RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0184p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CHARLES GOODELL,

 Petitioner-Appellee,

v.

JESSE WILLIAMS, Warden,

 Respondent-Appellant.

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No. 09-4338

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 08-02479—James S. Gwin, District Judge.

Argued: June 10, 2011

Decided and Filed: July 11, 2011 

Before: COLE, McKEAGUE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Elizabeth A. Matune, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Katherine A. Szudy, OHIO PUBLIC DEFENDER’S

OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Elizabeth A. Matune, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Katherine

A. Szudy, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Warden Jesse Williams appeals from an order of

the district court conditionally granting habeas relief to petitioner Charles Goodell. The

district court determined that the process by which Goodell was resentenced in the Lucas

County (Ohio) Court of Common Pleas, resulting in a sentence longer than the original

sentence he had successfully challenged, gave rise to a presumption of vindictiveness.

1
No. 09-4338 Goodell v. Williams Page 2

Finding that the presumption was not rebutted by the Warden, the district court ruled that

Goodell’s resentencing violated his due process rights. Further, the court held the Ohio

Court of Appeals’ contrary ruling was contrary to clearly established federal law. We

conclude that the circumstances of Goodell’s resentencing do not give rise to a

presumption of vindictiveness, that even if such a presumption applied, it was rebutted,

and that, in any event, the Ohio Court of Appeals’ adjudication of these issues was

neither contrary to nor an unreasonable application of clearly established federal law.

For the reasons that follow, the district court’s ruling is reversed. 

I

On April 9, 2002, petitioner Goodell was found guilty in the Lucas County Court

of Common Pleas of one count of rape, two counts of aggravated burglary, and two

counts of felonious assault—all offenses having been committed during two separate

incidents on October 31, 2000. The trial proofs showed that Goodell was one of three

men hired by a Toledo landlord to use force to collect overdue rent payment from

particular tenants, a family of four. The defendants performed their work with zeal.

Forcing their way into the tenants’ apartment in the early morning hours, they beat the

father of the family to the point that he needed medical treatment at a local hospital.

Within hours, after he returned from the hospital, the defendants returned to continue

their assault. When the father escaped through the bathroom window, two of the

defendants pursued him. Defendant Goodell, however, stayed behind and sexually

assaulted his wife. Goodell’s co-defendants cooperated with the prosecution. In the

ensuing jury trial, Goodell did not testify and was found guilty as charged.

 The day after the jury returned its verdict, the trial court, Honorable Judith Ann

Lanzinger, sentenced Goodell—without the benefit of a presentence report—to a prison

term of five years for the rape conviction and four years for each of the other offenses.

The four-year sentences were to run concurrently with each other but consecutively to

the five-year sentence, yielding a total prison sentence of nine years. On October 29,

2004, the Ohio Court of Appeals reversed this sentence, concluding that Judge Lanzinger

had not adequately justified the imposition of consecutive sentences by making the
No. 09-4338 Goodell v. Williams Page 3

findings required by state law. State v. Goodell, No. L-02-1133, 2004 WL 2426238

(Ohio App. 6 Dist. Oct. 29, 2004).

On remand to Lucas County, Goodell’s resentencing was conducted by a

different judge, Honorable Gary G. Cook. Judge Cook understood that he was to

conduct a plenary resentencing. He ordered the preparation of a presentence report and

reviewed the entire trial transcript. The resentencing hearing was conducted on June 23,

2005. Judge Cook determined that the original sentence imposed by Judge Lanzinger

was “woefully inadequate” considering the factual circumstances of the case and the

defendant’s background. Judge Cook imposed a prison sentence of seven years for the

rape, four years each for the first burglary and assault, and five years each for the second

burglary and assault. Judge Cook ruled that the two four-year sentences for the first

burglary and assault would run concurrently with each other, as would the two five-year

sentences for the latter burglary and assault. However, he ruled that the combined fouryear sentence would run consecutive to the combined five-year sentence and consecutive

to the seven-year sentence, yielding a total prison term of sixteen years.

