Opinion
CASE NO. 2:09-CV-528.
August 4, 2009
OPINION AND ORDER
On July 2, 2009, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts recommending that the instant petition for a writ of habeas corpus be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
As her sole claim for habeas corpus relief, petitioner asserts that the trial court violated due process and the Ex Post Facto Clause by imposing more than minimum consecutive terms of incarceration pursuant to a remand by the state appellate court under State v. Foster, 109 Ohio St.3d 1 (2006). Petitioner objects to the Magistrate Judge's rejection of this claim on the merits. She again argues that she was denied notice and fair warning of the potential sentence she faced, and that Foster retroactively enhanced her penalty by granting her trial judge the discretion to impose any sentence within the statutory range for the offenses of conviction, and consecutive terms of incarceration, without engaging in judicial fact finding. See Objections.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. This Court likewise concludes, for the reasons detailed in the Magistrate Judge's Report and Recommendation, that petitioner's claim fails to warrant federal habeas corpus relief. Petitioner's objections therefore are OVERRULED.
Petitioner also requests the Court to grant a certificate of appealability, and in forma pauperis status on appeal. See Objections. This Court will consider petitioner's requests upon the filing of a notice of appeal and petitioner's appropriate submission of an affidavit of indigency.
The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT.