Smith v. Petkovich (562 F. Supp. 2d 912, 2008)

Citations

562 F. Supp. 2d 912

Full opinion text

MEMORANDUM OPINION AND ORDER

LESLEY WELLS, District Judge.

On 1 March 2006, Petitioner Paul Smith (“Mr.Smith”) filed this timely habeas, pursuant to 29 U.S.C. § 2254, setting forth the following three grounds for relief:

A. Ground one: Mr. Smith was denied his right to confrontation of witnesses under the Sixth Amendment because the trial court permitted testimony about the out-of-court statements of a non-testifying person.

B. Ground two: Mr. Smith received a ten-year sentencing enhancement as a Repeat violent Offender pursuant to O.R.C. 2929.14 and 2941.145, which are violative of the Sixth Amendment because they permit imposition of a sentence beyond the normal statutory maximum on the basis of findings made b y a trial judge alone and not submitted to a jury to be proven beyond a reasonable doubt; moreover the trial court denied Mr. Smith due process under the Fourteenth Amendment because the trial court did not make the findings required by the statute, nor was there sufficient evidence to support the findings in any event.

C. Ground three: Mr. Smith was denied his right to due process and trial by jury when the prosecutor argued beyond the evidence in closing argument, made personal attacks on defense counsel, and improperly commented on the Defendant’s failure to present evidence at trial. (Doc. 1). Respondent filed a return of writ on 1 June 2006 (Doc. 7), and the matter was assigned to Magistrate Judge Patricia Hemann for a Report and Recommendation (“R & R”).

In her careful and thorough R & R, Magistrate. Hemann recommends the Court: grant Mr. Smith’s petition with respect to the claim in his second ground for relief that his independent, nine-year sentence, as a repeat offender pursuant to § 2929.14(D)(2), was contrary to clearly established federal law; overturn Mr. Smith’s nine-year sentence as a repeat violent offender, giving the state the option of a new sentencing trial; and, overrule all other assignments of error. (Doc. 8, pp. 38-39).

Respondent filed objections to Magistrate Hemann’s recommendation on 31 July 2006, arguing first, that no constitutional error occurred in the trial Court’s judicial fact-finding pursuant to § 2929.14 because federal law was not clearly established. (Doc. 10). Further, the Respondent maintains the error was harmless. Id. On 30 January 2007, the Respondent also submitted an updated authority—Shafer v. Wilson, 2007 WL 315760 (N.D.Ohio Jan.30 2007)—in support of its position that a Blakely error is harmless in light of the Ohio Supreme Court decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). (Doc. 11).

As no objections have been raised to the remainder of the R & R, the Court must assume that the parties are satisfied with all aspects of the R & R but the Blakely error contained in the repeat violent offender sentence. Any review by this Court, beyond the Blakely error dispute, would be a duplicative and inefficient use of the Court’s limited resources. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, “[t]he judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.”

For the reasons set forth below, the Court adopts in its entirety Magistrate Judge Hemann’s recommendations.

BACKGROUND

The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the R & R to which the parties have made an objection. 28 U.S.C. § 636(b)(1). Moreover, the factual findings of a state court are presumed to be correct. A federal court may only diverge from a state court’s factual findings if the petitioner shows by clear and convincing evidence that the findings are erroneous. 28 U.S.C. § 2254(e)(1).

The Court of Appeals, Eighth Appellate District, Cuyahoga County, Ohio delineated the facts of this case on direct appeal. Because Mr. Smith has not rebutted these factual findings by clear and convincing evidence, the Court presumes they are correct and, accordingly, recites the following facts:

On November 19, 1996, defendant and co-defendant Iris Wilson were indicted for felonious assault with firearm specifications pursuant to R.C. 2941.141 and 2941.145. The state additionally charged defendant with repeat violent offender specifications pursuant to R.C. 2929.01(EE) which alleged that he had been convicted of aggravated battery in Florida in 1988 and 1989.

The matter proceeded to trial in December 1996. Within this proceeding, the state dismissed the firearm specification pursuant to R.C. 2941.141, and also dismissed its case against Iris Wilson. Defendant was eventually convicted of felonious assault and the remaining firearm specification, and this court affirmed the conviction in State v. Smith (June 18, 1998), Cuyahoga App. No. 72089. The Supreme Court of Ohio denied defendant leave for further appeal. The Supreme Court of the United States granted certiorari, however, and remanded the matter back to this court for further consideration in light of Lilly v. Virginia (1999), 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). This court affirmed defendant’s conviction upon further consideration. See State v. Smith (Dec. 9, 1999), Cuyahoga App. No. 72089.

On September 13, 2002, the United States District Court for the Northern District of Ohio, Eastern Division, granted defendant’s petition for habeas corpus, concluding that prejudicial error occurred in connection with the admission of Iris Wilson’s written statement.

The state’s retrial of this matter commenced on January 6, 2003, before a jury. At this time, the state and defense counsel stipulated that the repeat violent offender specifications would be bifurcated and tried to the court.

The state presented the testimony of Kenyatta Wells, and Cleveland Police Officers Kennedy Jones, Xavier Lynch, Robert Minor, Thomas Lucey, Kevin Freeman, and Thomas Wheeler.

