The opinion of the court was delivered by: Anita B. Brody, J.
AND NOW, this 20th day of __March______, 2013, upon careful and independent consideration of the petition for writ of habeas corpus, the parties' briefs, United States Magistrate Judge Carol Sandra Moore Wells' Report and Recommendation ("R & R"), and Petitioner's objections to the R & R, it is ORDERED that:
1. The R & R is APPROVED and ADOPTED IN PART and REJECTED IN PART, see ECF No._12__, as follows:
a. The R & R is APPROVED and ADOPTED as it pertains to claim one of Balsavage's petition, which seeks relief on the ground that the trial court violated Balsavage's rights under the U.S. Constitution by increasing his original sentence after he petitioned for resentencing to exercise his right of allocution;
b. The R & R is APPROVED and ADOPTED as it pertains to claim three of Balsavage's petition, which seeks relief on the ground that the trial court violated Balsavage's Fifth Amendment right against self-incrimination when the judge aggressively cross-examined Balsavage prior to imposing a sentence;
c. The R & R is REJECTED as it pertains to claim two of Balsavage's petition, which seeks relief on the ground that the increased sentence Balsavage received after his appeal violates the Due Process Clause of the Fourteenth Amendment because it is the product of judicial vindictiveness.
2. The petition for a writ of habeas corpus is CONDITIONALLY GRANTED. See Memorandum and Order, ECF Nos. 12, 13.
3. There is no basis for the issuance of a certificate of appealability to Petitioner on claims one and three. A certificate of appealability is not required for Respondents because they may appeal as of right.
Copies VIA ECF on _________ to: Copies MAILED on _______ to:
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