Knight v. McDonough

Full title: RUSSELL ALLEN KNIGHT, SR., Petitioner, v. JAMES R. McDONOUGH, Respondent

Court: United States District Court, N.D. Florida, Gainesville Division

Date published: Apr 19, 2006

Case No. 1:05-cv-00089-MP-MD (N.D. Fla. Apr. 19, 2006)

Opinion

Case No. 1:05-cv-00089-MP-MD.

April 19, 2006

ORDER

MAURICE PAUL, Senior District Judge

This matter is before the Court on Doc. 18, Report and Recommendations of the Magistrate Judge. In his report, the Magistrate recommended that Russell Knight's petition for writ of habeas corpus, Doc. 1, be denied and that this cause be dismissed. The Magistrate Judge filed the Report and Recommendation on Wednesday, February 22, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Petitioner has filed objections to the Magistrate's report, Doc. 19. 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.

Having considered the Report and Recommendation and all objections thereto timely filed, I have determined that the Report and Recommendation should be adopted. In his objections, petitioner reiterates his position as stated in his previous filings and requests that an evidentiary hearing be held so that he may present "new evidence" and further explain how counsel rendered ineffective assistance. The Court, however, is in full agreement with the well reasoned and written opinion of the Magistrate Judge. Petitioner failed to exhaust available state court remedies with respect to this "new evidence" as is required in order for the court to review this on a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Furthermore, the petitioner has not shown cause and prejudice or a fundamental miscarriage of justice sufficient to overcome this resulting procedural default. See Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). Finally, the court agrees with the Magistrate that the petitioner has failed to show that his counsel rendered ineffective assistance at trial. Therefore, having considered the Report and Recommendation and objections thereto filed, 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 is adopted and incorporated by reference in this order.

2. Russell Knight's petition for writ of habeas corpus, Doc. 1, is denied and this cause is dismissed. The Clerk is directed to close the file.

DONE AND ORDERED.