Kenyatta Wells testified that on August 1, 1996, he was with Mock Rodgers, a.k.a “Bootsie,” and Chantell Jones at a recording studio located at East 55th Street and Marginal Road. They went to the Calypso Bar to get something to eat. As they were returning to the studio in Rodgers’ green pickup truck, they stopped at a light on DuPont Avenue. A black, four-door vehicle pulled up and the woman driving the car said, “Hey Bootsie, somebody wants to holler at you.” Wells, the driver of Rodgers’ pickup, proceeded to the next light. At this point, the same car approached a second time, and the female driver repeated, “Hey Bootsie, somebody wants to holler at you.” The passenger then got out of the black ear and ran over to the passenger side of the pickup truck. He said, “What’s up, mother f* * * * then placed his hand into the truck and started shooting. Wells drove off and the black vehicle followed.

Wells testified that, as they sped away, Rodgers screamed, “I am hit, I am hit,” and identified the assailants as Paul and Iris. Wells drove the truck to the Finast Supermarket located at Superior and Lakeview. Wells realized that he had been shot in the leg, and was taken away by ambulance before speaking with police. Rodgers and Jones did speak with the police, however. Wells further testified that he spent four days in the hospital. Thereafter, on August 9, 1996, he and Rodgers went to the police station and Wells made a statement which provided in relevant part as follows:

“I was stopped by the traffic light in the center lane. At this moment the black Park Avenue 4 dr. pulled up on the right of the truck[.] At this moment the female by the name of Iris rolled down her window and stated that someone wanted to talk to Bootsy (sic). I then asked Bootsy (sic) if he knew who the female was as I was pulling the vehicle up. The car then pulled up some more and the female driver stated again that someone wanted to talk to him. He then notice (sic) that the driver was the female name (sic) Iris. At this moment someone exit (sic) the auto on the passenger side and started to walk up on the passenger side of the truck and stated, “What’s up mother f* * * * * ” and then started to shoot into the truck. At this moment my friends started saying take off take off. I then drove off going to the Finast Store located at Lakeview and Superior.”

“Q-Do you know who the shooter is?”

“A-Yes, Paul Smith.”

Wells identified defendant in court. He testified that he had seen defendant many times at Rodgers’ house, that he was present when defendant and Rodgers’ discussed business matters concerning their real estate dealings, and that he was aware of problems between the two men. He further testified that he knew Iris, the driver of the black car, through the father of her baby.

On cross-examination, Wells acknowledged that in the initial portion of his statement, he said that “someone” shot him. He also claimed that in his previous testimony, he had mistakenly said that he did not know Iris and had never seen her before. He also stated that he could not recall his previous testimony in which he indicated that he did not recognize Iris and Paul after the shooting and that Rodgers told him the identity of the assailants. Cleveland Police Officer Xavier Lynch testified that he was working as a security guard at the Finast Supermarket located at 11906 Superior in Cleveland when Wells, Rodgers and a female rushed in and exclaimed that Wells had been shot. Officer Lynch called for police and EMS to come to the store. Rodgers wanted to get away from the front of the store with its glass windows and said, “The guy is going to kill me.” After the police arrived, however, he provided the police with the name of the assailant, and a description of him. He also reported that he was with a woman named Iris and that they were driving a black Park Avenue.

Cleveland Police Officer Kennedy Jones testified that at 11:23 p.m., on August 1, 1996, he received a call to respond to the Finast Supermarket at East 119th Street and Superior. Wells had been transported to the hospital when Officer Jones arrived, but Chantell Jones and Rodgers said that a Jamaican named Paul shot Wells at East 110th Street near DuPont.

Robert Minor, formerly a crime scene investigator with the scientific investigative unit of the Cleveland Police Department, testified that he processed Rodgers’ pickup truck for evidence. Minor photographed the inside and outside of the vehicle. After lifting a rag from the floor of the driver’s seat, he observed blood spatter on the rug, and a hole in the floor mat. He also located a pellet on the floor of the driver’s side and a spent shell casing on the floor of the passenger’s side. Minor further testified that he observed a bullet hole in the exterior of the vehicle, on the passenger side, and the passenger’s side window was shattered.

Thomas Lucey testified that in August 1996, he worked in the forensic laboratory unit of the Cleveland Police Department. And that he examined the spent bullet slug and copper bullet jacket, which were recovered in this matter. According to Lucey, the slug and the copper jacket both came from a .45 caliber weapon.

Cleveland Police Officer Kevin Freeman testified that, based upon information he received in this matter, he was looking for a black man named Paul, and his girlfriend named Iris Wilson. Freeman testified that he knew Wilson had been involved with Kenneth Potts and he stopped her near Potts’ house. At this time, Wilson provided him with a driver’s license with the name “Renee Davis.” Freeman knew that this was not the correct name and Iris was later arrested.

Cleveland Police Detective Thomas Wheeler testified that he was assigned to do follow-up investigation in the matter. The initial reports of the incident indicated that the assailant was named “Paul,” and did not list a last name. Later, on August 9, 1996, Wheeler met with Rodgers and Wells. Wells provided a narrative of what had happened and Wheeler typed it. Rodgers did not make a statement.

Following the presentation of the state’s case, defendant rested.

The jury convicted defendant of felonious assault and the firearm specification, and the trial court set the repeat violent offender specifications for hearing on February 14, 2003. Defendant’s trial counsel subsequently stipulated to the specifications and the trial court found defendant guilty of both repeat violent offender specifications.

