The opinion of the court was delivered by: Judge Gregory L. Frost
MAGISTRATE JUDGE MARK R. ABEL
On January 11, 2007, the Magistrate Judge issued aReport and Recommendation (Doc. # 17) recommending that claims one through four of the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed and that the petition conditionally be granted on claims eight and nine, in which Petitioner asserts that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). The Magistrate Judge also recommended that the remainder of Petitioner's claims be dismissed as moot. Respondent has filed objections (Doc. # 21) to the Magistrate Judge's recommendation that the writ conditionally be granted on claims eight and nine. Although Petitioner was advised of his right to object to the Magistrate Judge's Report and Recommendation and of the consequences of failing to do so, he nevertheless has not filed any objections to the Report and Recommendation. For the reasons that follow, this Court concludes that Respondent's objections are not well taken.
Petitioner, Gerardo Villagarcia, was convicted on February 6, 2003 after a jury trial in the Franklin County Court of Common Pleas on two counts of child endangering and felonious assault arising from injuries sustained by five-month-old Madison Freditz, a child who was in Petitioner's care. On March 24, 2003, Villagarcia was sentenced to serve seven years each on the felony of the second degree child endangering and the felonious assault counts and four years on the felony of the third degree count of child endangering, with all sentences to be served concurrently. March 24, 2006 Return of Writ, Exhibit 4. On direct appeal, Villagarcia did not challenge the constitutionality of his sentence. He did argue that the trial judge had sentenced him to more than the minimum term without making the required findings under Ohio Rev. Code § 2929.14(B). On March 28, 2004, the Ohio Court of Appeals affirmed Villagarcia's convictions, but reversed his sentence and remanded for re-sentencing because the trial judge had failed to make the required statutory findings and had failed to provide Villagarcia proper notice regarding post-release control. Accordingly, the case was remanded for re-sentencing. Exhibit 9. After the Supreme Court of Ohio denied his motion for leave to appeal from that decision, the trial judge re-sentenced Villagarcia and imposed the same sentence. That sentence was journalized on January 23, 2004. Exhibits 13 and 14.
Villagarcia did not file a timely appeal of his re-sentencing. On September 15, 2005, Villagarcia, pro se, filed a motion for leave to file a delayed appeal. Id., Exhibit 15. On October 28, 2005, the Ohio Court of Appeals denied the motion for delayed appeal, finding that Villagarcia had failed to provide sufficient reason for his failure to timely perfect an appeal. Id., Exhibit 17. Villagarcia, again proceeding pro se, timely appealed that decision to the Supreme Court of Ohio. In his memorandum in support of jurisdiction, Villagarcia included the following propositions of law:
IV. The sentence imposed is void pursuant the Sixth and Fourteenth Amendments to the United States Constitution, under federal law. Thus, Ohio's Sentencing Statutes are unconstitutional. Apprendi v. New Jersey, (2000), 530 U.S. 466; Ring v. Arizona, (2002), 536 U.S. 584; Blakely v. Washington, (2004), 124 S.Ct. 2531; United States v. Booker, 125 S.Ct. 738.
V. The imposition of a sentence consisting of a prison term exceeding the shortest prison term specified in O.R.C. § 2929.14(A) for the felony offense of conviction violates the Defendant's right to a jury trial and right to Due Process under the Sixth and Fourteenth Amendments to the United States Constitution and the Defendant's right to grand jury presentment under the Fifth Amendment and under Article I, Section 10, of the Ohio Constitution, when the additional findings required by O.R.C. § 2929.14(B) for the imposition of a non-minimum prison term was not decided by a jury under the beyond a reasonable doubt Exhibit 18. On March 8, 2006, the Supreme Court of Ohio dismissed the appeal. Exhibit 20.
Respondent objects solely to the Magistrate Judge's recommendation that the petition for a writ of habeas corpus conditionally be granted on Petitioner's claim that his sentence violated Blakely. Respondent raises all of the same arguments that were previously presented. Respondent again argues that Petitioner procedurally defaulted his Blakely claim by failing to raise the issue in his first appeal, although Ohio's Tenth District Court of Appeals affirmed Petitioner's convictions and remanded the case for re-sentencing on March 24, 2003, long before Blakely was decided. See Exhibit 9 to Return of Writ. Respondent nonetheless argues that Petitioner was required to raise his Blakely claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), in order to preserve the issue for federal habeas corpus review.
