Price v. Giles et al (INMATE1)

Filing 35

ORDERED that: (1) The 34 Objections are OVERRULED; (2) The 31 Report and Recommendation is ADOPTED; and (3) The 1 Petition for Habeas Corpus relief is DENIED; and (4) This case is DISMISSED with prejudice. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 3/6/2009. (Attachments: # 1 Civil Appeals Checklist)(cb, )

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IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E N N E T H PRICE AIS # 150784, a .k .a . KENNY PRICE, P e t i t io n e r , v. J . C. GILES, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) ) C A S E NO. 2:06-CV-236-WKW [WO] ORDER O n January 28, 2009, the Magistrate Judge filed a Recommendation that the court d e n y Petitioner Kenneth Price's ("Mr. Price") petition for habeas corpus relief and dismiss th is case with prejudice. (Doc. # 31.) Mr. Price filed objections on February 23, 2009, a ss e rtin g ineffective assistance of counsel resulting in violations of both the Sixth and F o u rte e n th Amendments to the Constitution. (Doc. # 34.) H a v in g conducted an independent and de novo review of those portions of the R e c o m m e n d a tio n to which objection is made, see 28 U.S.C. 636(b)(1), the court finds that th o s e objections regarding Sixth Amendment violations and ineffective assistance of counsel sim p ly restate the content of the original petition and that the Magistrate Judge has accurately a n d thoroughly addressed the reasons for the petition's failure. It is unclear whether Mr. Price's Fourteenth Amendment claim is independent from h is ineffective assistance of counsel claim, but assuming, arguendo, that this claim is both v ia b le and independent, the court declines to consider this ground for relief because it was n o t raised in the original petition. See Williams v. McNeil, __ F.3d__, 2009 WL 311298 *4 (1 1 th Cir.) (holding that a district court, in its discretion, may decline to consider arguments w h ic h were not first presented to the magistrate judge). Even if the Fourteenth Amendment c la im had been properly presented and exhausted, the unexhausted ineffective assistance of c o u n s e l claim required dismissal of the entire petition because "a district court must dismiss h a b e a s petitions containing both unexhausted and exhausted claims," Rose v. Lundy, 455 U .S . 509, 522 (1982). Accordingly, it is ORDERED that: 1. 2. 3. 4. M r. Price's objections (Doc. # 34) are OVERRULED. T h e Recommendation (Doc. # 31) is ADOPTED. M r. Price's petition for habeas corpus relief is DENIED. T h is case is DISMISSED with prejudice. A n appropriate judgment will be entered. D O N E this 6th day of March, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 2

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