Opinion
CASE NO.: 4:08-CV-256-SPM/GRJ.
September 13, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 29). Petitioner has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed a "Motion to Respond to Report of Recommendation" which the court will treat as an objection (doc. 30).
Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the Report and Recommendation is correct and should be adopted. The Court agrees with the Magistrate Judge's analysis. Based on the record, regarding the ineffective assistance of counsel claim, Petitioner has failed to show that the state court unreasonably determined that counsel's performance was not deficient. Petitioner also argues that the state court failed to apply Strickland when denying his motion for postconviction relief. However, Petitioner failed to properly exhaust this claim which would not be barred and thus, foreclosed from federal habeas review. Nevertheless, this claim would still be denied on the merits because although the state court did not specifically state that it applied Strickland, the state court's rationale is consistent with the Strickland analysis.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. The Magistrate Judge's Report and Recommendation (doc. 29) is adopted and incorporated by reference into this order.
2. The Petition for a writ of habeas corpus (doc. 11) is denied.
3. A certificate of appealability is denied.
DONE AND ORDERED.