On February 28, 2003, the court held a sentencing hearing and sentenced defendant to consecutive terms of three years for the firearm specification, eight years for the felonious assault charge, and nine years for the remaining specifications.

State v. Smith, 2004 WL 1472081 (Ohio App.8th, July 1, 2004).

The trial court made the following findings during the course of the Petitioner’s 28 February 2003 sentencing hearing:

Obviously, this Court now has heard the testimony of the — regarding the facts of this case twice, back in 1996, as well as most recently a month ago.

This Court has the pre-sentence investigative report, which indicates the defendant does have a criminal history dating back to '87, where he had an aggravated assault with a deadly weapon.

In 1988, he was charged and convicted of smuggling marijuana into a jail. ^

In 1989, he was convicted of aggravated assault, with a count of battery, in which the defendant had a homemade knife or shank that he used to cause injuries to another at a correctional institution in Florida.

Then, in 1993, he made his way to Cleveland and was indicted for forgery, with two counts of uttering, two counts of possession of criminal tools.

When this case was originally indicted, the defendant was further indicted for aggravated murder, in which two victims died. The witnesses were not available, and that trial could not have gone forward. That case was dismissed, although it’s certainly subject to re-indictment.

Under 2929.14,1 believe it’s, (D)(2)(a), it states that if the Court finds that the repeat violent offender, in committing the offense, caused any physical harm that carried a substantial risk of death to a person, the Court shall impose the longest prison term from the range of terms authorized for the offense under Division A of the this section.

In this case, the defendant engaged in a car chase, pulled over not once but twice, and the second time he got out of his vehicle, approached the passenger’s side of the victim’s vehicle and fired several shots into the vehicle, one of which did strike the defendant.

Based on the facts of this case, as well as the pre-sentence investigative report, the Court believes that any sentence [illegible] would deviate from the prior sentence [illegible] inadequate to punish the offender and protect the public from future crime.

This was a serious case. There was a substantial risk of death. Physical harm was caused. It would be demeaning to the seriousness of the offense to hold otherwise.

With respect to the felonious assault, the Court is going to impose the maximum sentence of eight years, with the three-year firearm specification, which must be served prior to and consecutive to the eight-year sentence.

With respect to the repeat violent offender specification, the Court will impose a nine-year sentence, which will be served consecutive.

Tr. At 336-38.

On 21 May 2003 the Court docketed Mr. Smith’s sentence of “three years on the firearm specification to be served prior to and consecutive with time of eight-years on the base charge and given nine-years on the repeat violent offender specification to be served consecutive to the sentence for a total confinement of twenty years.”

LAW AND ARGUMENT

A. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act, (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 26, 1996) are controlling here as the instant petition was filed after the Act’s effective date. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA provides that federal courts cannot grant a habeas petition for any claim that the state court adjudicated on the merits unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). See also Miller v. Francis, 269 F.3d 609, 614 (6th Cir.2001).

The United States Supreme Court outlined the proper application of § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To justify a grant of habeas relief under the “contrary to” clause, “a federal court must find a violation of law clearly established by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision.” Miller, 269 F.3d at 614 (quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Meanwhile, “under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 1523. The Sixth Circuit holds that, even if a federal court could determine that a state court incorrectly applied federal law, the court still could not grant relief unless it also finds that the state court ruling was unreasonable. Simpson v. Jones, 238 F.3d 399, 405 (6th Cir.2000).

B. Consideration of Mr. Smith’s Blakely claim.

The only question under consideration is whether the court imposed independent nine-year sentence on Mr. Smith as a repeat violent offender under O.R.C. §§ 2929.14 and 2929.12, was a Blakely violation because the sentencing court engaged in judicial fact-finding to impose the separate sentence.

The Blakely claim is clearly cognizable in this instance. The Sixth Circuit will not apply Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), retroactively to cases on collateral review. See Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir.2005). Mr. Smith’s conviction became final on direct review on 1 March 2005, after Blakely was decided.

Mr. Smith is entitled to habeas relief if his independent sentence as a repeat violent offender pursuant to R.C. §§ 2929.14(D)(2)(b) and 2929.12 was contrary to, or an unreasonable application of, clearly established federal law, as established by the United States Supreme Court. 28 U.S.C. § 2254(d). In Blakely, the United States Supreme Court held that a statutory sentencing scheme that allows a judge to enhance a sentence based on factual findings not found by a jury, admitted by the defendant, or reflected in the jury verdict is unconstitutional. Blakely, 542 U.S. at 303, 124 S.Ct. 2531. As the Ohio Supreme Court determined in Foster, certain provisions of Ohio’s sentencing guidelines- — including R.C. § 2929.14(D)(2)(b) — permitted sentencing enhancements based on judicial fact-finding, and thus violate Blakely.

As stated at the time of Mr. Smith’s sentencing Section 2929.14(D)(2)(b) of the Ohio Revised Code allowed, that

(b) If the court imposing a prison term on a repeat violent offender imposes the longest prison term from the range of terms authorized for the offense under division (A) of this section, the court may impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if the court finds that both of the following apply with respect to the prison terms imposed on the offender pursuant to division (D)(2)(a) of this section and, if applicable, divisions (D)(1) and (3) of this section:

(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.

(ii) The terms so imposed are demeaning to the seriousness of the offense because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender’s conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender’s conduct is less serious than conduct normally constituting the offense.

Once the trial court sentenced Mr. Smith to the maximum eight year sentence of imprisonment for felonious assault, it was then allowed to impose an independent additional sentence if the Petitioner was a repeat violent offender and if the court found pursuant to the factors in O.R.C. § 2929.12 that the defendant would be a likely recidivist and that the crime was unusually serious. At a hearing on 14 February 2003, Mr. Smith stipulated to the truth of the facts necessary to allow the court to find that he was a repeat violent offender.

However, to make the determination that the crime was more serious than normal, the judge had to find at least one of the following pursuant to § 2929.12(B):

(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender’s conduct is more serious than conduct normally constituting the offense:

(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.

(4) The offender’s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.

(5) The offender’s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.

(6) The offender’s relationship with the victim facilitated the offense.

(7) The offender committed the offense for hire or as a part of an organized criminal activity.

(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.

(9) If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.

The Magistrate Judge concluded that “[a]n additional sentence based on these judicial findings of fact is unequivocally barred by the holdings in Apprendi.” (Doc. 8, p. 33). In its objections, the Respondent maintains to the contrary, that “[i]n light of the uncertainty, confusion and conflicting opinions surrounding Blakely issues, the Court of Appeals decision simply cannot be considered an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” (Doc. 10, p. 6).

The Court finds the Magistrate Judge has the better of the arguments. The holding in Apprendi established that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 489, 120 S.Ct. 2348. Mr. Smith received the statutory maximum of eight years for felonious assault. That the trial court then resorted to judicial fact-finding to establish a separate additional sentence of nine years predicated on the Petitioner’s repeat offender status and the assignment of the eight year statutory maximum for felonious assault, clearly marks the additional sentence as unconstitutional under Apprendi. Accordingly, Mr. Smith’s independent nine-year sentence is contrary to clearly established federal law and he is entitled to habeas relief on the merits.

However, the respondent, further, argues that because the failure to submit a sentencing factor to the jury is not a “structural” error, Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 2551-53, 165 L.Ed.2d 466 (2006), the Petitioner’s Blakely claim must be subject to harmless error analysis even if construed as a constitutional violation.

In this Circuit, Courts construe an error as harmless if “none of the defendant’s substantial rights have been affected by the error.” United States v. Oliver, 397 F.3d 369, 381 (6th Cir.2005). In the sentencing context under consideration here, the government bears the burden of demonstrating “with certainty that the error at sentencing did not ‘cause[ ] the defendant to receive a more severe sentence.’ ” Emrick v. Wolfe, 2006 WL 3500005, at *2 (S.D.Ohio Dec.5, 2006) Cquoting Oliver, 397 F.3d at 379). “[R]e-mand for an error at sentencing is required unless we are certain that any such error was harmless i.e. any such error ‘did not affect the trial court’s selection of the sentence imposed.’ ” United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005).

Federal district courts in Ohio have staked out two differing positions on the question of whether Blakely violations constitute harmless error in light of Foster. The Respondent’s rely on the position enunciated in Shafer v. Wilson, 2007 WL 315760 (N.D.Ohio Jan.30 2007), finding a Blakely error harmless in light of Foster. See also Flannery v. Hudson, 2008 WL 1787155 (N.D.Ohio, April 17, 2008); Rettig v. Jefferys, 2008 WL 1775255 (N.D.Ohio April 15, 2008). In order to bring several provisions of the Ohio sentencing guidelines within the ambit of Booker and Blakely, Foster severed several provisions, including 2929.14(D)(2)(b), declaring that “[ajfter the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender [ ] specifications.” Id. at 29-30.

Due to Foster’s position “that trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences,” the Court in Shafer concluded that the error was harmless because, upon re-sentencing, the trial Judge would have full discretion to re-sentence the petitioner to exactly the same sentence. See Shafer, 2007 WL 315760 at *11. In Shafer the trial court made judicial findings that the petitioner showed no remorse and abused a position of trust to arrive at a sentence above the presumptive minimum. In finding harmless error, the Shafer court reasoned:

After the Ohio Supreme Court’s decision in State v. Foster, sentencing judges are free to impose any sentence within the applicable statutory range without the need to make any specific judicial findings .... Stated otherwise, because Ohio remedied its unconstitutional sentencing regime by making its guidelines advisory, there is no reason to believe the Petitioner would receive a more favorable sentence if the Court grants his habeas request for relief. In light of the fact that the Supreme Court has held that Blakely violations are not “structural” errors that require automatic reversal, we therefore agree with Respondent that no basis exists for granting the Petitioner’s request for relief despite the fact that his re-sentencing clearly did violate Blakely.

Id.

Several courts have rejected Shafer’s reasoning regarding harmless error. See Cvijetinovic v. Eberlin, 2008 WL 918576 (N.D.Ohio March 31, 2008); Villagarcia v. Warden, Noble Correctional Inst., 2007 WL 1028528 (S.D.Ohio March 30, 2007); Noland v. Hurley, 523 F.Supp.2d 659 (S.D.Ohio 2007); Perry v. Money, 2007 WL 2236634 (N.D.Ohio July 31, 2007); Crotts v. Bradshaw, 2007 WL 3283841, at *17 (N.D.Ohio Oct.30, 2007). The Court in Villagarda argued against the Shafer Court’s position by reasoning that the harmless error standard cannot be satisfied by the mere speculátion that an error could be harmless:

The flaw in this reasoning is that it equates a possibility of no actual prejudice in terms of the eventual sentence received with an actuality of no prejudice resulting from a constitutional error .... [Speculation that a judge might repeat his or her sentence without explicit factfinding does not render an error harmless as a certainty. The former scenario involves the realities of state law-either it affords an avenue to render the error harmless or it does not-while the latter presupposes a reality in which but one outcome is certain. But because more than one outcome is possible upon re-sentencing, basing harmlessness on assumed certainty is flawed. It converts the concept of harmless error in this context into a doctrine of always harmless error. Such conversion is especially dangerous when, as here, the possibility of a different sentence must logically preclude any habeas court from saying for a certainty that error is harmless. See United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005) (“Under the harmless error test, a remand for an error at sentencing is required unless we are certain that any such error was harmless”).

Villagarcia, 2007 WL 1028528 at *4 (emphasis included).

The Court finds the reasoning in Villa-garcia persuasive. The acknowledged Blakely sentencing error cannot be construed as harmless if Mr. Smith could receive a lesser sentence absent unconstitutional judicial fact-finding. Accordingly, because Mr. Smith could receive a lesser sentence upon re-sentencing the Court finds the Blakely violation is not harmless error.

CONCLUSION

The Court adopts and affirms Magistrate Judge Hemann’s Report and Recommendation with respect to all three grounds of Mr. Smith’s habeas petition and overrules the Respondent’s objections. Accordingly, the Court grants Mr. Smith’s petition only as it pertains to the claim in his second ground for relief that his nine-year sentence as a repeat offender pursuant to R.C. §§ 2929.14(D)(2) and 2929.12 was contrary to clearly established federal law.

The Court hereby vacates Mr. Smith’s independent nine-year sentence as a repeat violent offender. The State of Ohio shall within ninety days elect to re-sentence Paul Smith with regard to the repeat violent offender portion of his sentence. Mr. Smith’s remaining habeas grounds are dismissed.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

PATRICIA A. HEMANN, United States Magistrate Judge.

This matter is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Before the court is Paul Smith’s (“Smith”) petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on March 1, 2006. Smith is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State of Ohio v. Smith, Case no. CR 344957 (Cuyahoga County 1996). For the reasons set forth below, the magistrate judge recommends that the petition be granted in part.

The August 1996 term of the Cuyahoga County grand jury indicted Smith on one count of felonious assault with two firearm specifications and two repeat offender specifications. The appellate court hearing Smith’s appeal upon remand from the United States Supreme Court found the following relevant facts regarding Smith’s arrest and initial conviction:

The record reflects that during the day on August 1,1996, Iris Wilson [“Wilson”] and Paul Smith, a Jamaican, drove around in an effort to collect a drug debt from “Bootsie,” a.k.a. Mock Rogers [“Rodgers”]; later that evening, Smith saw Rogers, Kenyatta Wells [“Wells”], and Shantell Jones leave the Calypso Bar, located at Lakeshore and St. Clair Avenue, in Cleveland. As they drove off in Wells’ pickup truck, Smith told Wilson to follow them, and when Wells reached the intersection of Lakeview Avenue and DuPont, Wilson yelled to Bootsie. Wells drove on, but when he reached the next light, Wilson again yelled, “Bootsie, somebody wants to see you,” and at that point, Smith exited the car, walked over to the passenger side of Wells’ truck, shot out the window, put his hand into the vehicle, and shot Wells in the right calf. Rogers, believing he had been shot, told Wells, “I am hit! I am hit! It was Iris and Paul.”

Wells then drove to a nearby Finast grocery store, where a security guard called police and an ambulance to transport Wells to the hospital. Officer Kennedy Jones of the Sixth District Police Department arrived at the Finast store, observed bullet holes in the vehicle, spoke with Rogers and Shantell Jones, who appeared to be visibly shaken, and through that conversation, learned the identities of Smith and Wilson.

Following an investigation, police arrested Wilson and Smith, and the grand jury returned indictments against both for felonious assault in connection with the shooting of Wells. While in custody and after she had an opportunity to speak with her defense attorney who advised her not to make a written statement, Wilson signed a waiver of her rights and gave a written statement to the police which detailed that she drove Smith from Calypso’s where he first spotted Rogers to East 110 th and Lake-view. She further related that Smith then exited the car and started shooting into Wells’ truck. Smith got back into the vehicle and told Wilson to drive.

At trial and after the jury had been seated but prior to opening statements of counsel, the court ruled that Wilson’s statement would not be admitted and, in response, the state dismissed its case against her and proceeded with its case against Smith. During its case-in-chief, the state called three witnesses, including Wells, who recounted the events of August 1, 1995, identified Smith as the gunman, and testified that Rogers had told him that Smith did the shooting just after it had occurred. The state next called Wilson, who invoked her Fifth Amendment right against self-incrimination and refused to testify even after the state granted her transactional immunity because she feared federal prosecution for harboring Smith, an illegal alien. The state then offered, and the court admitted, the written statement Wilson had given to the police in which she stated that Smith shot Wells. The state then called Officer Jones who had observed the bullet holes inside of Wells’ truck and who had spoken with Rogers and Jones within 30 minutes of the shooting. He testified to the suspects’ identities, which the court admitted under the excited utterance exception to the hearsay evidence rule. Following deliberation, the jury returned a verdict finding Smith guilty of felonious assault.

