Opinion
No. 3:03-CV-1109-M (Consolidated with 3:03-CV-1229-M).
April 6, 2005
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
United States Magistrate Judge Paul D. Stickney made findings, conclusions and a recommendation in this case. Plaintiff filed objections, and the District Court has made a de novo review of those portions of the proposed findings and recommendation to which objection was made. The objections are overruled, and the Court accepts the Findings, Conclusions and Recommendation of the United States Magistrate Judge, except that this Court corrects page 12, line 9 of the Findings, Conclusions and Recommendation of the United States Magistrate Judge to eliminate the extraneous phrase "in making an offhand remark."
Petitioner filed objections arguing that his trial counsel filed an affidavit that conflicts with the trial testimony. Petitioner argues his trial counsel was ineffective for failing to discover that the prosecution intended to introduce Petitioner's wallet at trial to establish a link between Petitioner and the drugs. On state habeas review, Petitioner's counsel submitted an affidavit stating that he learned of the wallet's existence and location prior to trial during Petitioner's motion to suppress. Ex parte Jackson, Application No. 20,129-05, p. 133. Petitioner argues this affidavit conflicts with counsel's trial testimony. At trial, defense counsel objected to the prosecution's introduction of the wallet. (Trial Transcripts Vol. 3, pp. 168-69). Defense counsel stated the wallet contained numerous pieces of hearsay evidence that he had not seen before. ( Id.). Defense counsel's affidavit stating that he knew of the existence of the wallet before trial is not inconsistent with defense counsel's statement at trial that he had not seen the contents of the wallet. Petitioner's objection is OVERRULED.
SO ORDERED.