The opinion of the court was delivered by: Judge Graham
ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's response and supplemental response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's claim that his sentence violated Ohio law and the Double Jeopardy Clause be DISMISSED.
It is furtherrecommended that petitioner's September 7, 2006, motion for summary judgment, Doc. No. 7, based upon respondent's alleged failure to timely file the Return of Writ be DENIED. The show cause order was issued on July 11, 2006. On July 19, 2006, the Court granted respondent's July 18, 2006, request for extension of time until October 2, 2006, to file the return of writ. Doc. Nos. 3, 4. Respondent timely filed the Return of Writ on September 27, 2006. Doc. No. 8.
Petitioner's requests to amend the petition to include the additional claims that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), see Doc. No. 10; the ineffective assistance of trial and appellate counsel, Doc. No. 11; and that his guilty plea was coerced, Doc. No. 13; are GRANTED. Respondent is DIRECTED to file a response to the foregoing claims within twenty (20) days of the date of this order.
I. REQUESTS TO AMEND THE PETITION WITH NEW CLAIMS
On January 30, 2007, petitioner filed an "Addendum," in which he appears to assert that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). Doc. No. 10. On February 22, 2007, petitioner filed a "Motion to Withdraw Plea," in which he additionally asserts that he was denied the ineffective assistance of trial and appellate counsel. Doc. No. 11. On March 20, 2007, petitioner filed "Additional Information" in support of his motion to withdraw his guilty plea, in which he alleges that his guilty plea was coerced as a result of the lies and improper conduct by Detective Stout. Doc. No. 13. This Court is without the authority to permit petitioner to withdraw his guilty plea, but it may consider certain constitutional claims that might have tainted guilty plea proceedings. However, none of the foregoing claims were previously raised by petitioner. The Court therefore construes the foregoing filings as requests by petitioner to amend his petition to include these additional claims as grounds for habeas corpus relief. Because none of petitioner's requests to amend the petition to include new claims appear to be barred by the one-year statute of limitations under 28 U.S.C. §2244(d),*fn1 see Mayle v. Felix, 545 U.S. 644 (2005), petitioner's requests to amend the petition with new claims, Doc. Nos. 10, 11, and 13, hereby are GRANTED.
I. FACTS and PROCEDURAL HISTORY
The Ohio Third District Court of Appeals summarized the factual findings and procedural history of this case as follows:
On October 4, 2004, Helton entered into Lakeview Hardware and stole, among other items, a number of rifles and other firearms. The Logan County Grand Jury returned an indictment against Helton on November 9, 2004. This indictment contained 81 counts of grand theft of a firearm (one for each firearm stolen), seven counts of breaking and entering, two counts of grand theft of a motor vehicle, one count of safecracking, three counts of unlawful sexual conduct with a minor and one count of engaging in a pattern of corrupt activity. Pursuant to a written plea agreement, on February 7, 2005, Helton pled guilty to two counts of grand theft of a firearm (felonies of the third degree) and two counts of breaking and entering (felonies of the fifth degree).*fn2 The remaining 91 counts of the indictment were dismissed by the State. On March 18, 2005, a sentencing hearing was held. The trial court sentenced Helton to four years in prison on each of the grand theft of a firearm convictions and one year in prison on each of the breaking and entering convictions. The trial court then ordered that the sentences be served consecutively for a total prison term of 10 years.
Exhibit 11 to Return of Writ. Represented by new counsel, petitioner filed a timely appeal and raised the following sole assignment of error:
The trial court abused its discretion and committed plain error when it sentenced [Helton] to consecutive prison terms for two separate thefts, as the thefts constituted a single act with a singular intent and should have been merged under R.C. 2941.25(A).
Id. On August 15, 2005, the appellate court affirmed the judgment of the trial court. Id. Proceeding pro se, petitioner filed a timely appeal to the Ohio Supreme Court, in which he raised the following proposition of law:
The trial court abused its discretion and committed plain error when it sentenced appellant to two consecutive prison terms for two thefts from a single act of conduct with the same animus, an allied offense analysis was required by law. R.C. 2941.25(A).
Exhibit 12 to Return of Writ; see also Exhibit 13 to Return of Writ. Through counsel, petitioner filed a memorandum in support of jurisdiction asserting the following proposition of law:
The trial court abused its discretion and committed plain error when it sentenced petitioner to consecutive prison terms for two separate thefts, as the thefts constituted a single act with a singular intent and should have been merged under R.C. 2941.25(A).
Exhibit 14 to Return of Writ. On January 25, 2006, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit 15 to Return of Writ.
On July 5, 2005, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the respondent in violation of the ...