State v. Smith, 1999 WL 1129070 (Ohio App. Dec. 9, 1999). The jury found Smith guilty of felonious assault. On January 27, 1997 the court sentenced Smith to eight years imprisonment for felonious assault and to prior and consecutive sentences of three years for firearm specifications and nine years for repeat offender specifications.

A. Direct appeal from first conviction

Smith timely filed a notice of appeal. Among the five assignments of error Smith raised on appeal was his assertion that the court violated his right to confront the witnesses against him when it admitted a written statement from Wilson after Wilson refused to testify in court on the grounds that her testimony might incriminate her. On August 21, 1998 the appellate court overruled Smith’s assignments of error and affirmed the judgment of the trial court. The court held in particular that Wilson’s statement was properly admitted as evidence against Smith pursuant to the exception to the prohibition against hearsay at Ohio Evid. R. 804(B)(3), admission of a statement against interest. State v. Smith, 1998 WL 323545, at *4 (Ohio App. June 18, 1998). The court reached this conclusion because it found that Wilson was unavailable to give testimony at the time of trial, the statement was against her interest because it tended to expose her to criminal liability, and corroborating circumstances indicated the statement’s trustworthiness. Id. at **4-5.

On October 5, 1998 Smith filed a notice of appeal with the Ohio Supreme Court. Smith raised two propositions of law in his memorandum in support of jurisdiction, including his contention that the admission of Wilson’s written statement violated his right of confrontation. On December 23, 1998 the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question.

Smith timely petitioned the United States Supreme Court for a writ of cer-tiorari. The Supreme Court granted his petition on June 21, 1999, vacating the judgment of the Ohio appellate court and remanding the case for further consideration in light of Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Lilly held that the statement of an accomplice implicating an accused was not within a firmly rooted exception to the hearsay rule and could not be admitted unless accompanied by particular indi-cia of reliability. On December 20, 1999 the appellate court concluded “that the admission of Wilson’s written statement in this case constitutes harmless error beyond a reasonable doubt.” Id. at **7-8.

On April 24, 2000 Smith moved in the Ohio Supreme Court for a delayed appeal of the appellate court’s decision. The Ohio Supreme Court granted Smith’s motion on May 31, 2000. In his memorandum in support of jurisdiction, Smith asserted two propositions of law:

Proposition Of Law No. I: Where the court admitted as substantive proof of guilt, considerable evidence which offended the accused’s right of confrontation and which was clearly hearsay, it is a due process violation to regard the admission of such evidence as harmless.

Proposition Of Law No. II: Given that the United States Supreme Court unanimously held that a blame-shifting statement (made by one said to be an accomplice) is a prime example of unreliable hearsay which the confrontation clause prohibits (absent any opportunity for cross-examination), to the extent the flawed notions expressed by the Court of Appeals (in its original Opinion following remand) are thought to survive Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), such a view cannot withstand meaningful scrutiny.

(Capitalization in the original.) The Ohio Supreme Court dismissed Smith’s appeal as not involving any substantial constitutional question on September 2, 2000.

B. Petition for postconviction relief

On September 4, 1998 Smith moved in the trial court for postconviction relief. Smith asserted two grounds for relief in his petition, ineffective assistance of trial counsel and denial of due process in sentencing. On December 8, 1998 the trial court denied Smith’s petition because it was untimely filed and because Smith failed to present any compelling reason to waive the filing deadline. Smith timely appealed the denial of his petition for post-conviction relief, and on February 28, 2000 the appellate court affirmed the judgment of the trial court. A timely appeal to the Ohio Supreme Court resulted in that court’s dismissal of Smith’s appeal as not involving any substantial constitutional question on June 14, 2000.

C. Application for reopening

On November 19,1998 Smith filed in the appellate court an application for reopening his direct appeal pursuant to Ohio App. R. 26(B). In his application, Smith argued that appellate counsel had been ineffective in not arguing that Smith was denied due process when the trial court imposed the maximum sentence for felonious assault because Smith was a “repeat violent offender.” On January 3, 2000 the court overruled Smith’s assignment of error and affirmed the judgment of the trial court. Smith timely appealed to the Ohio Supreme Court, and on May 3, 2000 that court dismissed Smith’s appeal as not involving any substantial constitutional question.

D. Petition for a federal writ of habeas corpus

Smith filed a petition for a federal writ of habeas corpus in this court on December 5, 2001. Smith raised five grounds for relief, including his claim that admission of Wilson’s written statement violated his right of confrontation. On September 13, 2002 the district court granted Smith’s petition, finding that admission of Wilson’s statement violated the Confrontation Clause and that this was not harmless error. Smith v. Wilson, 231 F.Supp.2d 650 (N.D.Ohio 2002). The court ordered the State of Ohio to retry Smith within 120 days or it would entertain a petition from Smith for his unconditional release.

E. Second conviction

Smith’s second trial began on January 6, 2003. The state appellate court hearing Smith’s direct appeal of his second conviction found the following relevant facts regarding his trial, conviction, and post-trial hearing:

The state presented the testimony of Kenyatta Wells, and Cleveland Police Officers Kennedy Jones, Xavier Lynch, Robert Minor, Thomas Lucey, Kevin Freeman, and Thomas Wheeler.

