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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.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action under 28 U.S.C. § 2254 brought by Petitioner Ryan Hayes 

with the assistance of counsel. Hayes seeks relief from his conviction for aggravated vehicular 

homicide and operating a motor vehicle under the influence of alcohol and his consequent sentence 

of 7.5 years. The case is before the Court for initial review pursuant to Rule 4 of the Rules 

Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the petition 

and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge 

must dismiss the petition and direct the clerk to notify the petitioner.”

Hayes pleads one ground for relief as follows:

Ground One: Mr. Hayes was denied Due Process of Law by being 

placed twice in jeopardy by receiving multiple punishments for the 

same offense.

Supporting Facts: The jury convicted Mr. Hayes of both 

Aggravated Vehicular Homicide under R.C. 2903.06A(1)(a) and 

O.V.I. under R.C. 4511.19 and the court sentenced him to 

consecutive sentences for seven years and six months. All of the 

elements of O.V.I. are contained in 2903.06A(1)(a).
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(Petition, ECF No. 1, PageID 5.)

Procedural History

Hayes was convicted in the Montgomery County Common Pleas Court on one count of 

aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1), a felony of the second degree; 

one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2), a felony of the 

third degree; one count of OVI (.17 or greater-whole blood), in violation of R.C. 

4511.19(A)(1)(f)/(G)(1)(a), a misdemeanor of the first degree; and OVI (under the influence), in 

violation of R.C. 4511.19(A)(1)(a)/(G)(1)(a), also a misdemeanor of the first degree. State v. 

Hayes, 2016-Ohio-7241, ¶ 1, 2016 Ohio App. LEXIS 4111 (2nd Dist. Oct. 7, 2016), appellate 

jurisdiction declined, 149 Ohio St. 3d 1431 (2017), cert. den. sub. nom. Hayes v. Ohio, 138 S. Ct. 

476 (2017).

Judge Donovan recites the following underlying facts:

[*P2] The incident which forms the basis for the instant appeal 

occurred on the night of September 17, 2011, when Hayes drove his 

parents' black 1991 Lexus sedan into a stationary track hoe at a 

construction site located near Hoover Avenue in Dayton, Ohio. 

While Hayes was severely injured, his passenger and girlfriend, 

Qadriyyah Harvey, was killed after suffering blunt force trauma 

when her head hit the windshield during the crash. The evidence 

adduced during the trial established that neither Hayes nor Harvey 

were wearing their seatbelts at the time of the crash, which was 

found to have occurred at approximately 8:50 p.m.

[*P3] Hayes was removed from the vehicle by paramedics and 

taken to Miami Valley Hospital (MVH) for treatment. Harvey was 

pronounced dead at the scene of the crash. Dayton Fire Department 

firefighter/paramedic Tyler McCoy testified that he detected the 

odor of alcohol on and about Hayes' person. McCoy testified that 

the odor of alcohol persisted even after he removed Hayes from the 
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crash site. McCoy further testified that Hayes admitted that he had 

consumed alcohol prior to the crash.

[*P4] Dayton Police Detective Jonathan Seiter, a crash 

reconstructionist in the traffic services unit, was dispatched to the 

site after it was determined that the crash involved a fatality. Upon 

arriving at the scene of the accident, Detective Seiter inspected the 

vehicle. Detective Seiter testified that he detected the slight of odor 

of alcohol emanating from the interior of the [**3] vehicle. Detective 

Seiter also observed a wallet and an opened can of Sparks alcoholic 

iced tea in the driver's side floorboard of the vehicle.

[*P5] Detective Seiter then traveled to MVH in order to interview 

Hayes. Upon arriving at the hospital, Detective Seiter located Hayes 

in the trauma room. Detective Seiter testified that Hayes was 

unconscious and smelled of alcohol. Thereafter, Detective Seiter 

directed phlebotomist Ross Melton to draw Hayes' blood as part of 

an OVI kit. Prior to drawing Hayes' blood, both Detective Seiter and 

Melton attempted to wake him up, but Hayes could not be roused. 

At approximately 11:20 p.m., Melton drew two vials of Hayes' 

blood for testing. Detective Seiter took possession of Hayes' blood, 

transported it to the Safety Building, and placed it in a refrigerator. 

Detective Seiter then completed a form requesting that Hayes' blood 

be tested at the Miami Valley Regional Crime Lab (MVRCL).

[*P6] Elizabeth Kiely, a forensic toxicologist at the MVRCL, tested 

Hayes' blood samples on September 28, 2011. Kiely testified that 

the tests revealed that the two samples of Hayes' blood had an 

alcohol concentration of .173 and .169 gram percent, the average of 

which is .171 which [**4] is more than twice the legal limit of .08 

percent. Kiely testified that she also screened Hayes' blood for the 

presence of drugs. The sample tested positive for marijuana 

metabolite. Forensic toxicologist Brian Simons tested Hayes' blood 

in order to determine the amount of marijuana metabolite present. 

Simons' testing established that the amount of marijuana metabolite 

present in Hayes' blood was fourteen nanograms per milliliter.

Id. 

In his direct appeal, Hayes raised as his first assignment of error that “[t]he trial court erred 

in sentencing Defendant for both aggravated vehicular homicide under [Ohio Revised Code] §

2903.06(A)(1)(a) and O.V.I. under [Ohio Revised Code] § 4511.19(A)(1) as they were allied 
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offenses of similar import.”

