on

the attempted kidnapping offense. The Ohio Court of Appeals affirmed the trial court’s

rejection of Jackson’s merger argument, relying on the unpublished decision in State v.
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 Jeopardy Clause. The district court denied

relief on this claim but granted a certificate 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 the 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 claim
No. 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 the 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 adjudicated 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 application 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 necessarily resolved 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 coextensive, the fact that these claims are so similar makes it

unlikely that the California Court 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 decision
No. 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 the 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 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).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 recognized, “[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 district 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).” He
No. 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 contrary to, 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 offenses 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). “Accordingly, 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 intent 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, 344
No. 11-4146 Jackson v. Smith Page 7

(1981) (“The question of what punishments are constitutionally permissible is not

different from the question of what punishments 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 should 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 offenses 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 two offenses are allied, a court must consider

the statutory elements in the abstract, as opposed 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, whether the statutory elements of the crimes

correspond to such a degree that the commission 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 Ohio Court 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 the 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 that case, the Ohio Supreme Court overruled
No. 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 defendant 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 determine 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 Johnson applies 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 punished cumulatively, the consecutive sentences

imposed on [Jackson] were nonetheless acceptable 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 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 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 our case. At worst, the state court incorrectly applied Ohio’s
No. 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 Winn on 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 apply. 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 decided
No. 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-process 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. We take 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 the Ohio Supreme Court the question whether

Winn applies to a conviction that is already final. 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 conviction 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) would 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 aggravated 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 circumscribes our analysis. However, I do not

agree that habeas relief in this context depends 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 (7th Cir. 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 that the Ohio court

decision is contrary to clearly established federal 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 Winn simply stated the law as it always had been. In Volpe v.

Trim, 708 F.3d 688 (6th Cir. 2013), we rejected the argument that Ohio Rev. Code

§ 2941.25 has always had the same meaning 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 Winn court stated that its decision “was in keeping with 30
No. 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 Winn is

compared to Rance and the cases leading up to Winn, it cannot be said that Winn clearly

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. 5th Dist. 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.