Opinion
Case No. 5:04cv382-RH/WCS.
February 3, 2006
ORDER DENYING PETITION
This habeas petition under 28 U.S.C. § 2254 is before the court on the report and recommendation (document 16), and the objections thereto (document 21). I have reviewed de novo the issues raised by the objections. The report and recommendation is correct and will be adopted as the opinion of the court with this additional note.
The trial court told the bailiff, before the child victim testified, not to let anyone in the courtroom. (Tr. July 13, 2000 (document 5 ex. A) at 28.) Defendant made no objection asserting that this was improper. ( Id.) Nobody was asked to leave, because nobody was in the courtroom other than those permitted to stay. ( Id.) Although the record apparently does not specifically indicate that the courtroom was reopened at the conclusion of the child victim's testimony, there is no reason to believe it was not; it would have been an uncommonly dense bailiff who did not understand this. The record gives no indication that anyone attempted to enter while the child victim was testifying. In short, the court's directive not to let anyone in drew no objection and, at least so far as this record reflects, made no difference. Defendant has not shown cause or prejudice sufficient to overcome the procedural default of this issue.
For these reasons and those set forth in the report and recommendation,
IT IS ORDERED:
The report and recommendation is ACCEPTED and adopted as the opinion of the court. The clerk shall enter judgment stating, "The petition under 28 U.S.C. § 2254 challenging petitioner's conviction for lewd and lascivious molestation of a child less than 12 years of age by a person 18 years of age or older in violation of FLA. STAT. § 800.04(5)(b), in the Circuit Court, Fourteenth Judicial Circuit, Bay County, Florida, case number 00-0159G, is DENIED with prejudice." The clerk shall close the file.
SO ORDERED.