Joseph Featherkile v. Wanza Jackson

451 F. App'x 566

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 27, 2011
• Docket: 10-3331
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Petitioner-Appellant Joseph Featherkile was convicted by a Hamilton County, Ohio, jury on November 22, 1999, on four counts of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4). The trial court sentenced Featherkile to two years’ imprisonment for the first count and five years for each of the three remaining counts, all to be served consecutively, for a total of seventeen years. Featherkile was resentenced in 2006 under the new, discretionary sentencing regime ushered in by the Ohio Supreme Court’s application of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to the Ohio’s sentencing structure. See State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). At his 2006 resentencing, the court imposed the same term of imprisonment-seventeen years. After exhausting his remedies before the Ohio appellate courts, Featherkile filed a petition for a writ of habeas corpus, arguing that his resentencing based on the new discretionary sentencing procedure violates the ex post facto and due process clauses of the Fourteenth Amendment to the United States Constitution. In particular, Feath-erkile argues that his new sentence imposes a new and retroactive punishment because it is greater than the “presumptive minimum” sentence applicable prior to Foster. The district court denied the petition.

Featherkile’s claim is the same as that advanced by the petitioner in our recent case of Ruhlman v. Brunsman, 664 F.3d 615 (6th Cir.2011). As we explained in Ruhlman, resentencings pursuant to Ohio’s discretionary sentencing scheme established by Foster, even when it results in a sentence greater than the pre-Foster presumptive minimum sentence, do not violate ex post facto or other due process clause principles. Ruhlman, 664 F.3d at 619-24. Thus, for the reasons stated in Ruhlman v. Brunsman, we AFFIRM the denial of the petition by the district court for a writ of habeas corpus.