Opinion
Case No. C-1-01-157
June 6, 2003
REPORT AND RECOMMENDATION
Petitioner, a prisoner in state custody at the Warren Correctional Institution in Chillicothe, Ohio, who is represented by counsel, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is now before the Court on the petition and respondent's return of writ. ( See Docs. 1, 3).
Factual And Procedural Background
In 1997, petitioner was indicted by the Hamilton County, Ohio, grand jury on ten counts of rape of a minor under the age of thirteen as defined in Ohio Rev. Code § 2907.02(A)(1)(b); a sexually violent predator specification was attached to each count. (Doc. 3, Ex. A). Later, in 1998, another indictment was issued by the Hamilton County grand jury charging petitioner with the additional offense of pandering obscenity involving a minor in violation of Ohio Rev. Code § 2907.321(A)(5). ( Id., Ex, B). Petitioner entered guilty pleas to all the charges. ( See id., Exs. C, U, V (Tr. 15-24)). At a hearing held January 29, 1998, the court found petitioner to be a sexual predator pursuant to Ohio Rev. Code § 2950.09(B) and sentenced him to a term of imprisonment totaling fifty-one (51) years. ( Id., Exs. D, E, V (Tr. 47, 53)).
Before pronouncing sentence at the January 29, 1998 hearing, the trial judge engaged in a monologue about the process she went through in determining the appropriate sentence for petitioner. The Ohio Supreme Court has made findings of fact, which are presumed correct under 28 U.S.C. § 2254(e)(1), regarding this monologue, which proceeded as follows:
228 U.S.C. § 2254(e)(1) provides that "[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct" unless petitioner rebuts the presumption by "clear and convincing evidence." Petitioner has neither argued nor presented evidence to rebut the Ohio Supreme Court's factual findings quoted herein. In any event, upon review of the sentencing transcript, the Court concludes the state court's factual findings are reasonably supported by the record, and petitioner has not demonstrated by clear and convincing evidence that such findings are erroneous. ( See Doc. 3, Ex. V).
"So, Mr. Arnett, I was struck by the idea of who is James Arnett through this particular case. And I thought about it all last evening as I was trying to determine in my mind what type of sentence you deserved in this particular case,"
At this point, the judge commented on the photographs and letters that several interested parties had submitted to the court on Arnett's behalf. The judge referred to the submissions from the victim's father and mother, statements from the victim herself, and testimony provided by the defendant's psychologist at the sentencing hearing. As she discussed these submissions, the judge made several references to the victim's young age, She mentioned the concern that the victim's father had for his "little girl," and noted that "[a] child should not know" the sexually graphic details that Arnett introduced her to. The judge told Arnett that he had "robbed that child of that whole sense of growing up." The judge concluded the proceedings with the following comments:
"Recently, Mr. Arnett, I had a murder case of an individual who had no remorse and the sentence was 20 years, and I thought about that in regards to sentencing you. Because I was looking for a source, what do I turn to, to make, to make that determination, what sentence you should get. And I thought in regards to a 20-year sentence, that individual, that victim, who's the victim of that case, at least is gone to their reward, they're not hurting anymore. But for [the victim in this case], the rest of her life, unless she takes care of herself, she's hurting.
"* * * And in looking at the final part of my struggle with you, I finally answered my question late at night when I turned to one additional source to help me. And basically, looking at [the victim] on one hand, looking at the photographs of you happily as a child, and looking at the photographs of downloading that came from your computer, I agree they're very sad photographs, they're pure filth, it just tells me how ill you are.
"And that passage where I had the opportunity to look is Matthew 18:5, 6. `And whoso shall receive one such little child in my name, [sic] receiveth me. But, [sic] whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that [sic] he were drowned in the depth of the sea.'
"Pandering obscenity count, one year. Ten counts of rape, five years on each, running consecutive. Sentence, 51 years.
"Mr. Arnett, I hope God has mercy on you and the hell that you have created. Thank you."
The proceedings concluded immediately following these comments.State v. Arnett, 724 N.E.2d 793, 795-96 (Ohio 2000) (footnote omitted) ( see also Doc. 3, Ex. S).
The Ohio Supreme Court noted in making its findings that the Biblical passage quoted by the trial judge "as it appears in the transcript from the sentencing proceeding contains slight differences from the Bible, King James version. The notation ` sic' marks two commas not in the original and the omission of italics from the word `that.'" Arnett, 724 N.E.2d at 796 n. 1.
With the assistance of counsel, petitioner filed an appeal to the Ohio Court of Appeals, First Appellate District, challenging the trial court's sentencing decision. Petitioner asserted three assignments of error. Specifically, he alleged in the first assignment of error that "the court erred when it impermissibly considered as a factor in sentencing its own religious beliefs" in violation of state statutory law and the United States and Ohio Constitutions. ( Id., Ex. F, pp. i, 7-10). In the second assignment of error, he claimed that the court erred when it failed to follow state statutory requirements for imposing consecutive sentences. ( Id., pp. ii, 12-13). Finally, in the third assignment of error, petitioner argued that the court erred in accepting his guilty pleas without first informing him that the maximum penalty included the possibility of consecutive sentences. ( Id., pp. ii, 14).
On February 5, 1999, the Ohio Court of Appeals issued an Opinion vacating petitioner's sentence and remanding the case for resentencing. ( Id., Ex. H). All three judges on the appellate panel were in agreement that the third assignment of error lacked merit, but the majority of the panel upheld the first two assignments of error based on their conclusion that the trial judge had "act[ed] outside of Ohio's sentencing guidelines, as well as violated] the offender's due-process rights" when she relied on her own religious beliefs as "the determining factor" in making her decision about the appropriate punishment to be imposed. ( Id., pp. 3-5) (emphasis in original). Although agreeing with the majority that "a trial judge's sense of religiosity should not be a determining factor in sentencing," one judge on the panel filed a dissent because in his opinion the trial judge "based her decision on the proper statutory considerations" and the language from the Bible quoted by her in pronouncing petitioner's sentence "merely reflects society's interests in protecting its most vulnerable citizens [children], a laudable goal that is incorporated in the sentencing guidelines enacted by the General Assembly." ( Id., pp. 6-7).
The State sought leave to appeal the Ohio Court of Appeals' majority decision to the Ohio Supreme Court, asserting the following propositions of law, which are quoted verbatim, in its memorandum in support of jurisdiction:
I. The trial court does not err in sentencing Defendant when the period of incarceration is within the statutory limits and the trial court bases its decision on statutory criteria.
II. When a judge's expression of her moral or religious values is consistent with the substantive and overriding purposes of the statutory scheme, due process is not offended.
III. Assuming arguendo that the trial court did rely on her religious beliefs to aid in her decision making process, this Court must recognize that judicial power is not exercised or held in a moral vacuum; judges necessarily factor in their personal morals and values in making judicial decisions.
