BRADLEY v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS
ORDER adopting 26 Report and Recommendation. Signed by William Terrell Hodges on 5/10/2017. The Clerk is directed to enter a judgment which states: "The Amended Petition under 28 U.S.C. § 2254, ECF No. 4 , is denied and a certificate of appealability is denied." The Clerk is directed to close the file. (kdm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
Case No. 1:13-cv-00244-WTH-GRJ
SECRETARY DEPARTMENT OF CORRECTIONS,
This cause comes on for consideration upon the Magistrate Judge's Report
and Recommendation dated December 23, 2016. (Doc. 26). The parties have
been furnished a copy of the Report and Recommendation and have been
afforded an opportunity to file objections pursuant to Title 28, United States
Code, Section 636(b)(1). Plaintiff has filed objections at Doc. 34. I have made a
de novo review based on those objections. Having considered the Report and
Recommendation, and the timely filed objections, I have determined that the
Report and Recommendation should be adopted.
In his objections, Petitioner argues that “in order to show that counsel’s
action was a strategic decision or a tactical decision an evidentiary hearing must
be held.” ECF No. 34 at 7. This is simply not the law, however. It does not
matter whether defense counsel actually reasoned along the lines articulated by
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the Court because the test to be applied is one of objective reasonableness. See
Chandler v. United States, 218 F.3d 1305, 1311 (11th Cir. 2000) (en banc), citing
United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999)(determining – without
district court findings or even an evidentiary hearing – that defendant had not
overcome the presumption of effective assistance because the court could
conceive of numerous reasonable strategic motives for counsel’s actions at trial)
(internal citations omitted)(emphasis supplied). See also, Thomas v. United
States, 596 Fed. Appx. 808, 810 (11th Cir. 2015)(“The test is whether counsel’s
representation fell below an objective standard of reasonableness, not whether
counsel could provide some explanation for their actions.”)
Accordingly, it is hereby
ORDERED AND ADJUDGED:
The magistrate judge’s Report and Recommendation is
adopted and incorporated by reference in this order.
The Clerk is directed to enter a judgment which states: “The
Amended Petition under 28 U.S.C. § 2254, ECF No. 4, is denied and
a certificate of appealability is denied.”
The Clerk is directed to close the file.
DONE and ORDERED at Gainesville, Florida this 10th day of May,
Case No: 1:13-cv-00244-WTH-GRJ
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