GREEN v. MCNEIL

Filing 71

ORDER ON REPORT AND RECOMMENDATION: Accepting 67 Report and Recommendation except for statement that J.S. was a minor. 1 Petition for writ of habeas corpus is DENIED. 68 Motion To Remove Strike is DENIED. Signed by SENIOR JUDGE MAURICE M PAUL on 7/14/2011. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DANNY ALLEN GREEN,
Petitioner,
v.

CASE NO. 1:09-cv-00204-MP-GRJ

WALTER A MCNEIL,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 67, the Report and Recommendation of the
Magistrate Judge, recommending that the petition of Mr. Green be denied. The plaintiff filed
objections, Doc. 69, and the Court has made a de novo determination of those portions of the
Report and Recommendation to which objection was made. 28 U.S.C. § 636(b)(1)(C).
The Court agrees that Mr. Green’s claim that the state information was deficient involves
only state law and does not trigger federal constitutional review. Additionally, the Court agrees
that Mr. Green did not exhaust the remain ten claims because he did not include them in his
direct appeal although he should have. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is accepted and incorporated
herein, except for the statement that J.S. was a minor. She was over eighteen at the time
of the incident.1 The petition for a writ of habeas corpus, Doc. 1, is DENIED, and a
certificate of appealability is DENIED. The motion at Doc. 68 is also denied.
DONE AND ORDERED this 14th day of July, 2011

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

1

Compare Doc. 34, Exh. C, p. 172, lines 11-12 (J.S.’s testimony at trial of her birth date)
with Doc. 34, Exh. B, p. 1 (arrest report showing incident involving J.S. took place when she was
19). See also Green v. State, 951 So.2d 962 (Fla.App. 1 Dist.,2007).