Long v. Warden, Trumbull Correctional Institution

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 10-6-10. (ga)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LESLIE LONG, Petitioner, v. BENNIE KELLY, WARDEN, Respondent. OPINION AND ORDER On September 30, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus be dismissed. Report and Recommendation, Doc. No. 12. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation, a request for a certificate of appealability and an application for leave to proceed in forma pauperis on appeal. See Doc. No. 13. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Petitioner's request for a certificate of appealability and request to proceed in forma pauperis on appeal are GRANTED. OBJECTIONS TO REPORT AND RECOMMENDATION As her sole ground for habeas corpus relief, petitioner asserts that she was sentenced in violation of due process and the Ex Post Facto Clause when the trial court imposed non-minimum terms of incarceration subsequent to the Ohio Supreme Court's decision in State v. Foster, 129 Ohio St.3d 1 (2006)(excising provisions of Ohio's sentencing statutes determined to be unconstitutional CASE NO. 2:09-CV-227 JUDGE SMITH MAGISTRATE JUDGE KING

under Blakely v. Washington, 542 U.S. 296 (2004)). The Magistrate Judge recommended dismissal of this claim on the merits. In her objections to the Magistrate Judge's recommendation, petitioner raises all the same arguments she previously presented. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons detailed in the Magistrate Judge's Report and Recommendation, this Court is not persuaded by petitioner's arguments. Therefore, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. The Clerk shall enter FINAL JUDGMENT dismissing this action. Petitioner requests a certificate of appealability. 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). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484. To make a substantial showing of the denial of a constitutional right, 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.'" Barefoot, 463 U.S ., at 893, and n. 4.... Id. The Court is persuaded that reasonable jurists could debate whether the claim asserted in this action should have been resolved differently. Therefore, petitioner's request for a certificate of appealability, Doc. No. 23, is GRANTED. The following issue is CERTIFIED for appeal: Was petitioner denied due process and sentenced in violation of the Ex Post Facto Clause? Finally, petitioner has asked for leave to proceed on appeal in forma pauperis. However, pet it io ner has not provided the required financial affidavit. Petitioner's request in this regard is 2

therefore DENIED without prejudice to renewal upon submission of the required financial affidavit.

IT IS SO ORDERED.

/s/ George C. Smith GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT

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