Kenyatta Wells testified that on August 1,1996, he was with Mock Rodgers, a.k.a “Bootsie,” and Chantell Jones at a recording studio located at East 55th Street and Marginal Road. They went to the Calypso Bar to get something to eat. As they were returning to the studio in Rodgers’ green pickup truck, they stopped at a light on DuPont Avenue. A black, four-door vehicle pulled up and the woman driving the car said, “Hey Bootsie, somebody wants to holler at you.” Wells, the driver of Rodgers’ pickup, proceeded to the next light. At this point, the same car approached a second time, and the female driver repeated, “Hey Bootsie, somebody wants to holler at you.” The passenger then got out of the black car and ran over to the passenger side of the pickup truck. He said, “What’s up, mother f* * * * *,” ^pen piaced his hand into the truck and started shooting. Wells drove off and the black vehicle followed.

“I was stopped by the traffic light in the center lane. At this moment the black Park Avenue 4 dr. pulled up on the right of the truck[.] At this moment the female by the name of Iris rolled down her window and stated that someone wanted to talk to Bootsy (sic). I then asked Bootsy (sic) if he knew who the female was as I was pulling the vehicle up. The car then pulled up some more and the female driver stated again that someone wanted to talk to him. He then notice (sic) that the driver was the female name (sic) Iris. At this moment someone exit (sic) the auto on the passenger side and started to walk up on the passenger side of the truck and stated, ‘What’s up mother f* * * * * ” and then started to shoot into the truck. At this moment my friends started saying take off take off. I then drove off going to the Finast Store located at Lakeview and Superior.”

“Q — Do you know who the shooter is?”

“A — Yes, Paul Smith.”

Wells identified defendant in court. He testified that .he had seen defendant many times at Rodgers’ house, that he was present when defendant and Rodgers’ discussed business matters concerning their real estate dealings, and that he was aware of problems between the two men. He further testified that he knew Iris, the driver of the black car, through the father of her baby.

Following the presentation of the state’s case, defendant rested.

State v. Smith, 2004 WL 1472081 (Ohio App. July 1, 2004).

The court held a sentencing hearing on February 28, 2003. During the hearing, the court made the following findings and determinations:

Obviously, this Court now has heard the testimony of the — regarding the facts of this case twice, back in 1996, as well as most recently a month ago.

This Court has the pre-sentence investigative report, which indicates the defendant does have a criminal history dating back to '87, where he had an aggravated assault with a deadly weapon.

In 1988, he was charged and convicted of smuggling marijuana into a jail.

Then, in 1993, he made his way to Cleveland and was indicted for forgery, with two counts of uttering, two counts of possession of criminal tools.

This was a serious case. There was a substantial risk of death. Physical harm was caused. It would be demeaning to the seriousness of the offense to hold otherwise.

With respect to the repeat violent offender specification, the Court will impose a nine-year sentence, which will be served consecutive.

Tr. at 336-38. On May 21, 2003 the court docketed the following journal entry:

DEFENDANT IN COURT WITH COUNSEL JAMES WILLIS. ON A FORMER DAY OF COURT DEFENDANT WAS FOUND GUILTY BY A JURY OF FELONIOUS ASSAULT WITH A 3 YEAR FIREARM SPECIFICATION ORC 2903.11 F-2 (SB2) AS CHARGED IN THE INDICTMENT. THE COURT FOUND DEFENDANT GUILTY OF 2 REPEAT VIOLENT OFFENDER SPECIFICATIONS.

DEFENDANT AND PROSECUTOR MICHAEL HORN ADDRESS THE COURT.

THE COURT CONSIDERED ALL OF THE REQUIRED FACTORS OF THE LAW.

THE COURT FINDS THAT PRISON IS CONSISTENT WITH THE PURPOSES OF R.C. 2929.11.

THE COURT IMPOSES A PRISON TERM AT LORAIN CORRECTIONAL INSTITUTION OF 3 YEARS ON THE FIREARM SPECIFICATION TO BE SERVED PRIOR TO AND CONSECUTIVE WITH TIME OF 8 YEARS ON THE BASE CHARGE AND GIVEN 9 YEARS ON THE REPEAT VIOLENT OFFENDER SPECIFICATION TO BE SERVED CONSECUTIVE TO THE SENTENCE FOR A TOTAL CONFINEMENT OF 20 YEARS.

Smith’s sentence also included post-release control and court costs.

F. Second direct appeal

Smith timely filed a notice of appeal in the state appellate court. In support of his appeal Smith raised nine assignments of error:

ASSIGNMENT OF ERROR I:

THE TRIAL COURT ERRED IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND EVIDENCE RULES 801 AND 802 WHEN IT PERMITTED WITNESS WELLS TO TESTIFY ABOUT WHAT HE LEARNED IN CONVERSATIONS WITH NON-WITNESS RODGERS.

ASSIGNMENT OF ERROR II:

THE TRIAL COURT ERRED WHEN IT ADMITTED TESTIMONY THAT IRIS WILSON AND MR. SMITH WERE ROMANTICALLY INVOLVED, THAT ONE OF IRIS WILSON’S “BOYFRIENDS” HAD A CRIMINAL HISTORY AND THAT IRIS WILSON PRESENTED A FALSE DRIVER’S LICENSE.

ASSIGNMENT OF ERROR III:

THE TRIAL COURT ERRED BY FAILING TO COMPREHENSIVELY INSTRUCT THE JURY FOLLOWING CLOSING ARGUMENTS.