( Id., Ex. J). The Christian Coalition of Ohio, as Amicus Curiae, also filed a memorandum in support of jurisdiction challenging the Ohio Court of Appeals' majority decision. ( Id., Ex. L). On June 2, 1999, the Ohio Supreme Court entered an order allowing the appeal. ( Id., Ex. N). Thereafter, a merit brief by the State and an "Amici Curiae" brief in support of the State were filed. ( Id., Exs. O, P). In response, petitioner's counsel and the American Civil Liberties Union of Ohio Foundation, Inc. (ACLU), as Amicus Curiae, filed briefs in opposition to the State's propositions of law. ( Id., Exs. Q, R). On March 15, 2000, the Ohio Supreme Court issued a published decision, State v. Arnett, 724 N.E.2d 793 (Ohio 2000) ( see also Doc. 3, Ex. S), reversing the Ohio Court of Appeals' majority opinion and reinstating petitioner's original sentence.
With the assistance of the same attorney who represented him in the state appellate proceedings, petitioner filed the instant petition for writ of habeas corpus on March 15, 2001. (Doc. 1). Petitioner alleges the following three grounds for relief, which are quoted verbatim from the petition:
Ground One: The sentencing court violated Petitioner's due process rights by relying upon its religious beliefs as a factor in reaching a sentence.
Ground Two: The sentencing court violated Petitioner's due process rights by considering a nonpermissible factor from her religion in violation of statutory guidelines for the State of Ohio.
Ground Three: By relying on a biblical passage in sentencing
Petitioner, the trial court violated the Establishment Clause of the First Amendment by endor[s]ing religion.
( Id., pp. 5-6).
Without waiving the statute of limitations defense, respondent concedes in the return of writ and it appears from the record that the petition is not subject to dismissal on statute of limitations grounds. (Doc. 3, Brief, p. 12). It further appears petitioner has exhausted all available state remedies with respect to his grounds for relief. Therefore, the Court will proceed to address petitioner's claims in light of the arguments asserted by respondent in the return of writ.
OPINION A. Petitioner Has Waived The First Amendment Establishment Clause Claim Alleged In Ground Three Of The Petition
In Ground Three of the petition, petitioner contends the trial judge violated the First Amendment's Establishment Clause by endorsing religion when she relied on a passage from the Bible in sentencing him. (Doc. 1, p. 6). Respondent argues in the return of writ that petitioner has waived this claim due to his procedural default in the state courts. (Doc. 3, Brief, pp. 16-17).
It is well-settled that, on federal habeas corpus review, a court may be barred from considering an issue of federal law from the judgment of a state court if the state judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the state court's decision. Harris v. Reed, 489 U.S. 255, 260-62 (1989). The "adequate and independent state ground" doctrine has been applied to state decisions refusing to address the merits of a claim because of violations of state procedural rules. Id. at 261; Wainwright v. Sykes, 433 U.S. 72, 86-87(1977); see also McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985). An adequate and independent finding of procedural default will preclude habeas corpus review of a federal claim unless petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error, or that failure to consider the claim will result in a "fundamental miscarriage of justice." See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris, 489 U.S. at 262; see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Sykes, 433 U.S. at 87. The procedural default will not bar consideration of the claim unless the last state court rendering judgment in the case "clearly and expressly" states that its judgment rests on the state procedural bar. Harris, 489 U.S. at 263.
In this case, the Ohio Supreme Court, as the last state court rendering judgment in the case, "clearly and expressly" refused to consider the merits of a First Amendment Establishment Clause claim because petitioner had committed a procedural default by failing to "develop" or "articulate" an Establishment Clause challenge to the judge's conduct in his briefs on appeal to the Ohio Court of Appeals and Ohio Supreme Court. See Arnett, 724 N.E.2d at 797. Although this reliance by the Ohio Supreme Court on petitioner's state procedural default satisfies the requirement that it must be "independent" of the merits of petitioner's federal claim, the question is close whether such reliance constitutes an "adequate" basis for the Ohio Supreme Court's decision.
A state procedural rule is adequate if it was "firmly established" and "regularly followed" by the time it was applied in this case. Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002) (citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991), and Johnson v. Mississippi, 486 U.S. 578, 587 (1988)). It has long been well-settled in Ohio that "[e]rrors not treated in the [appellate] brief will be regarded as having been abandoned by the party who gave them birth." Hawley v. Ritley, 519 N.E.2d 390, 392 (Ohio 1988) (quoting Uncapher v. Baltimore Ohio R.R. Co., 188 N.E. 553, 555 (Ohio 1933)) (and holding in that case that the Ohio Court of Appeals acted within its discretion in disregarding an assignment of error "given the lack of briefing on this assigned error"); see also Ohio R. App. P. 12(A)(2) (which provides that the "court may disregard an assignment of error presented for review if the party raising it fails to . . . argue the assignment separately in the brief); Buckeye Union Ins. Co. v. Zavarella Bros. Constr. Co., 699 N.E.2d 127, 131 n. 1 (Ohio Ct.App.) (considering an issue raised as an alternative ground for summary judgment waived on appeal because the moving party "did not separately set forth this issue as a separate argument in its merit brief), appeal dismissed, 686 N.E.2d 276 (Ohio 1997); State v. Wright, No. 01CA2781, 2002 WL 1666223, at *8 (Ohio Ct.App. Mar. 26, 2002) (unpublished) (holding that the defendant had waived a claim asserted in one sentence at the end of his argument on an assignment of error and in his reply brief due to his failure to present it as a separate assignment of error "coupled with his failure to brief the issue and cite relevant authority").
Here, petitioner mentioned the First Amendment in his briefs on appeal when he argued that, in violation of the "freedom of religion" provision, "consideration of religious beliefs or consideration of a religious dogma or the dictates of a particular religious teaching . . . is an impermissible factor to be used in the sentencing of a defendant." ( See Doc. 3, Ex. F, pp. 10, 15; Ex. M, p. 9; Ex. Q, pp. 7, 9). In making his arguments in support of this general statement, petitioner did not allege a violation of the First Amendment's Establishment Clause or employ the principles applicable to the disposition of Establishment Clause claims first enunciated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), and refined by subsequent Supreme Court case-law, see generally American Civil Liberties Union of Ohio Found., Inc. v. Ashbrook, 211 F. Supp.2d 873, 882-83 nn. 7-8 (N.D. Ohio 2002) (and cases cited therein); see also American Civil Liberties Union of Ohio v. Capitol Square Review Advisory Bd., 243 F.3d 289, 305-306 (6th Cir. 2001) (en bane). Instead, he contended in reliance on a decision by the Fourth Circuit in United States v. Bakker, 925 F.2d 728, 740-41 (4th Cir. 1991), that his sentence should be overturned on the ground that the sentencing court exceeded "the boundaries of due process" by "impermissibly tak[ing] h[er] own religious characteristics into account in sentencing." ( See Doc. 3, Ex. F, pp. 11-12; Ex. M, pp. 10-11; Ex. Q, pp. 8-9). Petitioner did cite another Fourth Circuit decision, North Carolina Civil Liberties Union Legal Found v. Constangy, 947 F.2d 1145 (4th Cir. 1991), cert. denied, 505 U.S. 1219 (1992), which addressed an Establishment Clause challenge to the use of judicial prayer in court proceedings. Petitioner cited the case, however, only to the extent it "followed" Bakker. (See Doc. 3, Ex. F, p. 12; Ex M, p. 11; Ex. Q, p. 9). Indeed, in Constangy, the Fourth Circuit recognized that although Bakker was "instructive as it reflects the dangers of allowing a judge's religious views to enter the courtroom," the case did not similarly involve an Establishment Clause claim to be analyzed under the Lemon test, but rather the "issue of actual prejudice to a party due to a judge's religious views." Constangy, 947 F.2d at 1152.
