Opinion
CASE NO. 2:07-cv-667.
March 19, 2010
OPINION AND ORDER
On January 26, 2010, after conducting an evidentiary hearing, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, his objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner objects solely to the Magistrate Judge's recommendation of dismissal of claims one and two on the merits. He does not object to the Magistrate Judge's recommendation of dismissal of claims three and four.
He objects to the Magistrate Judge's conclusion that petitioner failed to meet his burden of establishing by a preponderance of the evidence that he requested Attorney James Pattison to file an appeal on his behalf. Petitioner contends that Pattison's lack of documentation in his case file, and failure to consult with petitioner prior to sentencing or request a lesser sentence on petitioner's community control violation lifetime drivers license suspension lend credence to petitioner's version of the events. Similarly, petitioner contends that evidence indicates that Pattison may not have received petitioner's telephone messages inquiring about an appeal, and that he filed his motion for delayed appeal in a relatively timely manner. Petitioner also objects to the Magistrate Judge's conclusion that Pattison did not perform in a constitutionally ineffective manner by failing further to consult with petitioner regarding an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. After careful consideration of the entire record, the Court is not persuaded by petitioner's arguments. For the reasons already detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.