DANIELS v. MCDONOUGH

Filing 21

ORDER ON REPORT AND RECOMMENDATION; ADOPTING 20 Report and Recommendations.. Signed by SENIOR JUDGE MAURICE M PAUL on 4/22/2011. The petition under 28 U.S.C. § 2254, Doc. 1 , is denied, and the Clerk is directed to close t his file. The Court finds that Petitioner fails to make a substantial showing of the denial of a constitutional right and the issues are not adequate enough to deserve encouragement to proceed further. Accordingly, no certificate of appealability is appropriate in this case. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
GALVESTER DANIELS,
Plaintiff,
v.

CASE NO. 1:07-cv-00100-MP -GRJ

JAMES R MCDONOUGH,
Defendant.
_____________________________/
ORDER
This matter is before the Court on Doc. 20, Report and Recommendation of the
Magistrate Judge, recommending that this petition under 28 U.S.C. § 2254 be denied. The time
for filing objections has passed, and none have been filed.
For the following reasons, the Court concludes that the Report and Recommendation
should be adopted. First, the Court agrees with the Magistrate Judge’s conclusion that
petitioner’s counsel properly declined to object to the out-of-court identification of the Petitioner
by the victim. The trial court was correct in finding that there was nothing suggestive or
otherwise improper about the out-of-court identification of Petitioner.
The Court also agrees that not calling a second alibi witness was a reasonable strategic
choice by counsel, in that the testimony was likely to be inconsistent with another alibi witness
and that the second alibi witness’ testimony was not "clear and so solid." These negative aspects
of the testimony, combined with the advantage of having the first and last closing arguments if
counsel declined to call a witness, make this decision reasonable under the circumstances.
Finally, the Court agrees with the Magistrate Judge that the comments by the prosecutor

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were invited by or were responsive to the summation of the defense and did not render the trial
fundamentally unfair. Therefore, counsel properly declined to object to them.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is adopted and
incorporated herein.

2.

The petition under 28 U.S.C. § 2254, Doc. 1, is denied, and the Clerk is directed
to close this file.

3.

For the reasons stated above, the Court finds that Petitioner fails to make a
substantial showing of the denial of a constitutional right and the issues are not
adequate enough to deserve encouragement to proceed further. Accordingly, no
certificate of appealability is appropriate in this case.

DONE AND ORDERED this 22nd day of April, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:07-cv-00100-MP -GRJ