The Court is troubled by the fact that implicitly underlying the due process issue addressed in Bakker and argued by petitioner to the state appellate courts is the concern that a judge's express use of religious principles and values in sentencing fosters or results in governmental endorsement of, or excessive entanglement with, religion in violation of the Establishment Clause. Cf. Constangy, 947 F.2d at 1151-52 (state judge's "daily deliverance in court of a prayer that he himself composed . . . results in an ongoing, day-to-day merging of judicial and religious functions," and "puts the court's approval on a particular kind of belief' that "has the potential for entangling the state in divisiveness along religious lines"); Ashbrook, 211 F. Supp.2d at 888-89, 890-93 (concluding that state judge's display of the Ten Commandments in his courtroom constituted a violation of the Establishment Clause because (1) the judge's purpose of addressing what he perceived to be a moral crisis in this country, while "laudable," was "at heart, religious in nature" as "officially sanctioning a view of moral absolutism in his courtroom by particular refer[ence] to the Ten Commandments" and (2) a "reasonable observer" of the courtroom display of the Ten Commandments, which is known to be a "sacred text in the Christian and Jewish faiths," would think that the state judge and the State of Ohio were endorsing a religion) (emphasis in original); see also Collmer v. Edmondson, 16 Fed. Appx. 876, 877-78 (10th Cir. Aug. 1, 2001) (not reported in Federal Reporter) (although the court found that petitioner had not demonstrated a state trial judge's prayer in open court before prospective jurors substantially impaired the fairness of his trial for purposes of establishing a colorable claim for habeas corpus relief, the court noted that it was "troubled" by the prayer and that "there might well be merit to [petitioner's] case . . . if he had filed a [civil rights] complaint" seeking injunctive relief "in light of the well-known constitutional dictate that the establishment of religion by government is not permitted"). Although the Establishment Clause concern was not explicitly addressed by the Fourth Circuit in Bakker, it appears from the following excerpt such concern was implicit in the court's finding of a due process violation in that case:
Our Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office. Courts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it. . . . Regrettably, we are left with the apprehension that the imposition of a lengthy prison term here may have reflected the fact that the court's own sense of religious propriety had somehow been betrayed.Bakker, 925 F.2d at 740-41.
This Court has grave doubts about the propriety under the Establishment Clause of the state judge's express reference in open court to New Testament scripture as the last source she consulted in deciding the appropriate sentence for petitioner. In light of the judge's comments, which suggest she relied on the Bible reference for "weighing" purposes and thus as a factor in the sentencing determination, the Court is further troubled that petitioner may well be able to show he was prejudiced by the alleged Establishment Clause violation for purposes of demonstrating entitlement to habeas corpus relief. Contrast Isaacs v. Head, 300 F.3d 1232, 1252-53 (11th Cir. 2002) (in the absence of any case-law indicating that a state "conviction violates the constitution and must be set aside merely because the trial was begun with a prayer with respect to which no prejudice has been proven/' and in the absence of any evidence in the record to rebut the state habeas court's factual finding that the content of the prayer was "neutral" or otherwise showing petitioner was prejudiced by the prayer, the court concluded on federal habeas review that the state habeas court's determination that the prayer did not violate petitioner's constitutional rights was neither contrary to nor involved an unreasonable application of existing Supreme Court precedent), cert. denied, 123 S.Ct. 1805 (2003); United States v. Walker, 696 F.2d 277, 281-82 (4th Cir. 1982) (without reaching the question whether or not a courtroom prayer violated the First Amendment, the court held reversal of criminal convictions was not warranted in the absence of evidence showing the prayer was prejudicial to the defendants), cert. denied, 464 U.S. 891 (1983); Collmer, 16 Fed. Appx. at 877-78 (although the court expressed concern about probably meritorious claim of Establishment Clause violation, it concluded petitioner had not shown prejudice as a result of the challenged courtroom prayer before prospective jurors for purposes of establishing entitlement to habeas relief).
Nevertheless, despite the fact that serious Establishment Clause concerns are triggered here, which are implicitly intertwined with the due process issue that was presented to and addressed by the state courts, this Court concludes that petitioner did not sufficiently articulate or develop the Establishment Clause argument with citation to the relevant legal standards governing the disposition of Establishment Clause claims to the state courts. Petitioner failed to present an Establishment Clause claim as a separate assignment of error to the Ohio Court of Appeals or as a specific argument on the State's further appeal to the Ohio Supreme Court. Moreover, petitioner failed to brief the Establishment Clause issue with citation to the relevant authority set forth in Lemon and its progeny to the state appellate courts. Accordingly, the Ohio Supreme Court's decision to disregard such an argument and limit its discussion to the issues briefed and preserved by the parties was made in accordance with "firmly established" and "regularly followed" Ohio practice, see supra p. 7, and is therefore "adequate."
It is noted that the ACLU specifically argued in its Amicus Curiae Brief to the Ohio Supreme Court that the state trial judge's reliance on a Biblical passage in making her sentencing determination violated the First Amendment's Establishment Clause by endorsing religion. ( See Doc. 3, Ex. R, pp. 3-4, 8). However, although Supreme Court Establishment Clause cases were cited in support of this general contention, the ACLU did not set forth or otherwise discuss the relevant standard first enunciated in Lemon for analyzing and determining the merits of an Establishment Clause claim. ( See id.). Instead, the ACLU relied exclusively on Bakker and other state cases that addressed the issue in terms of due process. ( See id., pp. 3-8). In any event, even assuming the ACLU had sufficiently presented the Establishment Clause issue to the Ohio Supreme Court, petitioner as the primary party involved in the case did not. Moreover, no such presentation was made to the Ohio Court of Appeals on direct appeal, and the Ohio Supreme Court lacks jurisdiction to consider constitutional claims not raised first to the Ohio Court of Appeals. See, e.g., State v. Williams, 364 N.E.2d 1364, 1367 (Ohio 1977) (and cases cited therein), vacated on other grounds, 438 U.S. 911 (1978); State v. Phillips, 272 N.E.2d 347, 352 (Ohio 1971); State v. Jones, 211 N.E.2d 198, 199 (Ohio 1965), cert. denied, 383 U.S. 918, 951 (1966); see also Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.), cert. denied, 474 U.S. 831 (1985); Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).
