Brown v. Warden Lebanon Correctional Institution, No. 3:2007cv00022 - Document 15 (S.D. Ohio 2008)
Court Description: DECISION AND ENTRY ADOPTING AMENDED (DOC. 11 ) AND SUPPLEMENT TO AMENDED (DOC. 13 ) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AS SUPPLEMENTED HEREIN; PLAINTIFF-PETITIONERS OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. 12 AND 14 ) OVERRULED; JUDGMENT TO ENTER IN FAVOR OF DEFENDANT-RESPONDENT AND AGAINST PLAINTIFF-PETITIONER, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE; CERTIFICATE OF APPEALABILITY AND ANTICIPATED REQUEST FOR LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION ENTRY. Signed by Judge Walter H Rice on 2/04/2008. (sc1, )
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Brown v. Warden Lebanon Correctional Institution Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON JEFFERY A. BROWN, : Plaintiff-Petitioner, : vs. Case No. 3:07cv022 : ERNIE L. MOORE, WARDEN, LEBANON CORRECTIONAL INSTITUTION, JUDGE WALTER HERBERT RICE : Defendant-Respondent. DECISION AND ENTRY ADOPTING AMENDED (DOC. #11) AND SUPPLEMENT TO AMENDED (DOC. #13) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AS SUPPLEMENTED HEREIN; PLAINTIFF-PETITIONER S OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. #12 AND #14) OVERRULED; JUDGMENT TO ENTER IN FAVOR OF DEFENDANT-RESPONDENT AND AGAINST PLAINTIFF-PETITIONER, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE; CERTIFICATE OF APPEALABILITY AND ANTICIPATED REQUEST FOR LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION ENTRY Pursuant to the reasoning and citations of authority set forth by the United States Magistrate Judge in his Amended (Doc. #11) and Supplement to Amended (Doc. #13) Reports and Recommendations, and this Court s reasoning set forth below, as well as upon a thorough de novo review of this Court s file and the applicable law, this Court adopts said judicial filings in their entirety, as Dockets.Justia.com supplemented herein, concluding that grounds one and three were decided upon their merits by the state courts and, further, that neither of said decisions involve an unreasonable application of clearly established Supreme Court precedent and/or were the result of the state court s application of said Supreme Court precedent to the facts in an objectively unreasonable manner. Further, this Court concludes that the Plaintiff-Petitioner s second ground was procedurally defaulted. The Plaintiff-Petitioner s Objections to said judicial filings (Docs. #12 and #14) are overruled. Judgment will be ordered entered in favor of the Defendant-Respondent and against the Plaintiff-Petitioner, dismissing Plaintiff-Petitioner s Petition for Writ of Habeas Corpus, with prejudice. In Humphress v. United States, 398 F.3d 855 (6th Cir.), cert. denied, 546 U.S. 885 (2005), the Sixth Circuit held that claims challenging a sentence, on the basis that the sentence was contrary to United States v. Booker, 543 U.S. 220 (2005), could not be raised during collateral review. Therein, the Sixth Circuit noted that the petitioner had initially based his challenge to his sentence on Blakely v. Washington, 542 U.S. 296 (2004), but that petitioner s challenge became governed by Booker, after the Supreme Court had issued its decision therein. 398 F.3d at 857. Thus, the Sixth Circuit has held that collateral review of claims under both Booker and Blakely is not permitted by Humphress. See Swain v. United States, 2005 WL 3065969 (6th Cir. 2005). Accordingly, this Court concludes that Plaintiff-Petitioner s Blakely claim cannot be raised on collateral review. -2- Given that the Court s rulings herein are not be debatable among jurists of reason and, further, given that any appeal from the decision rendered herein would be objectively frivolous, this Court denies both a Certificate of Appealability and an anticipated request for leave to appeal in forma pauperis. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. /s/ Walter Herbert Rice February 4, 2008 WALTER HERBERT RICE UNITED STATES DISTRICT JUDGE Copies to: Jeffery A. Brown, Pro Se Hilda Rosenberg, Esq. Chief Magistrate Judge Michael R. Merz -3-
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