 In response to defendant’s argument that imposition of this substantially harsher

sentence, after he had successfully appealed his original sentence, smacked of

vindictiveness, Judge Cook took pains to explain his rationale. First, Judge Cook made

note of Goodell’s extensive criminal history, including two felony convictions and

twenty-four misdemeanor convictions, of which Judge Lanzinger had not been fully

aware, and which reflected disrespect for the law, even an attitude of lawlessness. Judge

Cook acknowledged that, after reading the trial record “several times” and reviewing the

circumstances of Goodell’s offenses, he had gotten “whipped up” about it—but he

deemed this reaction entirely natural and appropriate because this was a “heinous

crime.” Judge Cook denied that he harbored any vindictiveness, explaining that he was

sentencing Goodell only because directed to do so by the Ohio Court of Appeals, which

was not satisfied with Judge Lanzinger’s explanation of the original sentence. 

Further, Judge Cook justified his decision to impose consecutive sentences by

explaining that there were actually three distinct sets of crimes here—the first burglary
No. 09-4338 Goodell v. Williams Page 4

and assault, the second burglary and assault, and the sexual assault—and each set of

crimes involved a separate animus. Addressing the relevant factors under Ohio law,

Judge Cook explained that consecutive sentences were needed to protect the public from

future crimes and punish the offender; that the nature of the offenses was such as to

cause harm so great or unusual that no single sentence would adequately reflect the

seriousness of defendant’s conduct; and that defendant’s extensive criminal history

demonstrated the need for consecutive sentences. 

Defendant appealed this sentence, too, and again he obtained relief. On June 30,

2006, the Ohio Court of Appeals ruled that the sentencing court had exceeded its

authority. State v. Goodell, No. L-05-1262, 2006 WL 2242893 (Ohio App. 6 Dist. June

30, 2006). The appellate court ruled that it had vacated only a portion of the original

sentence; that the terms of incarceration imposed in the original sentence were res

judicata or “law of the case;” and that Judge Cook was not authorized to conduct a de

novo resentencing, but was constrained to address only the question of whether and how

the sentences would run concurrently and/or consecutively. The Court of Appeals thus

vacated the sixteen-year sentence and remanded.

Judge Cook undertook the second resentencing on December 19, 2006. He

recognized that the Court of Appeals had not ordered that the original sentence be

reimposed, but that he was to abide by the terms of incarceration originally imposed by

Judge Lanzinger. Consistent with that direction and with his own earlier assessment that

three distinct sets of crimes had been committed, Judge Cook ruled that the four-year

combined sentence for the first burglary and assault would run consecutively to the fouryear combined sentence for the second burglary and assault, and both four-year terms

would run consecutively to the five-year sentence for the sexual assault. This resulted

in a total prison sentence of thirteen years.

Goodell appealed again, but the Ohio Court of Appeals affirmed. State v.

Goodell, No. L-07-1016, 2007 WL 2874334 (Ohio App. 6 Dist. Sept. 28, 2007). The

appellate court rejected Goodell’s argument that the harsher sentence that resulted after

his successful appeals was presumptively vindictive. The court further found no
No. 09-4338 Goodell v. Williams Page 5

1

Since the notice of appeal was filed, both the district court and this court have denied the

Warden’s motions to stay the district court’s ruling. As a consequence, Goodell was released from the

custody of the Ohio Department of Rehabilitation and Correction on October 8, 2010, as though his prison

sentence were governed by the original sentence imposed by Judge Lanzinger—even though the habeas

writ did not actually issue. Because Goodell was incarcerated at the time his petition was filed and is

presently subject to parole supervision, the “in-custody” requirement for relief in habeas remains satisfied

and the issues presented by this appeal have not been mooted. See Akrawi v. Booker, 572 F.3d 252, 255

n.1 (6th Cir. 2009).

evidence of vindictive motive on the part of the sentencing judge. The Ohio Supreme

Court refused to accept the appeal for review.

Having thus exhausted his claim of vindictiveness in the state courts, Goodell

filed the instant habeas petition in the Northern District of Ohio on October 10, 2008.

