The opinion of the court was delivered by: Judge Holschuh
On November 13, 2006, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus be conditionally granted on petitioner's claim that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), and that petitioner's sentence be vacated and petitioner released from incarceration unless the State of Ohio re-sentences him within ninety days; the Magistrate further recommended that the remainder of petitioner's claims be dismissed. Doc. No. 10.
Respondent and petitioner have filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, those objections are OVERRULED. The Report and Recommendation of the Magistrate Judge is ADOPTED and AFFIRMED. All of petitioner's claims, with the exception of his claim that his sentence violated Blakely are DISMISSED. The petition for a writ of habeas corpus is conditionally GRANTED on petitioner's claim that his sentence violated Blakely, petitioner's sentence is VACATED and he is to be released from incarceration unless the State of Ohio re-sentences him within ninety (90) days.
Respondent objects solely to the Magistrate Judge's recommendation that the petition for a writ of habeas corpus be conditionally granted on petitioner's Blakely claim. Respondent argues that the state court's decision rejecting petitioner's Blakely claim was not contrary to or an unreasonable application of federal law within the meaning of 28 U.S.C. §2254(d)(1), see Williams v. Taylor, 529 U.S. 362 (2000), in view of the "uncertainty" and "confusion" in state and federal courts in applying Blakely, and because the Ohio Supreme Court did not decide in State v. Foster, 109 Ohio St.3d 1 (2006), that Ohio's sentencing statutes violated Blakely until after the state courts had already rejected petitioner's Blakely claim. Objections, at 9.
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 not determinative to application of Blakely to the sentence imposed in this case. Further, regardless of any lack of consensus or struggle by the state or federal courts to apply Blakely to state and federal sentencing schemes, for the reasons discussed by the Ohio Supreme Court in Foster, supra, this Court likewise concludes that, to the extent the state court's decision rejecting petitioner's Blakely claim is entitled to deference in these habeas corpus proceedings,*fn1 such decision was contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court under 28 U.S.C. §2254(d)(1).
Respondent also again argues that Blakely is inapplicable to petitioner's sentence, and that the claim must be dismissed because it is presented in habeas corpus proceedings, rather than on direct appeal. Objections, at 3. In support of such argument, respondent refers to English v. Brooks, 2006 WL 2849733 (N.D. Ohio September 30, 2006), Attachment 1 to Objections. Again, respondent's argument is not persuasive.
Petitioner pleaded guilty on September 27, 2004, after the United States Supreme Court's June 24, 2004, decision in Blakely. Blakely therefore applies to the sentence imposed in this case, and a Blakely claim is properly considered in these proceedings. English v. Brooks, supra, referred to by respondent, does not support respondent's argument. In English v. Brooks, supra, the defendant's sentence - - unlike petitioner's -- became final long before the Supreme Court's decision in Blakely. See Humphress v. United States, 398 F.3d 855 (6th Cir. 2005)(Blakely is not to be applied retroactively to cases on collateral review.)
Respondent also contends that petitioner's sentence did not constitute harmless error under Washington v. Recuenco, -- U.S. --, 126 S.Ct. 2546 (2006)(holding that Blakely violation does not constitute structural error, but is subject to harmless error review.) Respondent argues that petitioner cannot establish prejudice and that any Blakely violation therefore constitutes harmless error because petitioner was sentenced within the statutory range authorized under Ohio law, because he did not receive the maximum possible term and because, upon remand, the state trial court may again impose the same sentence that was previously imposed.
To establish harmless error such that this Court lets stand a defendant's sentence in spite of errors at trial or sentencing below, the government must "prove that none of the defendant's substantial rights [has] been affected by the error." United States v. Oliver, 397 F.3d 369, 381 (6th Cir.2005) (citing Fed.R.Crim.P. 52(a)); United States v. Barnett, 398 F.3d 516, 530 (6th Cir.2005). See also Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (noting that the government bears the burden of proof on harmless error); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (same). To carry this burden, the government must demonstrate to this Court with certainty that the error at sentencing did not "cause[ ] the defendant to receive a more severe sentence." Oliver, 397 F.3d at 379 (internal citation omitted); United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005) ("Under the harmless error test, a remand for an error at sentencing is required unless we are certain that any such error was harmless.") (emphasis added).
In a habeas corpus proceeding, to determine whether a constitutional trial error is harmless, a federal court must decide whether the error " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), quoting Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). If a federal judge in a habeas proceeding "is in grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless. And, the Petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (internal quotation omitted). The harmless error analysis articulated in Brecht applies even if a federal habeas court is the first to review for harmless error. Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999).
Lakin v. Stine, 358F.Supp.2d 605, 616 (E.D. Michigan 2005).
Under the harmless error test, a remand for an error at sentencing is required unless we are certain that any such error was harmless -- i.e. any such error "did not affect the district court's selection of the sentence imposed." Williams v. United ...