Opinion
CASE NO. 2:08-CV-417.
March 19, 2010
ORDER
On November 3, 2009, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus be dismissed. Report and Recommendation, Doc. No. 16. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. Objection, Doc. No. 17. For the reasons that follow, petitioner's objections are overruled.
Petitioner objects to the Magistrate Judge's recommendation of dismissal of claims one and three as without merit. In claim one, petitioner contends that the trial court's imposition of a maximum term of eight years incarceration on his felonious assault conviction violated Blakely v. Washington, 542 U.S. 296 (2004). Plaintiffs pecifically argues that, in order to impose such sentence, the trial court must have found that petitioner had committed the worst form of the offense or posed the greatest likelihood of committing future crimes. See O.R.C. § 2929.14(C). In claim three, petitioner asserts that his attorneys performed in a constitutionally ineffective manner by failing to raise a Blakely objection at sentencing or on direct appeal. See Objections.
As noted in the Report and Recommendation, p. 22, petitioner withdrew claim two. See Traverse, p. 3.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Upon review of the entire record, and for the reasons detailed in the Magistrate Judge's Report and Recommendation, this Court likewise concludes that the trial court, in imposing sentence, did not make factual findings beyond those implicit in the jury's finding of guilt or based on petitioner's prior criminal record, i.e., permissible factors under Blakely. See Blakely, supra, 542 U.S. at 303-04; Transcript, at 532-38. See also Report and Recommendation, pp. 19-21. Counsel was therefore not ineffective in failing to raise a Blakely objection either at sentencing or on appeal.
Petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT.