Opinion
CASE NO.: 1:07-CV-144 (WLS)
02-07-2013
GILBERT W. KING, Petitioner, v. ALEXIS CHASE, Warden, Respondent.
ORDER
Before the Court is a Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed February 29, 2012. (Doc. 53.) It is recommended that Petitioner's federal habeas petition be denied. (Doc. 53 at 7.)
The Recommendation provided the Parties with fourteen (14) days from the date of its service to file written objections to the recommendations therein. (Id.)The period for objections expired on Monday, March 19, 2012. (See generally Docket.) Petitioner's Objection to the Recommendation, filed twice, once as an Objection (Doc. 54) and once as a Motion for Reconsideration (Doc. 55), was not filed until March 28, 2012, with no explanation provided for the delay. (Docs. 54, 55.) As such, Petitioner's Objection was not timely filed and will not be considered.
The Court will interpret Petitioner's Motion for Reconsideration (Doc. 55) as an Objection. As both the Objection (Doc. 54) and the Motion for Reconsideration (Doc. 55) are identical, the Court will consider them as one.
Petitioner's Objection, even if it was timely, is not persuasive. Petitioner now asserts that he raised Ground 10, a due process claim, in his state habeas proceeding, despite earlier asserting that the due process claim was new. (Compare Doc. 54 at 3 with Doc. 51 at 10.) However, as he presents no evidence to support this shift in position, he fails to rebut the Magistrate Judge's finding that Ground 10 is procedurally defaulted. Petitioner then simply restates the same point he raised in his Supplemental Brief: that the "new evidence" claim, Ground 10, establishes his actual innocence. (Compare Doc. 51 at 6-10 with Doc. 54 at 2-6.) As Judge Langstaff noted, the victim had already recanted her allegations of molestation at trial, and Petitioner's new allegations fail to "raise sufficient doubt about his guilt to undermine confidence in the result of the trial." Scarlett v. Sec'y, Dep't of Corrections, 404 F. App'x. 394, 401 (11th Cir. 2010). Accordingly, this Court finds that Petitioner's Objection (Docs. 54, 55) fails to rebut the legally sound recommendation of Judge Langstaff.
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Upon full review and consideration of the Record, the objections set forth in Petitioner's Objection (Doc. 54) and Motion for Reconsideration (Doc. 55), are OVERRULED, and United States Magistrate Judge Langstaff's February 29, 2012 Recommendation (Doc. 53) is ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein together with the reasons stated and conclusions reached herein. Accordingly, Petitioner's federal habeas Petition (Doc. 2) is DENIED.
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THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT