The opinion of the court was delivered by: Judge Marbley
On April 18, 2006, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus be granted on claim one, and that petitioner's sentence be vacated and he be released from incarceration unless the State of Ohio resentences him within ninety days; the Magistrate Judge recommended that the remainder of petitioner's claims be dismissed. Respondent has filed objections to the Magistrate Judge's Report and Recommendation.
Respondent objects solely to the Magistrate Judge's recommendation that the petition for a writ of habeas corpus be granted on claim one. Respondent objects to the Magistrate Judge's conclusion that the Ohio Court of Appeals decision denying petitioner's claim that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004), was an unreasonable application of federal law under 28 U.S.C. §2254(d). Respondent argues that, because the Ohio Supreme Court did not decide in State v. Foster, 109 Ohio St.3d 1 (Ohio 2006), that Ohio's sentencing statutes violated Blakely until February 27, 2006, after petitioner's appeal had already been decided, the Ohio Court of Appeals denying petitioner's claim was not unreasonable. In support of this argument, respondent refers to the "confusion and uncertainty" in state and federal courts regarding application of Blakely to the United States Sentencing Guidelines, and to state sentencing statutes. Finally, respondent argues that Blakely should not apply to negotiated plea agreements that include a jointly recommended sentence, as were the circumstances in this case.
The Court is not persuaded by respondent's arguments. The timing of the Ohio Supreme Court's consideration of Blakely's ramifications on Ohio's sentencing scheme is irrelevant to application of Blakely to the sentence imposed in this case, since Blakely was decided during the pendency of petitioner's appeal. Further, regardless of any lack of consensus or struggle by the state or federal courts to apply Blakely to state and federal sentencing schemes, this Court concludes, for the reasons discussed at length in the Report and Recommendation and in the Ohio Supreme Court's decision in Foster, supra, that the trial court's imposition of more than the mandatory minimum sentence under O.R.C. §2929.14(B) violated the United States Supreme Court's decision in Blakely. Contrary to respondent's argument here, nothing in the record reflects that petitioner admitted to any facts required for imposition of more than the mandatory minimum sentence or that he was advised that he was waiving his right to appeal his sentence by agreeing to a joint recommendation of sentence.
Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of those portions of the Report and Recommendation objected to by respondent. In view of all of the foregoing, and for the reasons discussed at length in the Magistrate Judge's Report and Recommendation, respondent's objections are OVERRULED.
Although petitioner was advised of his right to object to the Report and Recommendation, and of the consequences of his failure to do so, he nevertheless has failed to object to the Report and Recommendation.
The Report and Recommendation is ADOPTED and AFFIRMED. Claims two through five of the petition are DISMISSED. The petition for a writ of habeas corpus is GRANTED on claim one. Petitioner's sentence is VACATED, and he is to be released from incarceration unless the State of Ohio re-sentences petitioner within ninety (90) days.
ALGENON L. MARBLEY United States District Judge
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