Because the Ohio Supreme Court's judgment rested on a state-law procedural ground that is both independent of the merits of the federal Establishment Clause claim and an adequate basis for the court's decision, this Court is barred from considering the merits of the federal claim absent the requisite showing of cause and prejudice or of a "fundamental miscarriage of justice." See supra p. 6; see also Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262. Although for purposes of establishing "prejudice," it appears petitioner could prevail on an Establishment Clause claim challenging the trial judge's sentencing decision, petitioner has not presented any justification or explanation as "cause" for his procedural default in the state courts. Both cause and prejudice must be shown before federal habeas review may be obtained. See id. Petitioner also has not shown that a "fundamental miscarriage of justice" will occur if the Establishment Clause claim is not addressed. A "fundamental miscarriage of justice" occurs only in the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 495-96; see also Schlup v. Delo, 513 U.S. 298, 327 (1995). Here, petitioner does not challenge his convictions for rape and pandering obscenity; nor does he claim he is innocent of those crimes. Moreover, to the extent the "actual innocence" exception is applicable to a challenge to one's sentence, petitioner has not shown that the 51-year sentence he received, which fell well within the maximum sentence that could be imposed ( see supra Doc. 3, Brief, p. 17; Ex. U (Tr. 3), Ex. V (Tr. 17)) and was based at least in part on proper consideration of state statutory criteria, amounts to a "fundamental miscarriage of justice" in this case.
Accordingly, in sum, although the state judge's express reference in open court to New Testament scripture as a source she consulted in determining the appropriate sentence in this case triggers serious concerns under the First Amendment's Establishment Clause, this Court concludes that petitioner has waived the Establishment Clause claim alleged in Ground Three of the petition due to his failure to separately argue and brief such a claim to the state appellate courts with citation to the relevant case-law governing the resolution of such claims.
B. Petitioner Is Entitled To Habeas Relief Based On His Due Process Claims Alleged In Grounds One And Two Challenging The Trial Judge's Reliance On Her Religious Beliefs As A Determinative "Weighing" Factor In SentencingIn Grounds One and Two of the petition, petitioner alleges he was denied due process when the trial judge, in violation of Ohio statutory guidelines, improperly relied on her religious beliefs as a factor in determining the appropriate sentence for petitioner. (Doc. 1, p. 5). This claim was presented to and addressed by the Ohio courts and, therefore, is not waived.
The first state court to consider petitioner's claims was the Ohio Court of Appeals. The majority of the judges on the appellate panel decided primarily in reliance on the Fourth Circuit's decision in United States v. Bakker, 925 F.2d 728 (4th Cir. 1991), that the trial judge had violated state statutory standards and petitioner's due process rights by factoring her own religious beliefs into the sentencing decision. The majority reasoned in relevant part as follows:
Prior to Senate Bill 2, trial courts had virtually unlimited discretion when sentencing an offender. But now a court's discretion is limited by the various statutory factors it must consider. We are constrained to follow the law as enacted by the legislature, even if we disagree with it. Under the Revised Code, the religious beliefs of the trial judge are not a statutory factor that may be considered.
Also, when a judge's personal religious views enter into a sentencing procedure, the constitutional rights of the offender may be violated. This happened in [Bakker]. . . . James Bakker, the high-profile preacher, was sentenced for mail fraud, wire fraud, and conspiracy arising from his activities as a television evangelist. At sentencing, the trial judge stated, "[Bakker] had no thought whatever about his victims[,] and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests." The Fourth Circuit concluded that Bakker's due-process rights had been violated because the judge had impermissibly taken his own religious views into account in sentencing. . . .
We agree with the Fourth Circuit. Although not all religious comments during sentencing are impermissible, we agree that a court can not use religion as a factor in imposing a sentence. By factoring in religion, the court is acting outside of Ohio's sentencing guidelines, as well as violating the offender's due process rights. . . .
Here, a review of the sentencing hearing reveals that the court impermissibly factored religion into Arnett's sentence. After first considering factors favoring leniency, and then considering factors favoring a harsher sentence, the court explicitly stated that it turned to an "additional source" — the Bible — to resolve its "struggle" in determining an appropriate sentence. It was as if the court used the Bible as a "tiebreaker" in its struggle of determining if Arnett's sentence should be harsh or lenient.
Apparently, the passage quoted by the court, with its reference to drowning an offender by hanging a millstone around his neck, convinced the court to impose what it considered to be a harsh sentence — one that was significantly longer than the twenty — year murder sentence that the court discussed at the sentencing hearing. Considering the heavy influence that religion had in guiding the court's decision, we sustain Arnett's first and second assignments of error.
We understand that our decision may be misconstrued or interpreted as somehow hostile to religion. Not so. We stress that this case is unusual in that a specific text in the Christian Bible was the determining factor in the judge's imposition of punishment.
(Doc. 3, Ex. H, pp. 3-5) (emphasis in original) (footnotes omitted).
The Ohio Supreme Court disagreed with and reversed the Ohio Court of Appeals' majority decision. The state supreme court first determined that the "trial judge's particular reference to the Bible did not offend the sentencing provisions of the Revised Code." Arnett, 724 N.E.2d at 797. The court reasoned that the trial judge's "reference to the Book of Matthew acknowledged her consideration, during her deliberations, of the societal interest in protecting children," which was specifically recognized in Ohio Rev. Code § 2929.12(B)(1)'s sentencing provision requiring a judge, "when applicable, to consider [as a permissible factor] how the victim's age relates to the seriousness of the offense." Id. at 798-99. The court concluded that the judge's reference to the Bible constituted a permissible use of her discretion in determining the weight to assign a particular statutory factor — the age of the victim. Id. at 799-800. In so holding, the court stated:
The judge did not add an impermissible factor to her analysis; rather she acknowledged an influence upon her consideration of an explicitly permitted factor. Much like the judge's background, education, and moral values, the judge's insight from the Bible guided the judge in weighing the statutorily permissible age factor during her deliberations and aided her in justifying, in her mind, the lawful sentence she imposed.Id. at 800 (emphasis in original).
The state supreme court next determined that the trial judge's acknowledged reference to the Bible did not violate petitioner's due process right to a fundamentally fair sentencing hearing. Id. at 797. The court agreed with the Court of Appeals to the extent that "consideration of religious beliefs or religious texts by a sentencing judge may violate an offender's due process rights when such considerations constitute the basis for the sentencing decision and thereby undermine the fundamental fairness of the proceeding." Id. at 801. The court cited Supreme Court precedents recognizing that "even a sentence within the limits of a state's sentencing laws may violate due process if the sentencing proceedings are fundamentally unfair." Id. The court also cited federal circuit court decisions recognizing that "reviewing courts may vacate sentences as violative of due process when the sentencing judge's comments reveal that the court imposed or enhanced the offender's sentence because of improper considerations such as the offender's race or national origin, . . . false or unreliable information, . . . or parochialism." Id.