The matter was referred to a magistrate judge, who issued a report and recommendation

concluding that the Ohio Court of Appeals’ holding that Goodell’s thirteen-year sentence

had not been shown to be presumptively or actually vindictive was not objectively

unreasonable. The magistrate judge thus recommended the petition be denied. Goodell

objected. On September 29, 2009, the district court issued its opinion, declining to adopt

the report and recommendation. Goodell v. Williams, 676 F.Supp.2d 640 (N.D. Ohio

2009). The district court held that the circumstances of Goodell’s resentencings gave

rise to a presumption of vindictiveness that had not been rebutted by the Warden and that

the Ohio Court of Appeals’ contrary ruling was contrary to clearly established federal

law. The district court ordered that the writ be “conditionally granted,” but did not

identify the “condition.” The Warden timely appealed.1

II 

A. AEDPA Review

We review the district court’s legal conclusions and rulings on mixed questions

of law and fact de novo, and we review its factual findings for clear error. Boykin v.

Webb, 541 F.3d 638, 642 (6th Cir. 2008). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), the federal courts may not grant habeas relief on any claim that

was adjudicated on the merits in the state courts unless the adjudication resulted in a

decision that: (1) was contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court; or (2) was based on an
No. 09-4338 Goodell v. Williams Page 6

unreasonable determination of the facts in light of the evidence presented to the state

courts. 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may

grant the writ only if the state court arrived at a conclusion opposite to that reached by

the Supreme Court on a question of law, or if the state court decided the case differently

than the Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). 

Under the “unreasonable application” clause, a federal court may grant the writ

only if the state court identified the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applied that principle to the facts of the petitioner’s

case. Id. Yet, “a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, to

warrant habeas relief, the application must be found to be “objectively unreasonable.”

Id. at 409. “AEDPA thus imposes a ‘highly deferential standard for evaluating statecourt rulings.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy,

521 U.S. 320, 333 n.7 (1997)).

 In determining whether a state court decision is contrary to or an unreasonable

application of clearly established Supreme Court precedent, a federal court may look

only to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the

time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003);

Williams, 529 U.S. at 412. The “clearly established federal law” is “the governing legal

principle or principles set forth by the Supreme Court.” Lockyer, 538 U.S. at 71-72.

“[T]he ‘lack of an explicit statement’ of a particular rule by the Supreme Court ‘is not

determinative’ of clearly established law, since ‘the Court has made clear that its

relevant precedents include not only bright-line rules but also the legal principles and

standards flowing from precedent.’” Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.

2005) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). The court may

also look to lower courts of appeals’ decisions to the extent they illuminate the analysis

of Supreme Court holdings in determining whether a legal principle had been clearly
No. 09-4338 Goodell v. Williams Page 7

established by the Supreme Court. Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir.

2010).

B. State Court Ruling

Here, the relevant state-court decision is the September 29, 2007 Ohio Court of

Appeals ruling that Goodell had not made the requisite showing of vindictiveness to

warrant relief. State v. Goodell, 2007 WL 2874334. In reaching its decision, the

appellate court correctly identified two important Supreme Court decisions, North

Carolina v. Pearce, 395 U.S. 711 (1969), and Texas v. McCullough, 475 U.S. 134

(1986). In Pearce, the Court recognized that where a defendant has successfully

challenged his conviction and then is convicted again on retrial, due process is violated

if the sentence imposed on resentencing is influenced by vindictiveness on the part of

the sentencing court. 395 U.S. at 725. Recognizing that retaliatory motivation could be

difficult to prove, the Court held that whenever a more severe sentence is imposed on

resentencing, the reasons, based on objective information, must affirmatively appear in

the record. Id. at 726. Because no record of such reasons had been made in the two

cases then before it, the Pearce Court upheld the award of habeas relief in both cases.

Although the notion of a “presumption” appears nowhere in the Pearce opinion, the

ruling has since been read to apply “a presumption of vindictiveness, which may be

overcome only by objective information in the record justifying the increased sentence.”

United States v. Goodwin, 457 U.S. 368, 374 (1982) (applying the presumption but

finding it rebutted by the sentencing court’s careful explanation of reasons for imposing

a greater sentence). 