In support of this argument, respondent refers Furlow v. Moore, No. 3:06-cv-108 (S.D. Ohio Jan. 25, 2007), wherein Chief United States Magistrate Judge Michael R. Merz recommended that a petitioner's Blakely claim be dismissed as procedurally defaulted because the petitioner had failed to raise the claim under Apprendi on direct appeal. The facts of Furlow differ from this case in that Furlow had filed his appellate brief prior to Blakely, but the state appellate court affirmed Furlow's sentence approximately three months after Blakely was decided. Arguably, therefore, Furlow could have requested to amend his appellate brief to include a Blakely claim, or raised the claim in a timely appeal to the Ohio Supreme Court.*fn1 In any event, Furlow is not binding on this Court.
As discussed in the Report and Recommendation (Doc. # 17), Petitioner's sentence here did not violate Apprendi as that case had been interpreted prior to Blakely. This Court therefore remains unpersuaded by Respondent's argument that Petitioner was required to raise his Blakely claim under Apprendi as that case had been interpreted prior to Blakely in order to preserve the error for federal habeas corpus review. See, e.g., United States v. Burgess, 142 F. App'x 232, 240 (6th Cir. June 22, 2005) (no ineffective assistance of counsel for failing to predict Blakely); Green v. United States,65 F.3d 546, 551 (6th Cir. 1995); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981); Conley v. United States, Nos. 1:05-cv-369 & 1:02-cr-68, 2005 WL 1420843, at *3 (W.D. Mich. June 15, 2005).
Respondent also again argues at length that the Ohio Court of Appeals' denial of Petitioner's Blakely claim, although incorrect, did not constitute an "objectively unreasonable" application of federal law as determined by the United States Supreme Court. He asserts that the appellate court made a "thoughtful and well considered decision" in light of the confusion in federal and state courts immediately following Blakely and because there was "no Supreme Court precedent available to explain whether Blakely was applicable to Ohio's sentencing statutes." (Doc. # 21, at 4-21.)
These arguments are without merit. The state appellate court rejected Petitioner's Blakely claim by reasoning that Petitioner was not sentenced beyond the statutory maximum authorized for the offenses of conviction. See Exhibit 17 to Return of Writ. Such reasoning constituted an objectively unreasonable application of Blakely, which defined " 'statutory maximum' for Apprendi purposes [as] the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. See 28 U.S.C. §2254(d), (e); Williams v. Taylor, 529 U.S. 362 (2000).
The Court further notes that the United States Supreme Court in Cunningham v. California, 127 S.Ct. 856 (2007), recently struck California's determinate sentencing law as unconstitutional under Blakely. California's determinate sentencing law was similar to Ohio's sentencing statutes, which the Ohio Supreme Court subsequently struck as unconstitutional in State v. Foster, 109 Ohio St. 3d 1, 845 N.E.2d 470 (2006). California's statutes authorized the defendant to be sentenced to a lower, mid, or upper term, but obligated the trial court to impose the middle term unless the judge found certain aggravating factors to exist. The United States Supreme Court held that "[b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." Cunningham, 127 S.Ct. at 871. Here, Ohio's statute likewise required trial judges to make their own findings before imposing more than the minimum sentence. See Foster, 109 Ohio St. 3d at 19-20, 845 N.E.2d at 489-90.
Finally, citing Washington v. Recuenco, 126 S.Ct. 2546 (2006), Respondent contends that the Blakely error was harmless because, upon remand, the trial judge may simply impose the same sentence or any sentence within the statutory range authorized for the offenses of conviction. (Doc. # 17, at 21-27.) The state law involved in Washington required a three-year sentencing enhancement if a defendant used a firearm to commit an assault, but a one year enhancement if he used a "deadly weapon." The verdict form asked the jurors whether the defendant used a "deadly weapon." They answered that question affirmatively. The evidence at trial was that defendant used a firearm to commit the assault. The lower court held that it was a Blakely error for the trial judge to make the finding that defendant used a firearm and impose a three-year sentencing enhancement instead of a one-year enhancement based on the jury verdict that defendant used a deadly weapon. Id. at 2549-50. The United States Supreme Court held that the lower court erred in holding that the error was structural and could not be harmless. Id. at 2551-53. Notably, the Supreme Court also explained that because there was an open issue as to whether state law provided for a procedure by which the jury could have made a ...