However, the court went on to find that the Fourth Circuit's Bakker decision specifically addressing the propriety of a sentencing judge's religious comments did not create a per se rule prohibiting all religious references by a sentencing judge, but rather represented "the exceptional case where a judge's religious comments implicate the fundamental fairness of a sentencing proceeding by revealing that the judge's personal religious views were the primary basis for the sentencing decision." Id. at 803. The court distinguished Bakker from the instant case because the "sentencing judge's comments in Bakker revealed that he had been personally offended, as a religious person, by the offender's frauds, "whereas in this case the "sentencing judge cited a religious text merely to acknowledge one of several reasons — `one additional source' — for assigning significant weight to a legitimate statutory sentencing factor." Id. The court continued in its analysis by rejecting petitioner's argument that the sentencing judge relied on her own religious beliefs "as the most essential factor in determining the length of the sentence to be served." Id. In so concluding, the court reasoned in relevant part:
. . . . If the sentencing judge had so relied on the biblical passage she referred to, which, when taken literally, recommends death by drowning for those who injure children, the judge presumably would have imposed a sentence much closer to the statutory maximum than the sentence she actually imposed. . . .
The court of appeals determined that a constitutional violation occurred here under Bakker because, in its view, the Book of Matthew functioned as a "tiebreaker" for a sentencing judge torn between a more lenient or a more harsh sentence. . . . Though a fair reading of the record supports the court of appeals" conclusion that the judge's reference to the Book of Matthew assisted her in finally resolving her deliberative struggle, Bakker merely prohibits a judge's personal religious principles from being "the basis of a sentencing decision." (Emphasis added.) Bakker, 925 F.2d at 741. Here, the record discloses many factors that cumulatively formed the basis of the court's sentence, including the testimony and letters provided to the court on behalf of Arnett and the victim, the psychologist's testimony regarding the harm suffered by the victim, and the nature of the multiple offenses. The Bible was but one factor, among many, that supported the judge's legally unremarkable decision to assign significant weight to the seriousness of Arnett's offenses against young victims.Id. at 803-04.
Finally, in upholding the state trial judge's sentencing decision, the Ohio Supreme Court emphasized the `limits of our holding today." Id. at 804. The court first emphasized its agreement with Bakker's "recognition of the fundamental constraints of due process in a sentencing proceeding" and that a sentencing judge's religious comments revealing an "explicit intrusion of personal religious principles as the basis of a sentencing decision" may violate due process. Id. (quoting Bakker, 925 F.2d at 741). The court next cautioned, without implying an ethical violation had occurred in this case, "that comments by a sentencing judge may implicate this state's ethical rules concerning impartiality and bias." Id. In conclusion, the court quoted the following excerpt from a treatise by Benjamin N. Cardozo to counteract any misreading of "our decision today . . . as a license for sentencing judges to preach from the bench:"
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight — errant, roaming at will in pursuit of his own ideal of beauty or goodness. * * * He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.Id. (quoting Benjamin N. Cardozo, The Nature of the Judicial Process (1991), at 141).
As an initial matter, before reaching the merits of petitioner's due process claim, it is important to point out that this Court is precluded from reviewing the propriety of the Ohio Supreme Court's resolution of the state-law issue confronting it as to whether or not the trial judge violated state statutory sentencing guidelines in this case. A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not "on the basis of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Moreover, absent a showing of "extreme circumstances where it appears that the [state court's] interpretation [of state law] is an obvious subterfuge to evade consideration of a federal issue," this Court is bound by the state supreme court's determination that no violation of Ohio's sentencing statute occurred in this case. See, e.g., Warner v. Zent, 997 F.2d 116, 133 (6th Cir. 1993) (quoting Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975)), cert. denied, 510 U.S. 1073 (1994); Cooper v. Scroggy, 845 F.2d 1385, 1395 n. 3 (6th Cir. 1988). Therefore, this Court will consider petitioner's claim only to the extent he alleges the trial judge's reference to the Bible, found to constitute a permissible exercise of her discretion under state law, nevertheless amounted to a violation of the Fourteenth Amendment's Due Process Clause.
Under the applicable standard of review set forth in 28 U.S.C. § 2254(d), petitioner is not entitled to relief in this federal habeas corpus proceeding unless the state court's adjudication of his due process claim resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 402-03 (2000) (O'Connor, J., writing for majority on this issue); Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert. denied, 522 U.S. 1112 (1998). A state court decision is "contrary to" clearly established federal law as determined by the Supreme Court under § 2254(d)(1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06 (O'Connor, J.); Harris, 212 F.3d at 942.
An "unreasonable application" of Supreme Court precedent occurs (1) if the state court identifies the correct legal standard but unreasonably applies it to the facts of the case, or (2) if the state court either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407-08 (O'Connor, J.). Under § 2254(d)(1)'s "unreasonable application" clause, a federal habeas corpus 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. Rather, that application must also be unreasonable." Id. at 411 (O'Connor, J .); see also McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000); Harris, 212 F.3d at 942. The reasonableness inquiry is an objective one; it does not involve a subjective inquiry into whether or not reasonable jurists would all agree that the state court's application was unreasonable. Williams, 529 U.S. at 409-10 (O'Connor, J.); see also Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000); Harris, 212 F.3d at 942-43. Moreover, the writ may issue only if the application is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee, 229 F.3d at 510, 512 (citing Williams, 529 U.S. at 412).
As the Ohio Supreme Court recognized, see Arnett, 724 N.E.2d at 801, it is well-established under Supreme Court precedents that "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause." Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality decision); see also Townsend v. Burke, 334 U.S. 736 (1948). The Supreme Court has held that a "fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). Although a criminal defendant has no due process right to a particular sentence imposed within the range authorized by statute, see Townsend, 334 U.S. at 741, he does have "a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process." Gardner, 430 U.S. at 358 (citing Witherspoon v. Illinois, 391 U.S. 510, 521-23 (1968), wherein the Court held that due process is violated if the jury imposing or recommending a death sentence "was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction"). The difficult question before this Court is to determine exactly what standard applies in assessing whether due process was satisfied in this case.
In Townsend, the Supreme Court held that the petitioner's sentence imposed within the statutory range did not satisfy the due process "requirement of fair play" because the trial judge's comments revealed petitioner was "sentenced on the basis of assumptions concerning his criminal record that were materially untrue." Townsend, 334 U.S. at 740-41. In so ruling, the Court stated:
It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.Id. at 741. Similarly, in a later case, the Supreme Court held a sentence imposed within statutory limits violated due process, because it was based "at least in part upon misinformation of constitutional magnitude." United States v. Tucker, 404 U.S. 443, 447 (1972) (remanding for reconsideration of sentence in case where the sentencing judge gave specific consideration to the defendant's three previous convictions, two of which were clearly unconstitutionally obtained). In analyzing the issue, the Supreme Court stated the question turned on whether the sentence "might have been different if the sentencing judge had known" the true facts, ie., that at least two of the defendant's prior convictions were invalid. Id. at 448. Finally, in the Gardner plurality decision, a death sentence was vacated because it was imposed, at least in part, on the basis of undisclosed confidential information contained in the pre-sentence report, which neither the petitioner nor his attorney had an opportunity to deny or explain. Gardner, 430 U.S. at 361-62. Recognizing that "death is a different kind of punishment from any other which may be imposed," the Court stated: "It is of vital importance to the defendant and the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion." Id. at 357-58.
