Opinion
CASE NO. 2:07-cv-0148.
April 16, 2008
OPINION AND ORDER
On February 29, 2008, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This case is hereby DISMISSED.
Petitioner objects to the Magistrate Judge's conclusion that his claims are procedurally defaulted. Petitioner contends that he properly preserved his claims for federal habeas corpus review by presenting the claims in the first instance on appeal to the Ohio Supreme Court. In support of this contention, petitioner refers to Tanner v. Wolfe, unpublished, 2006 WL 3452414 (S.D. Ohio November 29, 2006), Report and Recommendation affirmed by Tanner v. Wolfe, 2007 WL 649960 (S.D. Ohio February 23, 2007), wherein the Magistrate Judge noted that the Ohio Supreme Court had considered claims raised under Blakely v. Washington, 542 U.S. 296 (2004), that had not been presented to the Ohio Court of Appeals. See Tanner v. Wolfe, supra, 2006 WL 3452414, at n. 7, citing State of Ohio v. Scranton Buchanan, 2006 WL 3059911 (Ohio App. 7 Dist. October 26, 2006).
However, Tanner v. Wolfe does not assist petitioner. Since Tanner, the Ohio Supreme Court has held that criminal defendants, like petitioner, who were sentenced after the United States Supreme Court's June 24, 2004, decision in Blakely must object at sentencing to preserve the issue for appellate review. State v. Payne, 114 Ohio St.3d 502, 506 (2007). As discussed by the Magistrate Judge, the trial court sentenced petitioner on March 27, 2006, long after Blakely and after the Ohio Supreme Court's February 27, 2006, decision in State v. Foster, 109 Ohio St.3d 1 (2006) (striking provisions of Ohio's sentencing statutes as unconstitutional in view of Blakely). Unlike the scenario in this case, Tanner was sentenced and his direct appeal dismissed by the Ohio Supreme Court prior to the United States Supreme Court's June 24, 2004, decision in Blakely. Tanner thereafter raised his Blakely claim reasonably promptly at the first opportunity he had to do so, i.e., in his post conviction appeal to the Ohio Supreme Court. He then again presented his Blakely claim to the state courts in a successive and untimely post conviction petition, but the state courts misapplied Blakely in refusing to consider that petition. This Court therefore addressed the merits of Tanner's Blakely claim. These circumstances are not present here.
Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of the Magistrate Judge's Report and Recommendation. The Court has carefully considered the entire record. For the reasons detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED.
IT IS SO ORDERED.