Gaines v. Specks et al
MEMORANDUM OPINION ADOPTING and ACCEPTING the 25 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION and OVERRULING Petitioner's 26 Objections. Signed by Judge Virginia Emerson Hopkins on 5/25/2017. (JLC)
2017 May-25 PM 12:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CHERYL PRICE, Warden;
ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
) Case No. 2:15-cv-1822-VEH-TMP
This is an action by an Alabama state prisoner filed pursuant to 28 U.S.C. §
2254, challenging a conviction of robbery in the first degree that he received in the
Jefferson County Circuit Court on July 18, 2012. On May, 2, 2017, the magistrate
Accordingly, for the reasons stated above, the magistrate judge hereby
RECOMMENDS that, as to the petitioner's claim that his right to
confront his accusers under the Sixth Amendment was violated (Claim
1), the petition for writ of habeas corpus under 28 U.S.C. § 2254 be
conditionally GRANTED, unless, within sixty (60) days, the petitioner
is given a new trial that comports with the Constitution. As to
petitioner’s claims of ineffective assistance related to counsel’s
objections to the introduction of the Rowe interview (Claims 2(a)-(d)),
counsel sufficiently and adequately objected and, therefore, the claims
are meritless and due to be DENIED.1 The magistrate judge further
The magistrate placed a footnote here which read:
recommends, as to the claim of ineffective-assistance-of-counsel relating
to the jury instruction (Claim 2(e)), the claim is meritless and due to be
(Doc. 25 at 77-78). In that same document, the magistrate notified all parties of their
right to object to the recommendation “within fourteen (14) calendar days from the
date the report and recommendation is entered.” (Doc. 25 at 77). The time for filing
objections has now passed. Objections to the recommendation have been filed only
by the Respondents. (Doc. 26).
Having carefully reviewed, de novo, all the information in the Court file,
including the report and recommendation and the objections thereto, the Court is of
the opinion that the magistrate’s recommendation ought to be, and hereby is,
ACCEPTED and ADOPTED as the opinion of this Court. The Court expressly
finds that, for the reasons stated by the magistrate, the petition for writ of habeas
corpus under 28 U.S.C. § 2254 is due to be conditionally GRANTED as to the
petitioner's claim that his right to confront his accusers under the Sixth Amendment
was violated (Claim 1), unless, within sixty (60) days, the petitioner is given a new
Alternatively, if this court is mistaken in the conclusion that counsel adequately
objected to the introduction of the Rowe interview, that failure to object properly
is itself ineffective assistance of counsel for which petitioner would be entitled to
(Doc. 25 at 77, n. 21). The undersigned hereby ACCEPTS and ADOPTS this alternative
trial that comports with the Constitution. In all other respects, the Court expressly
finds that, for the reasons stated by the magistrate, the petition is due to be DENIED.
The Court expressly finds that the objections to the recommendation are due to be,
and hereby are, OVERRULED.
A final order will be entered.
DONE and ORDERED this 25th day of May, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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