Opinion
CASE NO. 4:05cv501-SPM/WCS.
April 5, 2007
ORDER
THIS CAUSE comes for consideration upon the magistrate judge's report and recommendation dated March 13, 2007 (doc. 15). Petitioner has been furnished a copy of the report and recommendation and has filed objections (doc. 16). Having considered the report and recommendation and objections, pursuant to Title 28, United States Code, Section 636(b)(1), I have determined that the report and recommendation should be adopted.
The gist of Petitioner's claim is that his 1977 second degree murder conviction (a first degree felony punishable by life imprisonment) was improperly classified as a life felony under Fla. Stat. § 775.087. Petitioner's judgment of conviction does not contain a statutory citation indicating how the offense was classified. As noted in the report and recommendation, the proper classification of Petitioner's conviction is an issue of state law that is not cognizable on federal habeas review. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989); Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000).
Even if the claim were cognizable, the one year limitations period for filing the petition expired on April 24, 1997. 28 U.S.C. § 2244(d)(1). Petitioner makes no legitimate claim of actual innocence. His life sentence is an authorized punishment for second degree murder, even without the sentencing enhancement of § 775.087, Fla. Stat. See § 782.04(2), Fla. Stat. Accordingly, it is
ORDERED AND ADJUDGED:
1. The magistrate judge's report and recommendation (doc. 15) is ADOPTED and incorporated by reference in this order.
2. The motion to dismiss (doc. 12) is granted.
3. The § 2254 petition for writ of habeas corpus (doc. 1) is dismissed as untimely and for failing to state a cognizable claim.
DONE AND ORDERED.