Featherkile v. Jackson, No. 10-3331 (6th Cir. Dec. 27, 2011) (unpublished). Panel of Judges Cole, McKeague, and Griffin. Per Curiam.
Petitioner convicted of gross sexual imposition, in Ohio state court, in 1999. 17-year sentence. Resentenced in '06 under a new, discretionary sentencing regime after the Ohio Supreme Court applied Booker. Case applying Booker was State v. Foster, 845 N.E.2d 470 (Ohio 2006).
Petitioner received the same 17-year sentence at resentencing. He exhausted his state-court remedies, and then petitioned for a writ of habeas corpus in federal court. He argued that the resentencing based on the new, discretionary sentencing regime violated ex-post-facto and due-process principles. Specifically, he argued that the new sentence imposed a new and retroactive punishment because it was greater than the presumptive minimum sentence applicable pre-Booker and Foster.
The appellate court considered the same claim last week in Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). In that case, the court concluded that resentencings under the discretionary sentencing scheme in Ohio post-Booker and Foster that result in sentences higher than the pre-Foster presumptive minimum sentence do not violate ex-post-facto or due-process principles.
Denial of petition affirmed.
Have a good New Year's celebration!!!!