Also of applicability to the case-at-hand are clearly-established Supreme Court precedents holding that "fairness" within the meaning of the Due Process Clause includes entitlement to an "impartial tribunal" during both the sentencing and the guilt phases of the criminal proceeding. See Robertson v. California, 498 U.S. 1004, 1005 (1990) (Blackmun, J., dissenting from denial of petition for writ of certiorari) (citing In re Murchison, 349 U.S. at 136). In In re Murchison, the Supreme Court explained:
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that "Every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law." . . . Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice."In re Murchison, 349 U.S. at 136 (citations omitted). In that case, the Court ruled that the due process requirement of an "impartial tribunal" was violated when a judge who had served as the "one-man grand jury" in the case also presided over contempt hearing arising out of witnesses' conduct during the grand jury proceedings. See id. at 137-39.
Although the Supreme Court has not considered the specific due process issue at hand regarding the propriety of judicial expressions of religious or personal beliefs in sentencing, the Fourth Circuit in Bakker held that the boundaries of due process are exceeded when a judge "takes his own religious characteristics into account in sentencing." Bakker, 925 F.2d at 740. The state and lower federal courts, including the Ohio Supreme Court in the instant case, have uniformly agreed with Bakker' § general holding that a judge's reliance on personal or religious beliefs in sentencing can amount to a violation of the defendant's right to a fair and impartial tribunal or, more generally, a fundamentally fair sentencing proceeding. See Arnett, 724 N.E.2d at 804; see also United States v. Autullo, 62 F.3d 1419 (table), No. 95-1020, 1995 WL 417577, at **2-3 (7th Cir. July 12, 1995) (unpublished); United States v. Boguess, 34 F.3d 1067 (table), No. 94-5212, 1994 WL 421321, at **3 (4th Cir. Aug. 12, 1994) (unpublished); Gordon v. Vose, 879 F. Supp. 179, 184-85 (D.R.I. 1995); Smith v. Nelson, No. 96-3326-DES, 1999 WL 33177301, at *2 (D. Kan. May 27, 1999) (unpublished) (citing United States v. Lowe, 106 F.3d 1498, 1504 (10th Cir.), cert. denied, 521 U.S. 1110 (1997), and United States v. Roth, 934 F.2d 248, 253 (10th Cir. 1991)); State v. Pattno, 579 N.W.2d 503, 508-09 (Neb. 1998), cert. denied, 525 U.S. 1068 (1999); cf. United States v. Ragland, 3 Fed. Appx. 279, 286 (6th Cir. Jan. 26, 2001) (not reported in Federal Reporter) (without indicating whether or not the issue involved an alleged violation of due process, the Sixth Circuit stated that the district court "clearly would have acted in error" if it had assessed the defendant's behavior for sentencing purposes under religious principles and had required the defendant to demonstrate she had undergone a form of "religious redemption" in order to show "acceptance of responsibility" under federal sentencing guidelines). In so concluding, the Ohio Supreme Court and the other state and federal courts considering the issue have reasonably extended the due process principles of fairness and an impartial tribunal recognized by the Supreme Court precedents discussed above, see supra pp. 18-19, as applying to prohibit a judge from rendering a sentence based on his or her own personal religious beliefs as opposed to objective standards set by statute which govern the judge in the exercise of his or her discretion.
No court, including the Supreme Court, has held or otherwise suggested that a judge's interjection of his or her religious beliefs into a case is perse inadmissible under the Due Process Clause. Therefore, the difficult question posed here is the proper standard to apply in assessing when such conduct exceeds the parameters of due process. In Bakker, the Fourth Circuit did not clearly articulate a standard of review. The decision could be read as holding that due process is violated when the sentencing judge's remarks are "too intemperate to be ignored" and leave the reviewing court "with the apprehension that the imposition of a lengthy prison term . . . may have reflected the fact that the court's own sense of religious propriety had somehow been betrayed." See Bakker, 925 F.2d at 740-41. The Bakker court also stated that "this case involves the explicit intrusion of personal religious principles as the basis of a sentencing decision." Id. at 741 (emphasis added). From this statement, the Ohio Supreme Court culled the standard it applied in determining whether a constitutional violation occurred in the instant matter, i.e., the defendant's due process rights are violated by a sentencing judge's religious comments only when such remarks reveal that the judge's personal religious beliefs were "the" or at least "the primary," basis for the sentencing decision. Arnett, 724 N.E.2d at 803, 804. The court went on to conclude under this standard that due process was not violated in this case because the Bible was "but one factor," or merely "one additional source," among many relied on by the judge in "assigning significant weight to a legitimate statutory sentencing factor" — i.e., the age of the victim as it relates to the seriousness of the offense. Id
In Autullo, supra 1995 WL 417577, at **2, the Seventh Circuit endorsed a similar standard when it stated the inclusion of an improper consideration in sentencing will not result in the reversal of the sentence as long as there are other "justifiable considerations" underlying the sentencing decision. In contrast, in Pattno, the Nebraska Supreme Court held the inquiry turns on whether the judge's challenged comments during sentencing would cause a "reasonable person" to "conclude that the sentence was based upon the personal bias or prejudice of the judge." Pattno, 579 N.W.2d at 507-09. The court held due process was violated in that case, involving a guilty plea by a man to a charge of sexual assault of a minor boy, because the trial judge's reading immediately prior to sentencing of a Biblical passage disparaging homosexuality "could cause a reasonable person to question the impartiality of the judge." Id.
Although the question is admittedly a close one, upon close review of the relevant Supreme Court cases discussed above, see supra pp. 18-19, this Court concludes that the standard employed by the Ohio Supreme Court in resolving the due process issue posed by this case is contrary to and involves an unreasonable application of those precedents. In Towns end and Tucker, which unlike the instant case involved reliance by the sentencing court on erroneous factual information, the Supreme Court's decision turned at least in part on consideration of the egregiousness, extensiveness, or materiality of the misinformation upon which the sentence was based. See Tucker, 404 U.S. at 447; Towns end, 334 U.S. at 740-41. The Bakker court also appears to have considered this as a factor in its determination of a due process violation, finding in that case that the sentencing judge's comments were "too intemperate to be ignored." Bakker, 925 F.2d at 741. In contrast, in this case, the Ohio Supreme Court did not address or make any findings regarding the substance of the judge's remarks and the degree of their impropriety as a factor to weigh in deciding whether a due process violation had occurred. In addition, and most importantly, it appears the Ohio Supreme Court utilized a stricter standard than the Supreme Court in ruling that a due process violation occurs only when the judge's comments reveal his or her religious beliefs were "the," or at least "the primary," basis for the sentencing decision. See Arnett, 724 N.E.2d at 803, 804. In Gardner, which concedely involved review of a death sentence where more caution and stricter standards must be adhered to given the severity and finality of the punishment, the Court found a due process violation when the death sentence was imposed "at least in part" on the basis of improperly considered information. Gardner, 430 U.S. at 362. Similarly, in Tucker, a non-death penalty case, the Court concluded that a sentence based "at least in part upon misinformation of constitutional magnitude" violated due process. Tucker, 404 U.S. at 447 (emphasis added).
