Bass v. Hetzel et al (INMATE 2)

Filing 14

ORDER OVERRULING 13 Objection to Report and Recommendation; adopting 12 Report and Recommendation of the Magistrate Judge; ORDERING that this petition for habeas corpus relief is DENIED and this case is DISMISSED with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 11/30/15. (djy, )

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IN THE UNITED STATES DISTRICT COURT FORTHE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION MARK CEDRIC BASS, #279 120, Petitioner, vs. GARY HETZEL, WARDEN, et al., Respondents. ) ) ) ) ) ) ) ) ) CASE NO. 3:12-cv-979-WHA (WO) ORDER This case is before the court on the Recommendation of the Magistrate Judge (Doc. #12), entered on October 22, 2015, and the Petitioner’s Objection (Doc. #13), filed on November 9, 2015. The court has conducted an independent evaluation and de novo review of the file in this case and, having done so, finds the objection to be without merit. Petitioner has filed an objection to the Recommendation wherein the Magistrate Judge recommends that Petitioner’s application for habeas relief be denied and dismissed. Petitioner presented one issue in his petition: he alleged that his trial counsel was ineffective for failing to challenge whether the State’s DNA expert was properly qualified to testify as an expert witness. The Magistrate Judge concluded that Petitioner defaulted his claim for relief. The court agrees. Petitioner, in his objection, essentially re-argues the merits of his ineffectiveness claim. To the extent he asserts additional claims for relief, i.e., ineffective assistance of appellate counsel, a Brady violation, and actual innocence, he may not amend his petition by presenting new claims in his objection. See e.g., Gilmour v. Gates, McDonald & Co., 382, F.3d 1312, 1315 (11th Cir. 2004). For these reasons, the objection is OVERRULED, the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED that this petition for habeas corpus relief is DENIED, and this case is DISMISSED with prejudice. DONE this 30th day of November, 2015. /s/ W. Harold Albritton W. HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE

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