Avila v. Hetzel et al
ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS re 1 & 6 Petition for Writ of Habeas Corpus filed by Mario Avila. It is ORDERED that this habeas petition be DENIED and that this action be DISMISSED. The Court further finds that Petitioner is not entitled to a certificate of appealability and, therefore, not entitled to appeal in forma pauperis. Signed by Senior Judge Charles R. Butler, Jr on 10/31/2011. copies mailed. (sdb)
FOR THE SOUTHERN DISTRICT OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
CIVIL ACTION 11-0123-CB-M
This matter is before the Court on Petitioner’s objections
determination of those portions of the Recommendation to which
objection is made, the Recommendation of the Magistrate Judge
made under 28 U.S.C. § 636(b)(1)(B) is adopted as the opinion of
Petitioner Mario Avila has raised two objections, neither
of which has merit.
First, he argues that the Magistrate Judge
failure to object to the admissibility of prior bad act evidence
when, in fact, his claim was failure to make a proper objection.
This is a distinction without a difference.
Even if Petitioner
could prove that counsel’s performance was unreasonable based on
his failure to object, or even his failure to object properly,
he could not succeed on the prejudice prong of an ineffective
See Strickland v. Washington, 466 U.S. 668,
687 (1984)(to succeed on ineffective assistance of counsel claim
petitioner must prove unreasonable performance and prejudice).
As the Magistrate Judge’s report makes clear, the evidence was
relevant and properly admitted. Petitioner’s second objection is
Judge’s ruling on the related ineffective assistance claim is in
Consequently, this claim does not provide a basis for
It is ORDERED that this habeas petition be DENIED and that
Petitioner is not entitled to a certificate of appealability
and, therefore, not entitled to appeal in forma pauperis.
DONE this 31st day of October, 2011.
s/Charles R. Butler, Jr.
Senior United States District Judge
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