The Supreme Court has not clearly enunciated a standard of review for assessing when consideration of an improper or erroneous factor in sentencing violates due process, but this Court is persuaded by language in Tucker which indicates that the question involves consideration of the likelihood that the sentence would have been different absent the sentencing court's reliance on the improper or erroneous information. See Tucker, 404 U.S. at 448 ("the real question here is . . . whether the sentence . . . might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained"). This standard of review comports with the standard employed in deciding whether an error occurring in the guilt phase of the criminal proceeding amounts to a violation of the defendant's due process right to a fundamentally fair trial. Cf. Strickland v. Washington, 466 U.S. 668, 687-89, 693-95 (1984) (in order to establish a denial of due process based on a violation of Sixth Amendment right to effective assistance of counsel, defendant must demonstrate not only unreasonable conduct by his attorney, but also that a "reasonable probability" exists that, but for his attorney's misconduct, the outcome of the trial would have been different); Alien v. Littlefield, 991 F.2d 794 (table), No. 92-3698, 1993 WL 93985, at **1 (6th Cir. Mar. 31, 1993) (unpublished) (prosecution's suppression of evidence favorable to the accused violates due process under Brady v. Maryland, 373 U.S. 83 (1963), where the evidence is "material" to either guilt or punishment, or in other words, "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different") ( quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643-48 (1974) (finding no due process violation based on the prosecutor's "ordinary trial error," because the improper conduct was not too "clearly prejudicial" to defendant, was followed by curative instructions, and would not have had a "significant'" or "important" impact on the jury's verdict); Lundy v. Campbell 888 F.2d 467, 473 (6th Cir. 1989) ("The ultimate question we must answer [in deciding whether the defendant was denied a fair trial] is whether the asserted trial errors, measured according to the fundamental principles of a fair criminal process implicit in the due process clause . . ., were so egregious as to have nullified the legitimacy of the properly admitted substantive evidence of the defendant's guilt."), cert. denied, 495 U.S. 950 (1990); Webster v. Rees, 729 F.2d 1078, 1081 (6th Cir. 1984) (concluding that due process was not violated by prosecutor's misconduct because, in light of the totality of circumstances," the conduct was not "so egregious" as to have "tilted the scales in favor of a guilty verdict").
In this case, the Ohio Supreme Court conceded in its opinion that a "fair reading of the record" supports the Ohio Court of Appeals' determination on direct appeal that the Bible verse "functioned as a `tiebreaker' for a sentencing judge torn between a more lenient or a more harsh sentence." Arnett,' 724 N.E.2d at 804. The state supreme court, however, disagreed with the appellate court's conclusion that the judge's reference to the Bible, therefore, was "the most essential factor" in determining the length of petitioner's sentence. Id. at 803-04. The court reasoned that (1) if the sentencing judge had so relied on the passage, she would have sentenced petitioner closer to the statutory maximum; and (2) the Bible was "was but one factor, among many" that the judge considered. Id. Although relevant, this reasoning does not fully answer the question reflected in Supreme Court case-law as to whether or not, in light of the totality of circumstances, a reasonable probability exists that the judge would have imposed a different, arguably more lenient sentence if she had not consulted the Bible as "one additional," final source of authority for determining the appropriate sentence. Such an inquiry requires consideration of the egregiousness of the sentencing judge's comments and the materiality of the Bible text in determining petitioner's sentence when viewed in light of all the other factors and evidence that were properly considered by the court.
A compelling argument can be made that the alleged impropriety involved in this case is less egregious than the errors in Townsend and Tucker involving the sentencing court's reliance on an "erroneous belief about a material fact (a defendant's prior criminal record)." See Klawonn v. United States, No. C-3-99-129, 2000 WL 988263, at *3 (S.D. Ohio Mar. 20, 2000) (Rice, J.) (unpublished) (emphasis added) (distinguishing Tucker and Townsend from case where the court sentenced the defendant based on "an erroneous prediction about the occurrence of a future event [regarding work release conditions] over which the court had no control"), aff'd, 11 Fed.Appx. 559 (6th Cir. June 7, 2001) (not reported in Federal Reporter). Here, the sentencing court was under no misapprehension about the facts she was to consider in deciding petitioner's sentence. As the Ohio Supreme Court pointed out, see Arnett, 724 N.E.2d at 800 (emphasis in original), the sentencing judge "did not add an impermissible factor to her analysis; rather she acknowledged an influence upon her consideration of an explicitly permitted factor." However, by the same token, the Bible verse referred to and quoted by the judge at sentencing in this case contains strong language condemning arid recommending a severe punishment for people, like petitioner, who commit offenses against children. Moreover, upon review of the sentencing transcript, it is clear and even conceded by the Ohio Supreme Court that "a fair reading of the record supports the court of appeals' conclusion that the judge's reference to the Book of Matthew assisted her in finally resolving her deliberative struggle." See id. at 804; see also Doc. 3, Ex. V, Tr. 51-53.
Certainly, as the Ohio Supreme Court recognized, see Arnett, 724 N.E.2d at 803-04, the fact that a sentence closer to the statutory maximum was not imposed provides support for the position that the Bible reference was not as material to the court's determination as it may appear from the judge's comments in open court. In addition, as the Ohio Supreme Court further recognized, see id. at 804, the trial judge indicated in her sentencing "monologue" that she had considered permissible factors and evidence, which included photographs of petitioner "growing up as a child" and of "downloading [of obscenity] . . . from [his] computer," letters submitted on petitioner's behalf, testimony of the victim and her father and mother, and testimony of a psychologist regarding the harm suffered by the victim as well as by petitioner as a result of the abuse he had received as a child. ( See Doc. 3, Ex. V, Tr. 48-53). Nevertheless, upon review of the entire record of the sentencing proceedings, this Court concludes it was unreasonable for the Ohio Supreme Court to find on those bases that the Bible text referred to by the trial judge was only "one factor, among many," or only one "additional source," that aided her in determining the appropriate sentence. It is clear from the record that the Bible was not just an "additional" source, but also the final source of authority consulted by the trial judge which ultimately resolved her "struggle" in determining petitioner's sentence. As the Ohio Court of Appeals pointed out in its decision ( see id., Ex. H, p. 5), without dispute by the Ohio Supreme Court, it further appears from the trial judge's statements comparing the instant case with a murder case she had presided over, involving "an individual who had no remorse and the sentence was 20 years" ( id., Ex. V, Tr. 51), that it was the Biblical passage with its recommendation of a severe punishment for child-offenders which ultimately convinced the judge to impose a harsher over a more lenient sentence. The fact that the age of the victim was a permissible statutory factor for the judge to consider does not excuse or lessen the impact of her improper resort to the Bible in determining the ultimate, decisive weight to be accorded that factor.
