Noland v. Hurley, 2:05-cv-682.

• Decision Date: 18 October 2007
• Docket Number: No. 2:05-cv-682.,2:05-cv-682.
• Citation: 523 F.Supp.2d 659
• Parties: Dennis NOLAND, Petitioner, v. Pat HURLEY, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

523 F.Supp.2d 659

Dennis NOLAND, Petitioner, v. Pat HURLEY, Warden, Respondent.

No. 2:05-cv-682.

United States District Court, S.D. Ohio, Eastern Division.

October 18, 2007.

COPYRIGHT MATERIAL OMITTED

Dennis Noland, Caldwell, OH, Pro se.

Jerri Lynne Fosnaught, Office of the Ohio Attorney General, Columbus, OH, for Respondent.

OPINION AND ORDER

MICHAEL H. WATSON, District Judge.

On January 17, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas pursuant to 28 U.S.C. § 2254 conditionally be granted on petitioner's claim that his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that petitioner's sentence be vacated and petitioner released from incarceration unless the State of Ohio re-sentences him within ninety days. Doc. No. 22. Respondent has filed objections to the Magistrate Judge's recommendation that the petition conditionally be granted. Doc. No. 23.

Respondent argues that petitioner cannot benefit from the United States Supreme Court's holding in Blakely because his claim that his sentence violated Blakely is presented in federal habeas corpus proceedings, i.e., on collateral review, and not on direct appeal. Objections, at 4. Respondent refers to Minor v. Wilson, 2007 WL 106771 (6th Cir. Jan. 17, 2007), and English v. Brooks, 2006 WL 2849733 (N.D.Ohio Sept. 30, 2006), in support of this argument. See Exhibits to Objections, Doc. No. 23. Neither of these cases, however, are analogous to the scenario in this case. In Minor v. Wilson, supra, an unpublished decision, the United States Court of Appeals for the Sixth Circuit's rejected Minor's claim of ineffective assistance of appellate counsel for failure to challenge Minor's sentence as imposed in violation of state law, concluding that Minor could not establish that his attorney had acted unreasonably under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by failing to raise on appeal an issue that the trial court had failed to comply with Ohio's sentencing statutes when it imposed consecutive sentences. In a footnote, the Sixth Circuit stated that Minor could not benefit from State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), which invalidated portions of Ohio's sentencing statutes as unconstitutional after Blakely, because Foster applied only to cases pending on direct review, and because Foster actually worked "to Minor's detriment, as trial courts are no longer required to make any findings or give any reasons when imposing consecutive sentences." However, the Sixth Circuit in Minor v. Wilson did not consider the issue of harmless error in the context of an otherwise meritorious Blakely claim.¹ Notably, moreover, in both Minor v. Wilson, supra, and English v. Brooks, supra, the defendants' sentences — unlike Noland's — became final long before the Supreme Court's decision in Blakely. See Humphress v. United States, 398 F.3d 855 (6th Cir.2005)(Blakely is not to be applied retroactively to cases on collateral review).

Noland was re-sentenced in January 2004. His attorney filed a request to withdraw as counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in May 2004. Petitioner filed a pro se supplemental brief on June 24, 2004, the day that Blakely was decided. The state appellate court affirmed petitioner's sentence on November 5, 2004. Thus, Blakely is applicable to petitioner's sentence in this case. Petitioner raised his Blakely claim on appeal to the Ohio Supreme Court.

Respondent objects to the Magistrate Judge's conclusion that petitioner's claim that his sentence violated Blakely is not procedurally defaulted See Supplemental Authority Supporting Objections, Doc. No. 25. Respondent appears to again argue that, although Blakely was not decided until after petitioner's attorney had filed a request to withdraw, petitioner nonetheless was required to raise his Blakely claim in the state appellate court, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in order to preserve such claim for federal habeas corpus review. Respondent has attached in support of this argument, a Report and Recommendation of Magistrate Judge Mertz in Furlow v. Moore, No. 3:06-cv-108 (S.D. Ohio, Western Division, Jan. 25, 2007). See Supplemental Authority Supporting Objections, Doc. No. 25. Magistrate Judge Mertz recommended in Furlow v. Moore, supra, that the Blakely claim be dismissed as procedurally defaulted because, although Blakely was not decided until after Furlow filed his appellate brief, Furlow failed to raise an issue under Apprendi v. New Jersey, supra, on direct appeal. See id., Exhibit to Supplemental Authority Supporting Objections, Doc. No. 25.