ASSIGNMENT OF ERROR IV:

THE FAILURE TO INCLUDE WRITTEN JURY INSTRUCTIONS IN THE RECORD DEPRIVED MR. SMITH OF HIS RIGHT TO DUE PROCESS BY IMPAIRING HIS RIGHT TO AN EFFECTIVE FIRST APPEALf ] AS OF RIGHT.

ASSIGNMENT OF ERROR V:

THE PROSECUTION VIOLATED MR. SMITH’S CONSTITUTIONAL RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT ENGAGED IN IMPROPER CLOSING ARGUMENT THAT COMMENTED UPON THE DEFENDANT’S FAILURE TO PRESENT A DEFENSE AND WAS DESIGNED TO APPEAL TO THE PASSIONS OF THE JURY.

ASSIGNMENT OF ERROR VI:

THE TRIAL COURT IMPROPERLY SENTENCED MR. SMITH TO ADDITIONAL TERMS OF IMPRISONMENT AS A REPEAT VIOLENT OFFENDER.

ASSIGNMENT OF ERROR VII:

THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE FOR THE CRIME OF FELONIOUS ASSAULT.

ASSIGNMENT OF ERROR VIII:

MR. SMITH WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR IX:

THE TRIAL COURT ERRED WHEN IT IMPOSED A TWENTY YEAR SENTENCE WITHOUT DETERMINING THAT AN ADEQUATE FACTUAL BASIS EXISTED TO ENSURE THAT THE SENTENCE IMPOSED WAS CONSISTENT WITH THAT IMPOSED UPON SIMILARLY SITUATED OFFENDERS COMMITTING SIMILAR OFFENSES.

On July 16, 2004 the state appellate court found Smith’s assignments of error to be without merit and affirmed the judgment and sentence of the trial court.

Smith timely appealed the judgment of the state appellate court to the Ohio Supreme Court. In his memorandum in support of jurisdiction, Smith advanced five propositions of law:

Proposition of Law I:

R.C. 2929.14(D)(2)’s provision that requires trial courts to impose maximum sentences upon certain repeat violent offenders, and that allows trial courts to impose upon certain repeat violent offenders 1 to 10 years of additional imprisonment in excess of the statutory maximum otherwise provided for the underlying offense, violates the Sixth Amendment to the United States Constitution by conditioning such sentences upon findings made by the trial judge and not by the jury.

Proposition of Law II:

In order to impose a sentence in excess of the statutory maximum on a repeat violent offender, there must be present at least one of the enumerated factors which R.C. 2929.12 specifically recognizes as making the offender’s conduct more serious than conduct normally constituting the offense.

Proposition of Law III:

A trial court must ensure that its sentence if proportionate to sentences being imposed upon similarly situated offenders committing similar offenses.

Proposition of Law IV:

It is a violation of the Sixth Amendment right to confront witnesses as well as a violation of Ohio hearsay law, for a witness to testify about what he learned in conversations with non-witnesses, regardless of whether the testifying witness actually relates the non-witness’ statements.

Proposition of Law V:

It is improper for the prosecution in closing argument to comment upon the defendant’s failure to present a defense, to characterize defense counsel as being less objective than the prosecution, and to appeal to the passions of the jury.

(Punctuation in the original.) On December 1, 2004 the Ohio Supreme Court declined jurisdiction and dismissed Smith’s appeal as not involving a substantial constitutional question.

G. Second petition for a federal writ of habeas corpus

On March 1, 2006, Smith filed in this court a second petition for a writ of habeas corpus. Smith asserts three grounds for relief in his petition:

B. Ground two: Mr. Smith received a ten-year sentencing enhancement as a Repeat Violent Offender pursuant to O.R.C. 2929.14 and 2941.145, which are violative of the Sixth Amendment because they permit imposition of a sentence beyond the normal statutory maximum on the basis of findings made by a trial judge alone and not submitted to a jury to be proven beyond a reasonable doubt; moreover the trial court denied Mr. Smith due process under the Fourteenth Amendment because the trial court did not make the findings required by the statute, nor was there sufficient evidence to support the findings in any event.

Respondent filed a Return of Writ on June 1, 2006 (“Return”; Docket # 7). Thus, the petition is ready for decision.

A. Jurisdiction

Smith was sentenced by the Court of Common Pleas of Cuyahoga County, Ohio. Smith filed his writ of habeas corpus in the Northern District of Ohio and raises claims regarding the constitutionality of his incarceration under 28 U.S.C. § 2254.

Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions .... Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application.

28 U.S.C. § 2241(a) & (d). This court has jurisdiction over Smith’s claims.

B. Exhaustion of state remedies

Prior to seeking review of conviction by federal habeas corpus, a state prisoner must exhaust all possible state remedies or have no remaining state remedies. 28 U.S.C. § 2254(b) and (c); Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir.1991). If any state procedures for relief remain available, the petitioner has not exhausted state remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). A state has not “waived the defense of nonexhaustion unless it does so expressly and through counsel.” Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir.2000) (citing 28 U.S.C. § 2254(b)(3)).

A petitioner must fairly present any claims to the state courts in a federal constitutional context properly to exhaust state remedies. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir.1989). “[Ojnce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard, 404 U.S. at 275, 92 S.Ct. 509; see also Harris v. Rees, 794 F.2d 1168, 117