Accordingly, in sum, while acknowledging the question is a close one, this Court concludes that the Ohio Supreme Court's decision is contrary to and involves an unreasonable application of the applicable standard of review reflected in Supreme Court case-law discussed above, see supra pp. 18-23. Upon review of the entire transcript of the sentencing proceeding, including the evidence and factors that were properly considered by the trial judge, this Court concludes there is a "reasonable probability" that the judge would have imposed a different, more lenient sentence if she had not relied on the Book of Matthew to resolve her "struggle." It appears clear from the record that it was that particular Biblical text, strongly condemning and recommending a severe punishment for child-offenders, which ultimately convinced the trial judge to accord significant weight to the statutory factor of the victim's age in determining the appropriate sentence for petitioner.
This Court's Report and Recommendation should not be read or otherwise construed as impugning the integrity of the trial judge or her personal religious beliefs, which are laudable. Moreover, this decision may not be interpreted as requiring "a person to surrender his or her religious beliefs upon the assumption of judicial office." See Bakker, 925 F.2d at 740-41. Finally, as the Ohio Court of Appeals recognized in its decision, "not all religious comments during sentencing are impermissible." (Doc. 3, Ex. H, p. 4). "As the community's spokesperson, a judge can lecture a defendant as a lesson to that defendant and as a deterrent to others." Bakker, 925 F.2d at 740. Personal statements by a judge "simply highlighting] the seriousness of defendant's offense," or reflecting societal outrage as opposed to personal animus, will not invalidate a sentence. See, e.g., Roth, 934 F.2d at 253; Autullo, supra, 1995 WL 417577, at **3; cf. Gordon, 879 F. Supp. at 184-85 (when the trial judge remarked that "no man should take more than he is willing to give," in an apparent reference to the Bible, the judge "was merely intending to state that if one commits a serious crime, he must expect to receive a severe punishment" and "was not expressing his personal religious beliefs"); Poe v. State, 671 A.2d 501, 505-06 (Md. 1996) (general, "ill-advised" remarks by sentencing judge regarding his own religious and conservative moral beliefs, which did not reflect as in Bakker that the judge's personal religious beliefs had been betrayed by the defendant's criminal acts, did not warrant the reversal of the sentence). In addition, comments by a judge pertaining to his or her religious beliefs do not amount to a due process violation requiring the reversal of a sentencing decision where such beliefs are not a factor in the determination of the sentence. See, e.g., Six v. Delo, 885 F. Supp. 1265, 1272-73 (E.D. Mo. 1995) (claim that judge, who had referenced certain Bible passages prior to announcing death penalty, impermissibly relied on the Bible was meritless given the judge's testimony during evidentiary hearing that he looked at the Bible and prayed before he began his deliberations and that he* relied only on the facts and information based on the evidence presented at trial in deciding the appropriate sentence), aff'd on other grounds, 94 F.3d 469 (8th Cir. 1996), cert. denied, 520 U.S. 1255 (1997); United States v. Kirn, 172 F.3d 45 (table), No. 97-4606, 1999 WL 12924, at **1 (4th Cir. Jan. 14, 1999) (unpublished) (finding no constitutional violation in the court's comment deeming defendant's use of his church to commit criminal offense a "horrible hypocrisy," because it was made after the court had already decided not to depart below the sentencing guidelines range), cert. denied, 528 U.S. 809(1999).
The impropriety in this case warranting the reversal of petitioner's sentence does not stem from the fact that the state trial judge holds personal religious beliefs which implicitly may inform or guide her in her judgments, or from the mere fact that she referred to and quoted from the Bible during the sentencing proceedings. Moreover, there is no evidence in the record to suggest the trial judge was motivated by ill-will or actual bias against petitioner. On the contrary, it appears she was trying to reach what she believed to be a just sentence. However, by explicitly consulting and relying on a particular Bible passage during her sentencing deliberations as the final source of authority to resolve the "struggle" she was having in determining whether to impose a harsh or more lenient sentence, the state trial judge exceeded the boundaries of due process. The Due Process Clause requires that a sentence be based on objective, legal standards established by statute, as opposed to personal or religious standards that have not been established or sanctioned by our democratic process and that people in this country have never been compelled to follow or accept.
Accordingly, this Court concludes petitioner is entitled to habeas corpus relief based on the claims alleged in Grounds One and Two that he was denied due process when the state trial judge consulted and relied on a passage in the Bible to ultimately resolve her "struggle" about the appropriate sentence to impose. Because petitioner does not challenge his convictions, it is RECOMMENDED that only petitioner's sentence be vacated and the matter remanded to the state trial court for resentencing. This resentencing should be presided over by a different judge from the Hamilton County Common Pleas Court "to ensure that the ends of due process are achieved." See Bakker, 925 F.2d at 741; see also In re Murchison, 349 U.S. at 136 ("justice must satisfy the appearance of justice"). Petitioner is hereby notified, however, that he may not rely on any statements made in this opinion as precluding the state trial judge from imposing a harsher as well as a more lenient sentence than the one he originally received. On resentencing, any sentence imposed within the statutory range that satisfies the basic due process requirement of a "fair trial before a fair tribunal" will pass constitutional muster.
IT IS THEREFORE RECOMMENDED THAT:
Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be GRANTED unless the Hamilton County, Ohio Court of Common Pleas resentences petitioner, in proceedings presided over by a different judge than the one who originally sentenced petitioner, within ninety (90) days of the entry of any Order adopting this Report and Recommendation, or within such further time as the Court may allow for good cause shown.
NOTICE
Attached hereto is a Report and Recommendation issued by the Honorable Jack Sherman, Jr., United States Magistrate Judge, in the above-entitled habeas corpus action. Pursuant to Fed.R.Civ.P. 72(b), which may be applied in this action under Rules 1 and 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil. § 2254, any party may object to the Magistrate Judge's Report and Recommendation within ten (10) days after being served with a copy thereof. Such party shall file with the Clerk of Court and serve on all other parties written objections to the Report and Recommendation, specifically identifying the portion(s) of the proposed findings, recommendations, or report objected to, together with a memorandum of law setting forth the basis for such objection(s). Any response by an opposing party to the written objections shall be filed within ten (10) days after the opposing party has been served with the objections. See Fed.R.Civ.P. 72(b). A party's failure to make objections in accordance with the procedure outlined above may result in a forfeiture of his rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).