RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0184p.06 

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

_________________

C HARLES G OODELL , Petitioner-Appellee,

v. J ESSE W ILLIAMS , Warden, Respondent-Appellant. X - - - -> , - - - N 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, OFFICEOF 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, Colum bus, 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 hab eas 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, resulti ng in a sentence longer than the original sentence he had successfully challenged, gave rise to a presumption of vindictiveness.

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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 f ound guilty in the Lucas County Court of Common Pleas of one count of rape, tw o 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 proof s 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’ apartmen t 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 hos pital, the defendants returned to continue their assault. When the father escapedthrough 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 be nefit 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 concu rrently 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 theNo. 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. C ook. Judge Cook understood that he was to conduct a plenary resentencing. He ordered th e 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 imposeda 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 thatthe two four-year sentences for the first burglary and assault would run concurrently with each other, as would the two five-yearsentences 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 app ealed his original sentence, smacked of vindictiveness, Judge Cook took pains to expl ain his rationale. First, Judge Cook made note of Goodell’s extensive criminal hist ory, 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 harboredany 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 distin ct sets of crimes here—the first burglaryNo. 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 si ngle 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 a ddress only the question of whether and how the sentences would run concurrently and/orconsecutively. 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 di rection 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 burgl ary and assault, and both four-year terms would run consecutively to the five-year sent ence 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 noNo. 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 ruli ng. 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 No rthern District of Ohio on October 10, 2008. The matter was referred to a magistrate j udge, 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 ci rcumstances 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 anNo. 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 arrive d 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 thatprinciple 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 de ferential 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 establishe d 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 particularrule 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 clearlyNo. 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 decisi on is the September 29, 2007 Ohio Court of Appeals ruling that Goodell had not made th e 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. Rec ognizing 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 in formation, 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 pr esumption 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 j udge 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 twoNo. 09-4338 Goodell v. Williams Page 8

reasons. First, the Court observed that th e trial judge herself had granted McCullough’s motion for new trial. Unlik e 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 base d 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 Goode ll had failed to identify evidence of actual vindictiveness. Id. at *3-4. The court thus affirmedthe 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 d eemed 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 judici al vindictiveness in sentencing violatesNo. 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 na rrow, 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 senten cing 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 eff ectuating 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. Accordi ngly, 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) (emphasi s 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 juryimposed 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 thePearce presumption does not apply in every case where a convicted defendant receives a higher sentence on retrial, but only where the circumstances of th e particular case give rise to a need to guard against vindictiveness. The presumption is in appropriate 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 McCulloughCourt held that the circumstances do not give rise to a need to apply the presumption where, as here, theNo. 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 McCulloughCourt “had no occasion to d ecide whether the presumption applies when the second sentencer is a diffe rent 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 ther efore 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 McCulloughCourt 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; namel y, 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 increas ed 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 br oad 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 circumstancesNo. 09-4338 Goodell v. Williams Page 12

demonstrating a need to guard agai nst vindictiveness. In fact, the McCulloughmajority opinion concludes: “It is appropriate th at 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 successf ully 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 vindi ctiveness. 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” th at the sentence increase was the product of judicial vindictiveness. That this clarified principle derived from McCulloughhas 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 McCulloughand holding presumption not warranted where different judge impos ed 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 th ere has been no real “increase” in the sentence.No. 09-4338 Goodell v. Williams Page 13

2 Nor does Supreme Court precedent clearly estab lish that the presumption applies to protect against “institutional vindictiveness,” as opposed to ju st “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 McCulloughCourt declined to accept such a skeptical view of judicial temperament genera lly 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 di fferent from the judge who had imposed the original nine-year sentence. This factclearly undermines the applicability of the presumption. Apart from the fact that G oodell’s ultimate senten ce is longer than his original sentence, there are no other circumstances suggesting a need for the presumption to protect against vindictivene ss. Quite to the contrary, Judge Cook’s careful explanation of the reasons for the l onger 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. 3No. 09-4338 Goodell v. Williams Page 14

2. Actual Vindictiveness Moreover, we find the district court erre d 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 recordevidence 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 pr obably 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 thi nking. After thoroughly reviewing the trial transcript and the newly prepared presen tence 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. Judg e 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 asNo. 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 di sappointed to learn, after successfully challenging his original sentence, that his sentence would ultimately be increased. Yet, as the McCulloughCourt 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.