Opinion
Case No. 4:04-cv-00455-MP-EMT.
October 31, 2006
ORDER
This matter is before the Court on Doc. 22, Report and Recommendation of the Magistrate Judge, recommending that Petitioner Fryson's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be denied. The Magistrate Judge filed the Report and Recommendation on Tuesday, September 26, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made. In this instance, however, no objections were made.
Petitioner was convicted in state court on two counts of armed robbery, and this conviction was upheld by the First District Court of Appeal. Petitioner now seeks to challenge this conviction in federal court based upon the alleged ineffective assistance of his counsel at trial. Counsel for Petitioner did not file a motion to dismiss the information charging Petitioner with two counts of armed robbery, and Petitioner contends that this constitutes ineffective assistance because the information did not establish every element of the charged offense. However, as the Magistrate points out, "Petitioner's information, which alleged that Petitioner had taken property using force, was sufficient under Florida law, and defense counsel would not have had a meritorious basis for moving to dismiss the information." Doc. 22 at 10. Thus, Petitioner cannot meet the first prong of Strickland v. Washington, 466 U.S. 668 (1984), to establish a claim for ineffective assistance — demonstrating deficient performance by counsel. Even if Petitioner could meet this first prong, the Magistrate is correct that no prejudice would result as the information could have been corrected and refiled, and no reason exists to suggest that the result would have been different with an amended information. Therefore, having considered the Report and Recommendation, I have determined that the Report and Recommendation should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation, Doc. 22, is adopted and incorporated by reference in this order.
2. Petitioner Fryson's petition for writ of habeas corpus, Doc. 1, is denied.
DONE AND ORDERED.