In McCullough, the Court revisited the issue of vindictiveness and the teaching

of Pearce. After McCullough was initially convicted of murder and sentenced by the

jury to a prison sentence of twenty years, the trial court granted his motion for new trial

based on prosecutorial misconduct. McCullough, 475 U.S. at 135-36. McCullough had

a second jury trial, with the same trial judge presiding. After the jury found him guilty,

McCullough elected to be sentenced by the trial judge, who sentenced him to fifty years

in prison. The Supreme Court declined to apply a presumption of vindictiveness for two
No. 09-4338 Goodell v. Williams Page 8

reasons. First, the Court observed that the trial judge herself had granted McCullough’s

motion for new trial. Unlike a judge whose ruling had been reversed by an appellate

court, this trial judge was deemed not to have “motivation to engage in self-vindication.”

Id. at 138-39. Second, the presumption was deemed “inapplicable because different

sentencers assessed the varying sentences that McCullough received.” Id. at 140.

Moreover, even if the presumption were deemed to apply, the Court held that it had been

rebutted by the trial court’s findings based on objective information justifying the

increased sentence.

Relying on these authorities, as well as state court precedents applying them, the

Ohio Court of Appeals concluded that the presumption of vindictiveness did not apply

in this case because the harsher thirteen-year sentence was imposed by a different

sentencer than had imposed the original nine-year sentence. Goodell, 2007 WL 2874334

at *3. The court also determined that Goodell had failed to identify evidence of actual

vindictiveness. Id. at *3-4. The court thus affirmed the thirteen- year prison sentence.

C. District Court Ruling

1. Presumption of Vindictiveness

With reference to the same Supreme Court authorities, the district court

concluded that Goodell’s case “is on all fours with Pearce” and that the narrow holding

of Pearce remained the governing and clearly established federal law at the time of

Goodell’s resentencings. Goodell, 676 F.Supp.2d at 644-47. Applying Pearce, the court

concluded that the presumption of vindictiveness does apply in this case. The Ohio

Court of Appeals’ contrary holding was thus deemed to be contrary to clearly established

federal law. Id. at 645. Further, the court observed in a footnote that the presumption

had not been rebutted. Id. at 647 n.7. Therefore, habeas relief was conditionally

granted.

The district court’s ruling rests fundamentally on the determination that Pearce

defines the governing “clearly established federal law.” Indeed, Pearce is the seminal

Supreme Court holding, recognizing that judicial vindictiveness in sentencing violates
No. 09-4338 Goodell v. Williams Page 9

due process. Yet, as the district court recognized, the Supreme Court has had numerous

occasions in the last forty years to narrow, clarify and explain the import of Pearce in

the context of analogous resentencing situations. In McCullough, the Court recounted

some of this history and attempted to distill its wisdom:

Beyond doubt, vindictiveness of a sentencing judge is the evil the Court

sought to prevent rather than simply enlarged sentences after a new trial.

The Pearce requirements thus do not apply in every case where a

convicted defendant receives a higher sentence on retrial. Like other

“judicially created means of effectuating the rights secured by the

[Constitution],” Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046,

49 L.Ed.2d 1067 (1976), we have restricted application of Pearce to

areas where its “objectives are thought most efficaciously served,” 428

U.S. at 487, 96 S.Ct. at 3049. Accordingly, in each case, we look to the

need, under the circumstances, to “guard against vindictiveness in the

resentencing process.” Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct.

1977, 1982, 36 L.Ed.2d 714 (1973) (emphasis omitted). For example, in

Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970),

we held that Pearce did not apply when the defendant conceded and it

was clear that vindictiveness had played no part in the enlarged sentence.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584

(1972), we saw no need for applying the presumption when the second

court in a two-tier trial system imposed a longer sentence. In Chaffin,

supra, we held Pearce not applicable where a jury imposed the increased

sentence on retrial. Where the prophylactic rule of Pearce does not

apply, the defendant may still obtain relief if he can show actual

vindictiveness upon resentencing. Wasman v. United States, 468 U.S.

559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984).

McCullough, 475 U.S. at 138. 

