In Payne v. Sheets, 75 Vt. 355, it was held that the exclusive right to shoot and fish upon the lands of another when not granted in favor of any dominant tenement, is not an easement, but a profit a prendre, and the grantee of such right, though not the owner of the soil, has such interest in land as would entitle him to maintain an action of trespass, under a statute authorizing such an action, in respect of lands by the owner thereof.Summary of this case from Council v. Sanderlin
CASE NO. 2:08-CV-883.
September 20, 2010
OPINION AND ORDER
On May 17, 2010, the United States Magistrate Judge issued a Report and Recommendation recommending that the claims asserted in this habeas corpus action, filed pursuant to 28 U.S.C. § 2254, be dismissed as procedurally defaulted. Report and Recommendation, Doc. No. 10. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. Objections, Doc. No. 15. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner objects to the Magistrate Judge's recommendation that his claims be dismissed as procedurally defaulted. Petitioner again argues at length that, because the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1 (2006), remanded for re-sentencing all cases then pending on direct review, he did not waive his claim under Blakely v. Washington, 542 U.S. 296 (2004), for consideration in these proceedings, despite his failure to raise an objection at sentencing. According to petitioner, Ohio had no procedural rule requiring that he raise his Blakely claim at sentencing in order to preserve that issue for appellate review. He argues that Foster created a "unique rule" in Ohio as to Blakely claims. Petitioner refers to various Ohio cases that were remanded for re-sentencing under Foster without consideration as to whether the claim had been raised in the trial court below. With regard to his equal protection claim, petitioner contends that his failure to raise this claim in the Ohio courts was because Ohio offers no avenue of redress for such a claim. Finally, petitioner asserts that his sentence constituted plain, but not harmless, error. See Objections.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons detailed by the Magistrate Judge, this Court also remains unpersuaded by petitioner's arguments. Petitioner was sentenced almost one year after Blakey, but prior to the Ohio Supreme Court's decision in Foster. Ohio has a long-standing and consistently enforced contemporaneous objection rule, and Payne could not have been misled about the requirement that he raise his objection at sentencing in order to preserve the claim for state court appellate review. Further, and contrary to petitioner's allegation here, he could have, but did not, raise his equal protection claim in the state appellate court and Ohio Supreme Court. Because petitioner's claims are procedurally defaulted, this Court need not address whether the error alleged by him constituted plain error or was harmless.
For these reasons and for the reasons already addressed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT in this case.