Hill v. Sheets
| Decision Date | 04 November 2008 |
| Docket Number | Case No. 2:07-cv-539. |
| Parties | Matthew L. HILL, Petitioner, v. Michael SHEETS, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Matthew L. Hill, Chilicothe, OH, pro se.
On July 3, 2008, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus conditionally be granted on claim one, in which petitioner asserts that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that petitioner's sentence be vacated and petitioner released from incarceration unless the State re-sentences him within sixty (60) days. The Magistrate Judge further recommended that claim two, petitioner's sole remaining claim for relief, be dismissed.
Although the parties explicitly were advised of the right to object to the Magistrate Judge's Report and Recommendation, and of the consequences of failing to do so, petitioner has filed no objections.1
Respondent, however, has filed objections to the Magistrate Judge's Report and Recommendation. Respondent objects solely to the Magistrate Judge's conclusion that petitioner established cause for the procedural default of his Blakely claim and the Magistrate Judge's recommendation that the petition for a writ of habeas corpus conditionally be granted on such claim.
For the reasons that follow, respondent's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. Claim two is DISMISSED. The petition for a writ of habeas corpus conditionally is GRANTED on claim one. Petitioner's sentence is VACATED, and petitioner shall be released from incarceration unless the State resentences him within sixty (60) days.
Respondent again argues that petitioner cannot establish the ineffective assistance of appellate counsel as cause for the procedural default of petitioner's Blakely claim because the trial court justified imposition of maximum and consecutive sentences based solely upon petitioner's prior sentence and facts either admitted by petitioner or reflected in the jury's verdict and because, at the time petitioner filed his appellate brief, the Ohio Fifth District Court of Appeals had concluded that Blakely did not apply to Ohio's sentencing statutes. Respondent also again argues that petitioner has failed to establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because under State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), the trial court is free to re-impose the same sentence upon remand. Finally, referring to Cobbin v. Hudson, 2008 WL 552484 (N.D.Ohio February 26, 2008), respondent argues that habeas corpus relief is not warranted because no clearly established federal law of the United States Supreme Court mandates that Blakely applies when a trial court imposes consecutive sentences based upon judicial fact finding.
Respondent's arguments are not persuasive. Contrary to respondent's argument here, the record indicates the trial court justified imposition of sentence based upon petitioner's prior record as well as factual findings neither admitted by the defendant nor reflected in the jury's verdict, for example, that petitioner had shown no genuine remorse, failed to acknowledged a pattern of alcohol and drug abuse as it related to the offenses, had not learned from his past experiences in the criminal system, and that maximum sentences were necessary to protect society given, inter alia, petitioner's nature, and because petitioner possessed the greatest likelihood of committing further crimes of a similar nature. See Sentencing Transcript, Exhibit B to Motion in Opposition; Entry of Judgment, Exhibit 3 to Return of Writ. As noted by the Magistrate Judge, petitioner was sentenced after Blakely and his appeal remained pending after the Ohio Supreme Court issued its decision in Foster, invalidating portions of Ohio's sentencing scheme as unconstitutional under Blakely. Thus, the two-prong test of Strickland has been met based upon appellate counsel's failure to raise a Blakely claim on direct appeal. Further, this Court remains unpersuaded that petitioner has failed to establish prejudice simply because the state trial court may re-impose the same sentence upon remand.
The flaw in this reasoning is that it equates a possibility of no actual prejudice in terms of the eventual sentence received with an actuality of no prejudice resulting from a constitutional error.... [S]peculation that a judge might repeat his or her sentence without explicit factfinding does not render an error harmless as a certainty. The former scenario involves the realities of state law-either it affords an avenue to render the error harmless or it does not-while the latter presupposes a reality in which but one outcome is certain. But because more than one outcome is possible upon re-sentencing, basing harmlessness [or lack of prejudice] on an assumed certainty is flawed. It converts the concept of harmless error in this context into a doctrine of always harmless error. Such conversion is especially dangerous when, as here, the possibility of a different sentence must logically preclude any habeas court from saying for a certainty that the error is harmless.
Villagarcia v. Warden, Noble Correctional Institution, 2007 WL 1028528 (S.D.Ohio March 30, 2007). The Court need not address respondent's argument as it relates to Cobbin v. Hudson, supra, and Blakely's alleged nonapplication to imposition of consecutive sentences since the trial court in this case imposed maximum as well as consecutive sentences based upon prohibited judicial fact finding.
Pursuant to 28 U.S.C. § 626(b)(1) this Court has conducted a de novo review of the Report and Recommendation. This Court has carefully considered the entire record. For the foregoing reasons and for reasons detailed in the Magistrate Judge's Report and Recommendation, respondent's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. Claim two is DISMISSED. The petition for a writ of habeas corpus conditionally is GRANTED on claim one. Petitioner's sentence is VACATED, and petitioner shall be released from incarceration unless the State resentences him within sixty (60) days.
IT IS SO ORDERED.
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 traverse, petitioner's request for a stay, respondent's opposition, petitioner's reply, petitioner's motion to strike, and the exhibits of the parties.
This action involves petitioner's convictions after a jury trial in the Muskingum County Court of Common Pleas on two counts of felonious assault with firearm specifications. The trial court imposed the maximum possible sentence of an aggregate term of sixteen years incarceration. The Fifth District Court of Appeals affirmed the trial court's judgment, and the Ohio Supreme Court dismissed petitioner's subsequent appeal. The state appellate court denied petitioner's application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), and the Ohio Supreme Court dismissed petitioner's subsequent appeal. Although post conviction proceedings were still pending at the time petitioner filed this habeas corpus petition, on December 17, 2007, the state appellate court dismissed petitioner's post conviction appeal. It does not appear from the record that petitioner ever pursued a timely appeal of that decision to the Ohio Supreme Court.
In this habeas corpus petition, petitioner asserts that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that his convictions and sentence violated the Double Jeopardy Clause. For the reasons that follow, petitioner's request for a stay, Doc. No. 10, is DENIED, as moot. Petitioner's motion to strike respondent's response to his request for a stay, Doc. No. 15, is DENIED. The Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus conditionally be GRANTED on claim one, that petitioner's sentence be VACATED and petitioner be released unless the State re-sentences him within sixty (60) days. The Magistrate Judge further RECOMMENDS that claim two be DISMISSED.
The Ohio Fifth District Court of Appeals summarized the procedural history of this case as follows:
On February 2, 2004, Appellant entered the residence of Danny Thornhill. An altercation occurred between Appellant and Thornhill. During this altercation, Thornhill was struck repeatedly with a handgun. Thornhill fled the residence, followed by Appellant who fired at least two shots at Thornhill. By the time police arrived, Appellant had fled from the scene.
On February 11, 2004, the Muskingum County Grand Jury indicted Appellant on the following charges: one count of Aggravated Robbery with a gun specification, in violation of Ohio Revised Code Section 2911.01(A)(1) and 2941.145, a felony of the first degree; one count of Aggravated Burglary with a gun specification, in violation of Ohio Revised Code Section 2911.11(A)(2) and 2941.145, a felony of the first degree; two counts of Felonious Assault with a gun specification, in violation of Ohio Revised Code Section 2903.11(A)(2) and 2941.145, a felony of the second degree; one count of Theft of a Firearm, in violation of Ohio Revised Code Section 2913.02(A)(1) and 2941.145, a felony of the fourth degree; and one count of Aggravated Burglary with a gun specification, in violation of Ohio Revised Code Section 2911.11(A)(1) and 2941.145, a felony of the first degree.
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