The McCullough Court thus recognized that the Pearce presumption does not

apply in every case where a convicted defendant receives a higher sentence on retrial,

but only where the circumstances of the particular case give rise to a need to guard

against vindictiveness. The presumption is inappropriate if there is “no realistic motive

for vindictive sentencing.” Id. at 139. See also Alabama v. Smith, 490 U.S. 794, 799-

800 (1989) (recognizing that the presumption applies only where the circumstances give

rise to a “reasonable likelihood” that the sentence increase was the product of actual

vindictiveness); Goodwin, 457 U.S. at 373 (same). The McCullough Court held that the

circumstances do not give rise to a need to apply the presumption where, as here, the
No. 09-4338 Goodell v. Williams Page 10

varying sentences were imposed by different sentencers. McCullough, 475 U.S. at 140.

In such circumstances, the court noted, “a sentence ‘increase’ cannot truly be said to

have taken place.” Id.

 The district court acknowledged that McCullough represented a “direct challenge

to Pearce.” Goodell, 676 F.Supp.2d at 645. Noting, however, that McCullough had

stopped short of overruling Pearce, the district court narrowly construed McCullough

as declining to extend the Pearce presumption, not in all cases where varying sentences

are imposed by different sentencers, but only where, as in McCullough, the first

sentencer was a jury and the second a judge. Id. at 646. This narrowing construction of

McCullough’s broad language was justified, the district court reasoned, because Pearce

itself had involved varying sentences imposed by different judges. The district court

stated that the McCullough Court “had no occasion to decide whether the presumption

applies when the second sentencer is a different judge on the same court as the judge

who originally sentenced the defendant.” Id. 

Yet, the McCullough Court itself expressly disavowed this construction in

footnote 3:

Pearce itself apparently involved different judges presiding over the two

trials, a fact that has led some courts to conclude by implication that the

presumption of vindictiveness applies even where different sentencing

judges are involved. See, e.g., United States v. Hawthorne, 532 F.2d 318,

323 (3d Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177

(1976). That fact, however, may not have been drawn to the Court's

attention and does not appear anywhere in the Court's opinion in Pearce.

Clearly the Court did not focus on it as a consideration for its holding.

See Hardwick v. Doolittle, 558 F.2d 292, 299 (5th Cir. 1977), cert.

denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). Subsequent

opinions have also elucidated the basis for the Pearce presumption. We

held in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d

714 (1973), for instance, that the presumption derives from the judge's

“personal stake in the prior conviction,” id., at 27, 93 S.Ct., at 1983, a

statement clearly at odds with reading Pearce to answer the twosentencer issue. We therefore decline to read Pearce as governing this

issue. See also n. 4, infra.
No. 09-4338 Goodell v. Williams Page 11

McCullough, 475 U.S. at 140 n.3. The McCullough Court thus expressly rejected the

notion that Pearce stands for the proposition that the presumption applies where there

are two different sentencers absent other circumstances that give rise to a need to protect

against vindictiveness. In Pearce, McCullough noted, there were “other circumstances”

that drove the holding; namely, the State’s failure to “offer ‘any reason or justification’

for the increased sentence.” Id. at 142 n.4 (quoting Pearce, 395 U.S. at 726).

The district court did not overlook McCullough’s instruction, but concluded:

“Nevertheless, McCullough does not change the status of Pearce’s holding as clearly

established law.” Goodell, 676 F.Supp.2d at 646. The district court thus implicitly

considered McCullough’s unambiguous teaching to be dicta beyond the scope of its

holding and therefore impotent to alter the state of clearly established federal law.

But we find additional guidance in McCullough’s note 4, where the Court further

explained the background of the Pearce decision:

Pearce was argued on the assumption that the Constitution either

absolutely forbade or permitted increased sentences on retrial. None of

the briefs advanced the intermediate position ultimately relied upon by

the Court that the Constitution permits increased sentences only in

certain circumstances. . . . Thus, . . . “in formulating the standard set

forth in Pearce, the Court was completely without the‘sharpen[ing of] the

presentation of issues’ provided by the adversary process, ‘upon which

the court so largely depends for illumination of difficult constitutional

issues.’” . . . But even if Pearce could be read to speak definitively to

this situation, we are not reluctant to tailor judicially created rules to

implement constitutional guarantees, like the Pearce rule . . . when the

need to do so becomes apparent.

