Opinion
CASE NO. 4:06cv543-SPM/WCS.
June 23, 2008
ORDER
THIS CAUSE comes before the Court on the magistrate judge's report and recommendation (doc. 28) dated April 9, 2008. Petitioner has filed objections (doc. 29) pursuant to Title 28, United States Code, Section 636(b)(1). Having considered the objections, I have determined that the report and recommendation should be adopted.
The magistrate judge's report and recommendation correctly found that grounds one, two, and part of ground six (as to the right to appeal), were procedurally defaulted. Petitioner's argument that the default should be excused because he was forced to litigate his postconviction proceedings with court-appointed counsel is without merit. Florida recognizes the right of defendants to proceed pro se in postconviction proceedings.Alston v. State, 894 So.2d 46, 57 (2004). Petitioner also argues that his procedural default should be excused because he is actually innocent. Petitioner does not satisfy the standard under Schlup v. Delo, 513 U.S. 298 (1995), however, because the affidavit from the victim is conclusory and unsworn. Doc. 29, p. 10.
As to the remaining claims, Petitioner's objections cover issues that are already addressed in the Report and Recommendation.
Accordingly, it is hereby ORDERED as follows:
1. The magistrate judge's report and recommendation (doc. 28) is ADOPTED and incorporated by reference in this order.
2. The § 2254 petition for writ of habeas is denied.
DONE AND ORDERED.