Bennett v. Warden, Lebanon Correctional Institution

Filing 29

ORDER by Judge William O. Bertlesman ADOPTING 24 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by James L. Bennett. IT IS ORDERED that: (1) The 28 OBJECTION to 24 Report and Recommendations are OVERRULED; and that the Report and Recommendation of the Magistrate Judge be, and it is, hereby ADOPTED as the findings of fact and conclusions of law of the court. The Court ISSUES a conditional writ of habeas corpus on Ground Two of Petitioner's petition. The State of Ohio shall release Petitioner from custody unless, WITHIN NINETY (90) DAYS AFTER ISSUANCE OF THE WRIT, the State of Ohio vacates the inappropriate multiple convictions and resentences Petitioner in accord with this order; (2) Petitioner 9;s 26 MOTION for Extension of Time be, and is hereby, GRANTED NUNC PRO TUNC; (3) Petitioner's 28 Motion for Certificate of Appealibility be, and is hereby DENIED as to claims alleged in Grounds One, Three, Four, and Six through Nine of the petition; and (4) A separate Judgment shall enter concurrently herewith. (Attachments: # 1 Certified Mail Receipt) (eh1)

Bennett v. Warden, Lebanon Correctional Institution

Doc. 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION CIVIL ACTION NO. 2009-cv-00622 (WOB) JAMES L. BENNETT VS. WARDEN, Lebanon Correctional Institute ORDER PETITIONER

RESPONDENT

This matter is before the court upon the Report and Recommendation of the United States Magistrate Judge (Doc. 24), and having considered de novo those objections filed thereto by petitioner (Doc. 28), and the court being sufficiently advised, IT IS ORDERED that: (1) The objections to the Report and Recommendation of the

Magistrate Judge be, and are, hereby OVERRULED; and that the Report and Recommendation of the Magistrate Judge be, and it is, hereby ADOPTED as the findings of fact and conclusions of law of the court. The Court ISSUES a conditional writ of habeas corpus

on Ground Two of Petitioner's petition, as well as the ineffective assistance of counsel claims alleged in Grounds Four and Five pertaining to establishing "cause" for the procedural default of the claim alleged in Ground Two in the state courts. The State of Ohio shall release Petitioner from custody unless, WITHIN NINETY (90) DAYS AFTER ISSUANCE OF THE WRIT, the State of Ohio vacates the inappropriate multiple convictions and resentences Petitioner in accord with this Order;

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(2) Petitioner's motion for extension of time (Doc. 26) be, and is hereby, GRANTED NUNC PRO TUNC; (3) For the reasons stated in the Report and Recommendation, Petitioner's motion for a certificate of appealability be, and is hereby, DENIED as to claims alleged in Grounds One, Three, Four and Six through Nine of the petition; and (4) A separate Judgment shall enter concurrently herewith.

This 15th day of March, 2011.