Opinion
CASE NO. 2:08-CV-1152.
May 28, 2010
OPINION AND ORDER
On May 3, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Doc. No. 15. This matter is now before the Court on the objections to that Report and Recommendation.
Petitioner objects to the Magistrate Judge's recommendation of dismissal of his sole claim for federal habeas corpus relief, i.e., that the trial court's imposition of consecutive terms of incarceration after the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1 (2006), violates due process. Plaintiff again raises all of the same arguments that he previously presented. He contends that neither Oregon v. Ice, 129 S.Ct. 711 (2009), nor Hooks v. Sheets, ___ F.3d ___, 2010 WL 1655578 (6th Cir. April 27, 2010), preclude him from obtaining relief on this claim.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons already detailed in the Magistrate Judge's Report and Recommendation, this Court is not persuaded by petitioner's arguments. Petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED.
Petitioner also requests a certificate of appealability and leave to proceed on appeal in forma pauperis. See Objections.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make such a showing, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'"Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estalle, 463 U.S. 880, 893 (1983)). This Court is persuaded that reasonable jurists could debate whether petitioner's claim should have been resolved differently. Therefore, petitioner's request for a certificate of appealability is GRANTED. The Court CERTIFIES the following issue for appeal:
Did the trial court's imposition of consecutive terms of incarceration after the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St. 3d 1 (2006), violate due process?
Petitioner has also asked for leave to proceed on appeal in forma pauperis, but has not provided any financial information in support of that request. Petitioner shall have 21 days to file a motion for leave to proceed in forma pauperis with appropriate documentation. Petitioner is advised that his failure to do so may result in the dismissal of his appeal. The Clerk is DIRECTED to provide petitioner the appropriate form.
This action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT.