Camp v. Sheldon

Full title: WILLIAM CAMP, Petitioner, v. ED SHELDON, Warden, Respondent

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

Date published: Jul 28, 2009

CASE NO. 2:09-CV-399 (S.D. Ohio Jul. 28, 2009)

Opinion

CASE NO. 2:09-CV-399.

July 28, 2009

OPINION AND ORDER

GEORGE SMITH, District Judge

On June 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 pursuant to 28 U.S.C. § 2254 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.

Petitioner objects to all of the Magistrate Judge's recommendations. Petitioner complains that the Magistrate Judge recommended dismissal of his habeas corpus petition under Rule 4 without requiring respondent to file a Return of Writ. He further objects to the Magistrate Judge's suggestion that his claim under Blakely v. Washington, 542 U.S. 296 (2004), may be procedurally defaulted. He contends that the trial court's imposition of consecutive sentences was constitutionally prohibited despite the United States Supreme Court's decision in Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 714-15 (2009).

Pursuant to 28 U.S.C. § 636(b), this court has conducted a de novo review of the Magistrate Judge's Report and Recommendation. For the reasons discussed therein, petitioner's arguments are not persuasive. Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts provides:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

Such are the circumstances here. As discussed by the Magistrate Judge, the United States Supreme Court in Oregon v. Ice, supra, held that use of factual findings to justify imposition of consecutive sentences is not constitutionally prohibited. Therefore, regardless of any procedural default, petitioner's claim is without merit. To the extent that petitioner may be raising an issue regarding the violation of state law, such claim fails to present an issue warranting federal habeas corpus relief. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6^th Cir. 1988).

Therefore, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.