Opinion
Case No.: 3:05cv165/MCR/EMT.
May 8, 2007
ORDER
This cause brought pursuant to 28 U.S.C. § 2254 comes on for consideration upon the magistrate judge's March 14, 2007, report and recommendation (doc. 34), and petitioner's timely objection thereto (doc. 40). Petitioner alleges in Ground Ten of his third amended petition that he was denied effective assistance of counsel by counsel's failure to advise the defendant of a plea offer from the state. Upon review of the record, the magistrate judge found that the petitioner did not provide nor allege the existence of any evidence to support that claim. The magistrate judge did note that Petitioner asserted in his first Rule 3.850 motion that after his trial he was informed by "a relative" that an offer of twenty years had been made. In response to the report and recommendation, Petitioner submitted the written declaration of his sister Brenda Smith, which was signed under penalty of perjury, implying that a plea offer existed but was not communicated to Petitioner prior to trial. Upon consideration, it is
ORDERED:
This matter is referred back to the magistrate judge for review and determination as to whether an evidentiary hearing is warranted with regard to Petitioner's claim of an alleged plea offer.
DONE AND ORDERED.