McCullough, 475 U.S. at 142 n.4 (citations omitted). Again, the Court endeavored to

make clear that the rule Pearce stands for is not as broad as its language could be

construed to mean and that it is, as a judicially created prophylactic rule, subject to

“tailoring” by the Court. The Court unmistakably undertook a measure of tailoring in

McCullough. It can hardly be denied, on a fair reading of McCullough, that the Court

intended to make it clear that a presumption of vindictiveness does not apply where an

increased sentence is imposed by a different sentencer absent other circumstances
No. 09-4338 Goodell v. Williams Page 12

demonstrating a need to guard against vindictiveness. In fact, the McCullough majority

opinion concludes: “It is appropriate that we clarify the scope and thrust of Pearce, and

we do so here.” Id. at 144. 

The “clearly established law” inquiry begins with the holdings, as opposed to the

dicta, of the Supreme Court’s decisions. Williams, 529 U.S. at 412. In determining the

“governing legal principles,” Lockyer, 538 U.S. at 71-72, to be derived from the

Supreme Court’s holdings, we are hardly at liberty to ignore how the Supreme Court

itself has later characterized, defined and “tailored” its holdings by the time of the state

court decision being reviewed. In McCullough, the Supreme Court took pains to make

clear that Pearce does not stand for the proposition that a presumption of vindictiveness

arises whenever a defendant who has successfully challenged his conviction or sentence

is subjected to harsher punishment on resentencing. Rather, McCullough teaches that

the principle to be gleaned from Pearce, viewed in light of numerous intervening

Supreme Court decisions, is that the presumption applies where the circumstances

demonstrate a need to protect against vindictiveness. Or, in the terms used in Alabama

v. Smith, 490 U.S. at 799-800, the presumption applies only where the circumstances

give rise to a “reasonable likelihood” that the sentence increase was the product of

judicial vindictiveness. 

That this clarified principle derived from McCullough has become “clearly

established” is also attested to by our own prior precedents. See Gonzales v. Wolfe, 290

F. App’x 799, 812-13 (6th Cir. 2008) (following McCullough and holding presumption

not warranted where different judge imposed sentence after defendant’s successful

appeal). In Gauntlett v. Kelley, 849 F.2d 213 (6th Cir. 1988), too, we applied

McCullough’s teaching as clarifying and defining the scope of Pearce: 

The Pearce presumption of vindictiveness does not apply where the

second sentencer “has no motivation to engage in self-vindication,” . . .

and where the possibility of vindictiveness is highly speculative. . . .

Further, when the sentences are imposed by different sentencers, the

presumption does not apply because there has been no real “increase” in

the sentence.
No. 09-4338 Goodell v. Williams Page 13

2

Nor does Supreme Court precedent clearly establish that the presumption applies to protect

against “institutional vindictiveness,” as opposed to just “personal vindictiveness,” as suggested by the

district court. See Goodell, 676 F.Supp.2d at 646-47. McCullough recognizes that the presumption of

vindictiveness stemming from Pearce “derives from the judge’s ‘personal stake in the prior conviction.’”

McCullough, 475 U.S. at 140 n.3 (quoting Chaffin, 412 US. at 27) (emphasis added). There is little

support for the notion that “institutional vindictiveness” is or should be recognized as a threat to the due

process rights of defendants subject to resentencing. The McCullough Court declined to accept such a

skeptical view of judicial temperament generally and of the judiciary as an institution, see id. at 139, and

so do we. Of course, evidence of actual vindictiveness, personal or institutional, can and should be

addressed on a case by case basis. There is no such evidence in this case. 

3

Even if the applicability of the Pearce presumption were not undermined by the fact of different

sentencers, the district court’s conclusion that Pearce controls and that the state court’s ruling is contrary

to Pearce would still be erroneous. The district court held that the Ohio Court of Appeals’ decision

satisfied the “contrary to” prerequisite for habeas relief under § 2254 because the facts of Goodell’s

resentencing situation are “materially indistinguishable” from those presented in Pearce. As explained

above, however, the instant facts are materially distinguishable from those in Pearce in that Goodell’s

sentence increase was accompanied by an explicit statement of legitimate reasons, whereas no justification

was offered for Pearce’s sentence increase “beyond the naked power to impose it.” Pearce, 395 U.S. at

726. 

