Bunch v. Smith

685 F.3d 546

Chaz BUNCH, Petitioner–Appellant,

v.Keith SMITH, Respondent–Appellee.

No. 10–3426.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2012.

Decided and Filed: July 6, 2012.

ARGUED:Stephen P. Hardwick, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Lauren Suzanne Kuley, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Stephen P. Hardwick, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Jerri L. Fosnaught, Alexandra T. Schimmer, Matthew A. Kanai, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Chaz Bunch was convicted in Ohio state court of robbing, kidnaping, and repeatedly raping a young woman when he was 16 years old. The state trial court sentenced Bunch to consecutive, fixed terms totaling 89 years' imprisonment. Bunch appealed, arguing, among other things, that the trial court violated the Eighth Amendment's prohibition on cruel and unusual punishments by sentencing him to the functional equivalent of life without parole for crimes he committed as a juvenile. The Ohio Court of Appeals, however, rejected this argument and the Ohio Supreme Court denied Bunch discretionary review. Bunch then filed a habeas petition, reasserting his Eighth Amendment claim, but the district court denied Bunch relief. Bunch now appeals, arguing that his lengthy prison sentence is tantamount to a life sentence and therefore runs afoul of the intervening Supreme Court decision in Graham v. Florida, which held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” ––– U.S. ––––, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010).

Bunch is not entitled to habeas relief. Even if we assume that Graham applies to Bunch's case on collateral review, that case does not clearly establish that consecutive, fixed-term sentences for juveniles who have committed multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole.

This case arises from the horrific robbery, kidnaping, and repeated rape of M.K., a 22–year–old female Youngstown State University student. On an evening in 2001, M.K. arrived at her workplace. As M.K. exited her vehicle, she noticed a black car drive up the street and park a few houses away. M.K. then saw a man wearing a mask running toward her. The man, later identified as Brandon Moore, pointed a gun at M.K., ordered her to hand over her money and belongings, and told her to get into the passenger seat of her car. Once M.K. was seated, Moore got into the driver's seat and drove away, following the black car.

At some point, the two cars stopped. A second gunman, Bunch, exited the black car and entered M.K.'s car through the rear passenger's side door. Bunch and Moore both pointed their guns at M.K. The cars then traveled to a gravel lot and Bunch ordered M.K. out of the car. While holding M.K. at gunpoint, Bunch and Moore took turns orally raping her. Bunch and Moore then forced M.K. to the trunk and they anally raped her. While this was occurring, Jamar Callier emerged from the black car and stole some of M.K.'s belongings from the trunk. Bunch then threw M.K. to the ground and, while they were still armed, Bunch and Moore vaginally and orally raped her.

Callier eventually stopped the attack and put M.K. back in her car. M.K. quickly locked her doors and drove away. Police later tracked down the perpetrators based on the black car's license plate number, which M.K. managed to memorize during the ordeal.

Bunch, who was 16 years old at the time of the attack, was indicted on multiple offenses. Bunch went to trial and a jury found him guilty of three counts of rape, three counts of complicity to commit rape, one count of aggravated robbery, one count of conspiracy to commit aggravated robbery, one count of kidnaping, one count of misdemeanor menacing, and all related firearm specifications.

The trial court sentenced Bunch to the maximum term of imprisonment on all of the charges and ordered that he serve each of the felony sentences consecutively. Bunch appealed and, while most of his convictions were affirmed, his conspiracy conviction was vacated and his case was remanded for resentencing.

On remand, the trial court sentenced Bunch to the maximum term of imprisonment on each of the remaining counts—10 years for each of the three counts of rape, 10 years for each of the three counts of complicity to commit rape, 10 years for aggravated robbery, 10 years for kidnaping, and 180 days for misdemeanor menacing. The trial court also sentenced Bunch to nine years for the firearm specifications. The trial court ordered Bunch to serve his sentences for the felony convictions and firearm specifications consecutively, for a total of 89 years' imprisonment. The trial court explained its sentence, saying to Bunch, “I just have to make sure that you don't get out of the penitentiary. I've got to do everything I can to keep you there, because it would be a mistake to have you back in society.”

