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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

RYAN M. HAYES,

Petitioner, : Case No. 3:18-cv-055

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

TIM BUCHANAN, Warden,

 Noble Correctional Institution

:

Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 3) to the 

Magistrate Judge’s Report and Recommendations (ECF No. 2) recommending the Petition be 

dismissed with prejudice. Judge Rice has recommitted the case for reconsideration in light of the

Objections (ECF No. 4). 

Petitioner pleaded one ground for relief, to wit, that his punishments for both aggravated 

vehicular homicide and operating a motor vehicle under the influence of alcohol arising out of 

the same incident violated the Double Jeopardy Clause (Petition, ECF No. 1, PageID 5). In 

recommending this claim be rejected, the Magistrate Judge relied on Supreme Court case law, 

including Missouri v. Hunter, 459 U.S. 359 (1983). 

Petitioner’s Objections read in their entirety:

Petitioner agrees that Missouri v. Hunter, 459 U.S. 359 (1983), 

allows the multiple punishments prescribed in this case. That 

decision was never cited by opposing counsel or the Ohio Courts 

in their opinion. Petitioner's objections are based solely on the 

dissenting opinion in Missouri v. Hunter, supra, and the belief that 
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the 35-year-old decision, if reconsidered, would be overturned by 

the U.S. Supreme Court.

(Objections, ECF No. 3, PageID 24). 

As the Report noted, a federal habeas court can grant relief in the face of a contrary 

decision on a federal constitutional question by the state courts only if the state court decision is 

an objectively unreasonable application of Supreme Court case law (Report, ECF No. 2, PageID 

20, citing 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100 (2011); Brown v. 

Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) 

v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848, 852 (6th Cir. 2012). The 

relevant Supreme Court decisions are those that have been handed down as of the date the state 

courts reach their decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, supra.

As the Objections concede, the relevant Supreme Court precedent at the time the Second 

District decided this case was Hunter, supra, and Hunter supports the Second District’s decision. 

Thus, even if the Supreme Court reversed Hunter, Hayes would not be entitled to relief because 

Hunter would still have been the governing law at the time the Second District decided the case. 

Under Teague v. Lane, 489 U.S. 288 (1989), a new rule from the Supreme Court on a procedural 

matter is not applicable to cases on collateral review unless it is a “watershed” rule and reversing 

Hunter would not be such a rule.

Nor does it seem to the Magistrate Judge that Hunter is likely to be reversed in the near 

term. Petitioner offered the Supreme Court an opportunity when he sought certiorari in this case 

and the Court declined the invitation. Hayes points to no Supreme Court case law since Hunter

which has questioned its vitality. The two dissenting justices in Hunter (Marshall and Stevens) 

have long since retired and by most calculations have not been replaced by Justices as favorably 

inclined to criminal defendants as those two were. However correct or desirable Justice 
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Marshall’s position in Hunter may be, it was not the law when the Second District decided this 

case.

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again 

respectfully recommends that the Petition be dismissed with prejudice. Because reasonable 

jurists would not disagree with this conclusion, Petitioner should be denied a certificate of 

appealability and the Court should certify to the Sixth Circuit that any appeal would be 

objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

March 14, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 
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portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).