Id. at 217 (citations omitted). Notably, seven of our sister circuits have similarly

concluded that the presumption does not apply when the varying sentences are imposed

by different judges. See United States v. Rodriguez, 602 F.3d 346, 358 (5th Cir. 2010)

(collecting cases).

Accordingly, we conclude the district court erred in its determination that the

Ohio Court of Appeals’ decision, applying the principles enunciated in McCullough, is

contrary to clearly established federal law.2

 Rather, the Ohio Court of Appeals’

determination that the presumption of vindictiveness does not apply in this case is

entirely consonant with governing federal law. The harsher thirteen-year sentence

received by Goodell was imposed by a judge different from the judge who had imposed

the original nine-year sentence. This fact clearly undermines the applicability of the

presumption. Apart from the fact that Goodell’s ultimate sentence is longer than his

original sentence, there are no other circumstances suggesting a need for the

presumption to protect against vindictiveness. Quite to the contrary, Judge Cook’s

careful explanation of the reasons for the longer sentence, spelled out in the course of

two resentencing hearings and summarized above, directly refutes the notion that

vindictiveness played a role. Hence, the Ohio Court of Appeals’ determination that the

presumption was not applicable is neither contrary to nor an unreasonable application

of clearly established federal law.3
No. 09-4338 Goodell v. Williams Page 14

2. Actual Vindictiveness

Moreover, we find the district court erred in its conclusion that the presumption

had not been rebutted. The district court simply stated that the presumption was not

rebutted without any discussion of the record evidence that either supported or refuted

the presumption. Goodell, 676 F.Supp.2d at 647 n.7. Though the Warden did not argue

the rebuttal issue extensively at the district court level, it was nonetheless incumbent on

the district court, before habeas relief could be granted, to hold that the state court’s

ruling was contrary to or an unreasonable application of federal law. 28 U.S.C.

§ 2254(d)(1). The Ohio Court of Appeals, after concluding that the presumption was not

applicable, did not address whether the presumption was rebutted. However, the

appellate court properly went on to consider the evidence of actual vindictiveness, and

found none. Goodell, 2007 WL 2874334 at *3-4. The appellate court specifically

considered Judge Cook’s statement to Goodell, at the close of the second resentencing

hearing, “Okay. We’ll see you back here probably in a couple of years.” The court

reasonably rejected the argument that this statement evidenced vindictiveness, finding

that it simply reflected Judge Cook’s cognizance of the pattern that had been established

as Goodell’s two prior sentences had been vacated and remanded. 

Moreover, and more importantly, because Goodell’s counsel astutely raised the

question of vindictiveness at the first resentencing hearing, Judge Cook took the

opportunity to carefully explain his thinking. After thoroughly reviewing the trial

transcript and the newly prepared presentence report (containing objective information

not available to the first sentencing judge), Judge Cook explained that his decision to run

some of the sentences consecutively was driven by concerns about Goodell’s extensive

criminal history and the violence of the offense conduct. Judge Cook recognized that

the offense conduct involved three different episodes, each with a separate criminal

animus. He concluded that consecutive sentencing was necessary to reflect the

seriousness of the offenses, to protect the public, and to punish Goodell. 

Judge Cook’s reasoning is in all respects plausible, reasonable and supported by

the record. This is sufficient. See McCullough, 475 U.S. at 140 (reading Pearce as
No. 09-4338 Goodell v. Williams Page 15

requiring no more than “an on-the-record, wholly logical, nonvindictive reason for the

sentence”). In response, Goodell, has not identified evidence impugning the integrity

of Judge Cook’s given reasons. Nor has he identified evidence of actual vindictiveness.

To be sure, Goodell was understandably disappointed to learn, after successfully

challenging his original sentence, that his sentence would ultimately be increased. Yet,

as the McCullough Court observed, “[n]othing in the Constitution requires a judge to

ignore ‘objective information . . . justifying the increased sentence.’” Id. at 142 (quoting

Goodwin, 457 U.S. at 374).

III

For all the foregoing reasons, the order of the district court conditionally granting

habeas relief is REVERSED. The matter is REMANDED to the district court for entry

of an order denying Goodell’s habeas petition on the merits.