Bunch appealed, arguing, among other things, that the trial court violated the Eighth Amendment's prohibition on cruel and unusual punishments by sentencing him to 89 years' imprisonment, the functional equivalent of life without parole, for crimes he committed as a juvenile. State v. Bunch, No. 06 MA 106, 2007 WL 4696832, at *5–*6 (Ohio Ct.App. Dec. 21, 2007). The Ohio Court of Appeals, however, explicitly rejected this argument and affirmed the judgment of the trial court. Id. at *7. The Ohio Supreme Court denied Bunch's petition for discretionary review. State v. Bunch, 118 Ohio St.3d 1410, 886 N.E.2d 872 (2008).

Bunch then filed a 28 U.S.C. § 2254 habeas petition in federal district court, arguing, once again, that his 89–year sentence violated the Eighth Amendment. The magistrate judge recommended that the district court withhold judgment on Bunch's Eighth Amendment claim until the Supreme Court decided Graham v. Florida, regarding the constitutionality of life without parole sentences for juveniles convicted of nonhomicide offenses. Bunch v. Smith, No. 1:09CV0901, 2009 WL 5947369, at *20 (N.D.Ohio Dec. 8, 2009). The magistrate judge reasoned that there was “at least a possibility that a broadly-worded decision in Graham could affect Bunch.” Id.

The district court, however, did not accept the magistrate judge's recommendation, finding Graham “factually distinguishable from the instant case.” Bunch v. Smith, No. 1:09CV901, 2010 WL 750116, at *2 (N.D.Ohio Mar. 2, 2010). The district court reasoned:

The trial court in Graham imposed two life sentences without parole on the juvenile offender. The court in this case imposed ten year sentences on each of eight distinct felonies, to be served consecutively, along with nine years for firearm specifications, also to be served consecutively-for an aggregate prison sentence of 89 years. And, despite the Magistrate Judge's prompting, there is still no indication that Bunch will not be eligible for parole prior to completion of that sentence. Thus, any ruling the Supreme Court issues in Graham will not apply to this case. Even if the Supreme Court concludes that it violates the Constitution to impose a life sentence without parole on a juvenile offender, the undersigned would have to create new law by extending that ruling to this case, something it is not inclined to do.

Id. The district court ultimately denied Bunch's § 2254 petition and denied him a certificate of appealability. Id.

Bunch then filed a timely notice of appeal and a motion for a certificate of appealability with this court. Shortly thereafter, the Supreme Court decided Graham, holding that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034. This court then granted Bunch a certificate of appealability as to his Eighth Amendment claim.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to Bunch's case because his Eighth Amendment claim was adjudicated on the merits in state court. See28 U.S.C. § 2254(d). Indeed, Bunch argued on direct appeal that his 89–year sentence was the functional equivalent of life without parole and, therefore, violated the Eighth Amendment's prohibition on cruel and unusual punishments. The Ohio Court of Appeals, however, explicitly rejected this argument, and the Ohio Supreme Court denied Bunch's petition for discretionary review. While the state appellate courts issued their decisions before the United States Supreme Court decided Graham, Bunch's Eighth Amendment claim was nevertheless adjudicated on the merits in state court. Thus, as both parties agree, AEDPA applies to Bunch's case.

The question before this court then is whether the state court's adjudication of Bunch's Eighth Amendment claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The Supreme Court has recently clarified that “clearly established Federal Law” means the law that existed at the time of “the last state-court adjudication on the merits.” Greene v. Fisher, –––U.S. ––––, 132 S.Ct. 38, 45, 181 L.Ed.2d 336 (2011). Here, even if we consider “the last state-court adjudication on the merits” to be the Ohio Supreme Court's decision denying Bunch's petition for discretionary review, that decision was still issued before the United States Supreme Court decided Graham. In other words, Graham was not on the books until after Bunch exhausted all of his state appeals. An argument could be made, however, that Graham nonetheless applies because it sets forth a new rule prohibiting a certain category of punishment for a class of defendants and therefore can be raised on collateral review notwithstanding the...