The recommendation in Furlow v. Moore, supra, is not binding on this Court. Further, as noted by the Magistrate Judge, petitioner's sentence did not violate Apprendi, as that case had been interpreted prior to the Supreme Court's decision in Blakely, as he was not sentenced beyond the statutory maximum term authorized for a conviction of rape under O.R.C. § 2907.02. See O.R.C. § 2929.14(A)(1). Thus, this Court agrees with the Magistrate Judge's conclusion that petitioner was not unreasonable in failing to anticipate the Supreme Court's decision in Blakely, and is not precluded from raising his Blakely claim in federal habeas corpus proceedings. See United States v. Burgess, 142 Fed.Appx. 232, 241, unpublished, 2005 WL 1515327 (6th Cir. June 22, 2005)(failure to predict United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) does not constitute ineffective assistance); Raines v. United States, 2006 WL 335695 (W.D.Mich., Feb. 13, 2006)(same).

Citing Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), respondent also again argues that petitioner cannot establish prejudice from any Blakely error because the trial court may re-impose the same sentence Objections, at 6-8. In support of this argument, respondent has attached, in addition to cases previously discussed, Shafer v. Wilson, 2007 WL 315760 (N.D.Ohio January 30, 2007), see Exhibit to Supplemental Authority Supporting Objections, Doc. No. 26, wherein Judge Gwin sustained the respondent's objection to Magistrate Judge's recommendation that the petition for a writ of habeas corpus be granted on a Blakely claim, by concluding that the Blakely error was harmless:

After the Ohio Supreme Court's decision in State v. Foster, sentencing judges are free to impose any sentence within the applicable statutory range without the need to make any specific judicial findings. See Foster, 845 N.E.2d at 496. Stated otherwise, because Ohio remedied its unconstitutional sentencing regime by making its guidelines advisory, there is no reason to believe the Petitioner would receive a more favorable sentence if the Court grants his habeas request for relief. In light of the fact that the Supreme Court has held that Blakely violations are not "structural" errors that require automatic reversal, we therefore agree with Respondent that no basis exists for granting the Petitioner's request for relief despite the fact that his re-sentencing clearly did violate Blakely.

Id. Respondent also refers to United States v. Satterfield, 2006 WL 2986449 (6th Cir. Oct. 18, 2006), an unpublished decision, wherein the United States Court of Appeals for the Sixth Circuit held the District Court's error in sentencing the defendant post-Blakely, but pre-Booker, to 36 months incarceration without consideration of the United States Sentencing Guidelines was harmless, because it was "well-below the advisory guideline range of 87-108 months." Id.

After careful consideration of the entire record, and for the reasons detailed by the Magistrate Judge, see Report and Recommendation at 17-21, this Court remains unpersuaded by respondent's argument that the Blakely error was harmless.

Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of those portions of the Report and Recommendation objected to by respondent. For all of the foregoing reasons, and for the reasons discussed in the Report and Recommendation, respondent's objections are OVERRULED The Report and Recommendation is ADOPTED and AFFIRMED. The petition for a writ of habeas is conditionally GRANTED on petitioner's claim that his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Petitioner sentence is VACATED, and petitioner must be released from incarceration unless the State of Ohio re-sentences him within ninety days.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

MARK R. ABEL, United States Magistrate Judge.

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The sole claim remaining for this Court's review is petitioner's assertion that his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Respondent contends that this claim is procedurally defaulted. Because the ineffective assistance of counsel may constitute cause for a procedural default, and because such claim had never been presented to the state courts, on May 26, 2006, proceedings were stayed pending petitioner's exhaustion of his ineffective assistance of counsel claim. On November 9, 2006, upon petitioner's notification of exhaustion, proceedings were reactivated. On November 22, 2006, respondent filed a supplemental return of writ. It remains the position of the respondent that petitioner's Blakely claim is procedurally defaulted. Respondent also contends that any Blakely error constituted harmless error. Doc. No. 21.

For the reasons that follow, the Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus conditionally be GRANTED, and that petitioner's sentence be VACATED and petitioner released from incarceration...