Opinion
Case No. 1:05CV0033.
September 8, 2006
MEMORANDUM OPINION AND ORDER
On January 7, 2005, Petitioner George Keeton, ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his criminal conviction. This case was referred to Magistrate Judge Nancy A. Vecchiarelli for preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and LR 72.1 (Dkt. # 4). On July 20, 2006, Magistrate Judge Vecchiarelli filed a report recommending that Petitioner's application for habeas corpus be granted in part, with respect to Ground Two, and denied in part on the remaining grounds. (Dkt. # 22). The Magistrate further recommended that the case be remanded for re-sentencing consistent with Blakely v. Washington, 542 U.S. 296 (2004) andState v. Foster, 109 Ohio St.3d 1 (2006). (Dkt. # 22).
On July 24, 2006, Respondent Margaret Bradshaw ("Respondent") filed partial objections to the Magistrate Judge's report and recommendation. (Dkt. # 23). On August 25, 2006, Petitioner filed his objections to the Magistrate Judge's recommendation. (Dkt. # 25). The Court has reviewed the report and recommendation of the Magistrate Judge, de novo. The Court finds that the report and recommendation (Dkt. # 22) is well-supported and that the objections are without merit. Therefore, Magistrate Judge Vecchiarelli's report and recommendation is hereby ADOPTED and the objections are overruled.
Accordingly, Petitioner's Writ of Habeas Corpus is GRANTED in PART with respect to Ground Two, and DENIED in PART on the remaining grounds. Furthermore, this case is REMANDED to the Court of Common Pleas, Richland County, Ohio, for resentencing consistent with Blakely and Foster. Finally, the court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.