Schweitzer v. Williams, Case No. 3:08 CV 2250.

Decision Date19 February 2010
Docket NumberCase No. 3:08 CV 2250.
Citation695 F. Supp.2d 646
PartiesNicholas SCHWEITZER, Petitioner, v. Jesse WILLIAMS, Respondent.
CourtU.S. District Court — Northern District of Ohio

Jacob A. Cairns, Upper Arlington, OH, for Petitioner.

Erin C. Reed, Columbus, OH, for Respondent.

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

INTRODUCTION

Petitioner Nicholas Schweitzer filed a Petition for a Writ of Habeas Corpus (Doc. No. 1). The case was referred to United States Magistrate Judge Greg White for a Report and Recommendation (R & R) pursuant to Local Rule 72.2(b)(2). The Magistrate Judge recommended the Petition be dismissed (Doc. No. 9).

Petitioner filed an Objection (Doc. No. 10) to the R & R, reasserting four grounds for relief: (1) The Ohio court of appeals acted contrary to clearly established federal law in holding that the retroactive elimination of the statutory elements of a criminal offense did not violate Petitioner's rights under the United States Constitution; (2) the decision of the Ohio court of appeals in Petitioner's case, and the decision of the Ohio Supreme Court in Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), on which the court of appeals relied, were objectively unreasonable applications of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (3) the Ohio court of appeals applied Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), in an objectively unreasonable manner in upholding the retroactive application of Foster to Petitioner's case; and (4) the Ohio court of appeals rendered an objectively unreasonable decision in refusing to extend the direct application of the Ex Post Facto Clause to a context where it clearly should have been controlling.

In accordance with Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) and 28 U.S.C. § 636(b)(1)(B) & (C), this Court has made a de novo determination of the Magistrate's findings. For the reasons below, the Court adopts the Magistrate's R & R in its entirety and denies the petition.

BACKGROUND

The R & R accurately recites the relevant factual and procedural background from the record (Doc. No. 9, pp. 1-7). In 2004, Petitioner was sentenced to eight years for aggravated burglary and seven years for felonious assault, to be served consecutively, as well as eleven months for possession of criminal tools, to be served concurrently. In 2006, in light of the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), Petitioner was re-sentenced to these same terms of incarceration. Petitioner now argues the re-sentencing was erroneous.

ANALYSIS

Under 28 U.S.C. § 2254(d)(1), a federal habeas court may grant the writ only if a state court arrives at a conclusion that is "contrary to" or an "unreasonable application of" clearly established federal law. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Petitioner's Objection to the R & R merely rehashes his initial arguments. The R & R thoroughly analyzed Petitioner's claims and correctly concluded that he did not meet the standards for habeas relief.

This Court further notes that Petitioner's arguments have previously been rejected by federal courts reviewing habeas claims by Ohio prisoners. See, e.g., Newsome v. Brunsman, No. 1:08 CV 1938, 2010 WL 319792, at *2-3 (N.D.Ohio Jan. 20, 2010) (rejecting a claim that Foster altered substantial rights in violation of ex post facto prohibitions); Ross v. Kelley, 662 F.Supp.2d 903, 928-39 (N.D.Ohio 2009) (rejecting objections identical to Petitioner's arguments here); Keith v. Voorhies, No. 1:06 CV 2360, 2009 WL 185765, at *11 (N.D.Ohio Jan. 23, 2009) (finding the remedy provided in Foster very similar to the remedy provided in Booker, and rejecting an ex post facto challenge to the retroactive application of Foster).

CONCLUSION

This Court adopts the Magistrate's R & R and denies the Petition for Writ of Habeas Corpus (Doc. No. 1).

Further, under 28 U.S.C. §§ 1915(a) and 2253(c), this Court certifies that an appeal of this action could not be taken in good faith and that Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, this Court declines to issue a certificate of appealability.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

GREG WHITE, United States Magistrate Judge.

Petitioner, Nicholas Schweitzer ("Schweitzer"), through counsel, challenges the constitutionality of his sentence in the case of State v. Schweitzer, Auglaize County Court of Common Pleas Case No. 2004-CR-57. Schweitzer filed his Petition for Writ of Habeas Corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254 on September 23, 2008. On February 5, 2009, Warden Jesse Williams ("Respondent") filed his Answer/Return of Writ. (Doc. No. 7.) Schweitzer filed a Traverse on February 20, 2009. (Doc. No. 8.) This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. For reasons set forth in detail below, it is recommended that Schweitzer's Petition be denied.