In overruling this assignment of error, the Second District applied recent Ohio Supreme 

Court case law interpreting Ohio’s allied offenses statute, Ohio Revised Code § 2941.25 and 

concluded Hayes’ two convictions were not for allied offenses of similar import because 

“aggravated vehicular homicide necessarily involves causing the death of another person, the 

felony offense has a different import and significance than merely driving under the influence of 

alcohol.” Id. at ¶ 25, citing State v. Earley, 145 Ohio St. 3d 281 ¶ 15 (2015). “Conversely, a firstdegree misdemeanor violation of [Ohio Revised Code] § 4511.19(A)(1)(f) ‘occurs any time an 

individual drives under the influence of alcohol or drugs and one who does so commits this offense 

regardless of any subsequent consequences that occur due to the impaired driver’s actions.’”

Hayes at ¶ 25, again quoting Earley at ¶ 15.

Analysis

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution 

affords a defendant three basic protections:

It protects against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the same 

offense after conviction. And it protects against multiple 

punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717 

(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth 

Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
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Petitioner argued his First Assignment of Error to the Second District as a Double Jeopardy 

violation, relying on Benton, supra, and United States v. Dixon, 509 U.S. 688 (1993)(Appellant’s 

Brief, pp. 8-9, available at www.clerk.co.montgomery.oh.us/pro, visited February 28, 2018). He 

recognized that State v. Earley, which was then pending in the Ohio Supreme Court, “will 

presumably decide the issue . . . .” and asked the Second District to wait to decide his case until 

Earley was decided. Id. at p. 9. As noted above, the Second District did wait and then expressly 

applied the Earley decision in deciding Hayes’ appeal.

When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, ___, 

131 S.Ct. 770, 785 (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 (6th Cir. 2012).

A state court decision can constitute an “adjudication on the merits” entitled to deference 

under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim 

or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court 

held:

By its terms § 2254(d) bars relitigation of any claim "adjudicated on 

the merits" in state court, subject only to the exceptions in §§ 

2254(d)(1) and (d)(2). There is no text in the statute requiring a 

statement of reasons. The statute refers only to a "decision," which 

resulted from an "adjudication." As every Court of Appeals to 

consider the issue has recognized, determining whether a state 

court's decision resulted from an unreasonable legal or factual 

conclusion does not require that there be an opinion from the state 

court explaining the state court's reasoning. See Chadwick v. 

Janecka, 312 F.3d 597, 605-606 (CA3 2002); Wright v. Secretary 
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for Dept. of Corrections, 278 F.3d 1245, 1253-1254 (CA11 2002); 

Sellan v. Kuhlman, 261 F.3d 303, 311-312 (CA2 2001); Bell v. 

Jarvis, 236 F.3d 149, 158-162 (CA4 2000) (en banc); Harris v. 

Stovall, 212 F.3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196 

F.3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F.3d 

866, 869 (CA8 1999). And as this Court has observed, a state court 

need not cite or even be aware of our cases under § 2254(d). Early 

v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) 

(per curiam). Where a state court's decision is unaccompanied by an 

explanation, the habeas petitioner's burden still must be met by 

showing there was no reasonable basis for the state court to deny 

relief. This is so whether or not the state court reveals which of the 

elements in a multipart claim it found insufficient, for § 2254(d) 

applies when a "claim," not a component of one, has been 

adjudicated.

Id. at 784. “This Court now holds and reconfirms that § 2254(d) does not require a state court to 

give reasons before its decisions can be deemed to have been ‘adjudicated on the merits.’” Id. at 

785. "When a federal claim 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.” Brown v. Bobby, 656 F.3d 325, 329

(6th Cir. 2011), quoting Harrington,131 S. Ct. at 784-85.

The test for whether two offenses constitute the same offense for Double Jeopardy purposes 

is “whether each offense contains an element not contained in the other.” United States v. Dixon, 

509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). Where two 

offenses are the same for Blockburger purposes, multiple punishments can be imposed if the 

legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344 (1981); Missouri 

v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); and Garrett v. 

United States, 471 U.S. 773, 779 (1985). White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 2009)(“The 

current jurisprudence allows for multiple punishment for the same offense provided the legislature 

has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, 
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or overlapping offenses.”) The Blockburger test is a rule of statutory construction, not a 

constitutional test in itself. Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013), citing Albernaz. “When 

assessing the intent of a state legislature, a federal court is bound by a state court’s construction of 

that state’s own statutes.” Volpe, citing Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989).

An Ohio court of appeals decision of a double jeopardy claim which is limited to the 

application of Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy 

claim. Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632 

(1999), overruled by State v. Johnson, 128 Ohio St. 3d 153 (2010). “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.’” Jackson v. Smith, 745 F.3d 206 

(6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983).

The Second District’s decision makes it clear that the Ohio legislature intended multiple 

punishments for these two offenses. This Court is bound by that interpretation of Ohio law. 

Therefore the Second District’s decision is entitled to deference under 28 U.S.C. § 2254(d)(1) and 

is not an objectively unreasonable application of the relevant United States Supreme Court 

precedent.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the 

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this 
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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.

February 28, 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 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).