Charles Goodell v. JESSE WILLIAMS , Warden

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.
J ESSE WILLIAMS , Warden,
Respondent-Appellant.
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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, 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

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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 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

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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 four-
year 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

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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 four-
year 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

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1Since 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

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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 state-
court 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

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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

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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

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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

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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 two-
sentencer issue. We therefore decline to read Pearce as governing this
issue. See also n. 4, infra.

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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

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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.

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2Nor 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.
3Even 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

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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

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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.

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