I. Procedural History
A. Conviction

In May 2004, an Auglaize County Grand Jury charged Schweitzer with one count of aggravated burglary, one count of felonious assault, two counts of attempted murder, and one count of possession of criminal tools. (Resp. Exh. 1.) Schweitzer filed a motion claiming he was incompetent to stand trial and not guilty by reason of insanity. (Resp. Exh. 9, ¶ 4.) This motion was withdrawn after the court received a Forensic Psychological Report which noted that Schweitzer was malingering in an attempt to feign mental illness. Id.

On October 13, 2004, Schweitzer, through counsel, entered a plea of guilty to aggravated burglary, felonious assault and possession of criminal tools. (Resp. Exh. 2.) The state dismissed the remaining counts. Id. In the plea negotiation, the state advised that it was recommending a prison term of fifteen years. (Resp. Exh. 23, Cert. Opp. Appendix-1.) On December 10, 2004, Schweitzer was sentenced to eight years for aggravated burglary, seven years for felonious assault, and eleven months for possession of criminal tools. (Resp. Exh. 3.) The aggravated burglary and felonious assault sentences were ordered to run consecutive to each other, but concurrent with the criminal tool sentence, for an aggregate prison term of fifteen years. Id.

B. Direct Appeal

Schweitzer, through counsel, filed a timely Notice of Appeal with the Court of Appeals for the Third District ("state appellate court") raising the following assignments of error:

1. The trial court erred and violated the Appellant-Defendant's right to due process of law by imposing a sentence based upon the court creating its own psychological opinion as to the effect of the Appellant-Defendant's diagnosed mental illness, borderline personality disorder, upon his actions in committing the crimes.
2. The trial court erred by finding that the failure to show genuine remorse was a significant factor that the offender would likely commit a future crime, when uncontroverted expert testimony based on extensive psychological testing showed that the Appellant suffered from borderline personality disorder, a mental illness whose symptoms, as well as the treating medications, result in the patient showing a lack of remorse.
3. The trial court erred by finding that pursuant to O.R.C. § 2929.12, the likely to commit future crimes factors outweigh the factors indicating that the offender is not likely to commit future crimes.
4. The trial court erred by sentencing the Defendant to consecutive sentences in that the O.R.C. § 2929.14(E) category findings are not based on reasons supported by factual evidence in the record and are not closely related to the category findings.
5. The trial court erred by denying the Appellant-Defendant's due process right to a fair sentencing hearing where he was prevented from presenting information relevant to the imposition of sentence by a court that had displayed an inflexible predisposition to consecutive sentences.

(Resp. Exh. 4.) Schweitzer, with approval of the appellate court, filed a supplemental brief on sentencing issues in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) raising the following assignment of error:

1. The sentences imposed upon Appellant must be vacated because they were rendered in violation of Appellant's Sixth Amendment right to trial by jury and Article I § 10 of the Ohio Constitution. Specifically, sentencing Appellant to more than the minimum sentence on charges of aggravated burglary, felonious assault and possessing criminal tools violates the United States and Ohio Constitutions. Sentencing Appellant to consecutive sentences on the charges of aggravated burglary and felonious assault violate the same United States and Ohio Constitutions.

(Resp. Exh. 7.) On October 24, 2005, the state appellate court affirmed. (Resp. Exh. 9.)

On November 29, 2005, Schweitzer, through counsel, filed a Notice of Appeal to the Ohio Supreme Court raising the following propositions of law:

1. The Sixth and Fourteenth Amendments to the Federal Constitution forbid the imposition of a non-minimum sentence under § 2929.14(D) upon a first time offender where the required findings have not been proven beyond a reasonable doubt to a jury and have not been admitted to by the defendant.
2. The Sixth and Fourteenth Amendments to the Federal Constitution forbid the imposition of consecutive sentences under § 2929.14(E) where the required findings have not been proven beyond a reasonable doubt to a jury and have not been admitted to by the defendant.
3. Under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution and Article I § 10 of the Ohio Constitution, evidence of a diagnosed mental illness may only be utilized as an aggravating factor in criminal sentencing to the extent that it relates to the future dangerousness of the offender. A Court may
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