Opinion
CASE NO.: 3:04cv248/MCR/MD.
March 27, 2007
ORDER
This cause comes on for consideration upon the magistrate judge's Third Report and Recommendation dated January 23, 2006. The petitioner has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1), and I have made a de novo determination of those portions to which an objection has been made.
The Third Report and Recommendation contains the magistrate judge's well-reasoned analysis of the Supreme Court's decisions in Schlup v. Delo, 115 S.Ct. 851 (1995) and House v. Bell, 126 S.Ct. 2064 (2006). The court readily accepts the magistrate judge's recommended finding that the affidavit of Deputy Lawrence Vieitez is not sufficient to warrant granting an evidentiary hearing on petitioner's claim of actual innocense because petitioner has failed to demonstrate a likelihood that an evidentiary hearing would produce exculpatory testimony from James Patrick Bonifay. As discussed in the Third Report and Recommendation this finding is based on several factors, not solely the fact that the affidavit contains inadmissible hearsay. Additionally, the court agrees with the magistrate judge's assessment of the weight of evidence of petitioner's guilt that was presented at trial, and his conclusion that the affidavit of former juror David Schisler does not alter the court's analysis or change its decision because the juror affidavit comments on the effect of Deputy Vieitez's affidavit, which is evidence the court has declined to consider.
With his objections Petitioner has submitted the affidavit of an additional former juror, Eula Stanfill, which is identical in substance to David Schisler's affidavit. Eula Stanfill's affidavit is not considered for the same reasons as David Schisler's.
Having considered the Third Report and Recommendation and all objections thereto timely filed, I have determined that the Third Report and Recommendation should be adopted.
Accordingly, it is now ORDERED:
1. The magistrate judge's Third Report and Recommendation is adopted and incorporated by reference in this order.
2. The amended petition for writ of habeas corpus (doc. 39) challenging the conviction and sentence in State of Florida v. Larry E. Fordham, Jr., in the Circuit Court of Escambia County, Florida, case no. 91-606, is DISMISSED with prejudice and the clerk is directed to close the file.
DONE AND ORDERED.