Avila v. Hetzel et al

Filing 18

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
SOUTHERN DIVISION
IN THE UNITED STATES DISTRICT COURT
MARIO AVILA,
:
:
Petitioner,
:
:
vs.
:
CIVIL ACTION 11-0123-CB-M
:
GARY HETZEL,
:
:
Respondent.
:
ORDER

This matter is before the Court on Petitioner’s objections
to

the

Report

and

Recommendation

recommending

that

without

evidentiary

an

consideration

of

the

all

underlying

of

habeas

hearing.

pleadings

in

the

petition

After
this

Magistrate

due

file,

and

Judge

be

denied

and

proper

a

de

novo

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
this Court.
Petitioner Mario Avila has raised two objections, neither
of which has merit.
misinterpreted

his

First, he argues that the Magistrate Judge
first

ineffective

assistance

claim

as

a

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
assistance claim.

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
less

clear.

toxicology

He
report

takes
but

issue
fails

with
to

the

explain

admissibility
why

the

of

the

Magistrate

Judge’s ruling on the related ineffective assistance claim is in
error.

Consequently, this claim does not provide a basis for

habeas relief.
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.
DONE this 31st day of October, 2011.

s/Charles R. Butler, Jr.
Senior United States District Judge