Opinion
CASE NO.: 1:06-CV-15 (WLS).
April 22, 2011
ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge Claude W. Hicks, Jr., filed April 28, 2010. (Doc. 40). It is recommended that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied. (Doc. 40 at 7). Following several procedural matters ( see, e.g., Doc. 46), Petitioner filed a timely Objection. (Doc. 47).
For the following reasons, the objections set forth in Petitioner's Objection (Doc. 47) are OVERRULED and United States Magistrate Judge Hicks's April 28, 2010 Report and Recommendation (Doc. 40) 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 Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.
Petitioner's Objection (Doc. 47) invests twenty-seven (27) pages of argument based on the premise that Judge Hicks committed error in having "deferred his obligation to conduct an independent review [of the facts]; and, moreover, accepted the State court's findings." (Doc. 47 at 4). This objection is OVERRULED. As plainly stated in the Report and Recommendation, a Federal Court reviewing a habeas petition must presume the correctness of the state appellate court's factual findings, which can only be rebutted by the habeas petitioner by clear and convincing evidence." (Doc. 40 at 2). Judge Hicks found that Petitioner did not even attempt to rebut the presumption, stating that "no dispute has been raised herein regarding the findings of fact issued by the Georgia Court of Appeals." ( Id.). Petitioner therefore waived any argument regarding the presumed correctness of the appellate court's findings, and accordingly such argument will not be heard by this Court.
Petitioner states three (3) grounds in his federal writ of habeas corpus. (Doc. 1 at 5-10). Judge Hicks found grounds one and three to have been procedurally defaulted, and found that Petitioner failed to overcome the procedural bar because Petitioner did not establish either cause or prejudice — let alone both. (Doc. 40 at 4-5). The Court finds that Petitioner's Objection (Doc. 47), which cites and quotes much law but provides little substantive argument regarding grounds one and three ( see id. at 6-19), fails to rebut the legally sound recommendation of Judge Hicks regarding the procedural default of grounds one and three, and accordingly Plaintiff's Objection is OVERRULED.
Regarding ground two, Judge Hicks found that it was unreviewable by the state habeas court because the issue had been directly appealed and decided, thus procedurally barring ground two from consideration in Federal Court. (Doc. 40 at 4-5). The Court finds that Petitioner's Objection (Doc. 47), which also cites and quotes much law but provides little substantive argument regarding ground two ( see id. at 20-26), fails to rebut the legally sound recommendation of Judge Hicks regarding the procedural default of ground two, and accordingly Plaintiff's Objection is OVERRULED.
Finally, Judge Hicks found no constitutionally improper application of Federal law by the state habeas court in its ruling on Petitioner's claim for ineffective assistance of appellate counsel. Although Petitioner's Objection often referencesStrickland v. Washington, ( see generally Doc. 47), the Court finds no convincing argument therein that the state habeas court violated the dictates of that Supreme Court decision. Accordingly, the Court finds that Petitioner's Objection (Doc. 47) fails to rebut the legally sound recommendation of Judge Hicks regarding the ineffective assistance of appellate counsel claim, and accordingly Plaintiff's Objection is OVERRULED.
For the foregoing reasons, the objections set forth in Petitioner's Objection (Doc. 47) are OVERRULED and United States Magistrate Judge Hicks's April 28, 2010 Report and Recommendation (Doc. 40) 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 Petition for Writ of Habeas Corpus (Doc. 1) is DENIED. SO ORDERED.