Burden v. Jones et al (INMATE 1)

Filing 50

ORDER as follows: 1. Mr. Burden's 49 Objections are OVERRULED. 2. The 48 REPORT AND RECOMMENDATION is ADOPTED. 3. Mr. Burden's 1 Petition for Writ of Habeas Corpus is DENIED. 4. This action is DISMISSED with prejudice. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 10/28/2008. (dmn)

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IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A N D R E W PHILLIP BURDEN, P e t i t io n e r , v. K E N N E T H JONES, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) ORDER O n October 3, 2008, the Magistrate Judge filed a Recommendation that the court deny P e titio n e r Andrew Phillip Burden's ("Mr. Burden") 28 U.S.C. 2254 petition and dismiss th is action with prejudice. (Doc. # 48.) Mr. Burden filed objections on October 16, 2008, c h a lle n g in g the Magistrate Judge's Recommendation as to "issues A [and] B." (Doc. # 49.) M r. Burden argues, first, that his murder conviction "cannot be upheld" because there is no d ire c t evidence that he "intended to kill [the] victim," and, second, that the resultant " a cc id e n ta l" shooting presents a "clear case of manslaughter," but not murder. (Doc. # 49 a t 1-2.) Mr. Burden, therefore, says that his 2254 petition should be granted. (Doc. # 49 at 1.) Having 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 objections are made, 28 U.S.C. 636(b)(1)(C), the court finds th a t the objections are without merit. Mr. Burden's first argument plows no new ground; it is addressed fully and soundly in the Magistrate Judge's Recommendation. (See, e.g., Doc. C A S E NO. 3:05-CV-1128-WKW [w o] # 48 at 20 (concluding that Mr. Burden's substantive claim of actual innocence, based "on e v id e n c e presented at trial which indicated he did not intend to kill the victim because his s h o o tin g of the victim was simply an accident," failed to present a proper basis for federal h a b e as relief); Doc. # 48 at 28 ("[V]iewed in a light most favorable to the prosecution," the e v id e n c e and its reasonable inferences showed "that [Mr.] Burden, upon encouragement from h is nephew, shot the victim in the head with a shotgun causing the victim's death" and were "su ff icien t to support a finding of guilt by the jury.").) Turning to Mr. Burden's contention that the evidence supports only a conviction for m a n sla u g h ter , this precise argument presents an entirely new and, resultantly, untimely claim. T o the extent, however, that the argument challenges the jury's finding that Mr. Burden was g u i l t y of murder, that the trial court erred in denying his requested charge on the lesser in c lu d e d offense of criminally negligent homicide, or that counsel was ineffective for failing to request a jury charge on manslaughter, the Magistrate Judge applied the appropriate s ta n d a rd s of review and correctly resolved these issues against Mr. Burden. (See, e.g., Doc. # 49 at 17 n.8, 20-25, 28-29, 31-39.) Mr. Burden simply has not demonstrated any legal or f a c tu a l error in the Recommendation. Accordingly, it is ORDERED as follows: 1. 2. 3. 4. M r. Burden's objections (Doc. # 49) are OVERRULED. T h e Recommendation (Doc. # 48) is ADOPTED. M r. Burden's Petition for Writ of Habeas Corpus (Doc. # 1) is DENIED. T h is action is DISMISSED with prejudice. 2 A n appropriate judgment will be entered. D O N E this 28th day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 3

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