WYCHE v. MCNEIL

Filing 13

ORDER ADOPTING 9 REPORT AND RECOMMENDATION: 1 §2254 Petition is DISMISSED as untimely. Signed by CHIEF JUDGE STEPHAN P MICKLE on 5/12/2010. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION DERRICK L. WYCHE Petitioner, v. WALTER MCNEIL, Respondent. ______________________________/ ORDER THIS CAUSE comes before the Court for consideration of the magistrate judge's report and recommendation (doc. 9) dated April 13, 2010. Petitioner has filed objections (doc. 16) pursuant to Title 28, United States Code, Section 636(b)(1). Despite the objections, I have determined that the report and recommendation should be adopted. The § 2254 petition was not filed within the one year limitations period. Therefore, Petitioner's Youngblood claim is not cognizable unless he can demonstrate that an exception to the limitations period should be applied. Petitioner relies on the actual innocence exception, but he has not demonstrated "that it is more likely than not that no reasonable juror would have found CASE NO. 4:10cv42-SPM/WCS

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petitioner guilty beyond a reasonable doubt," which is the standard that applies. Johnson v. Fla. Dept. of Corr., 513 F.3d 1328, 1333-34 (11th Cir. 2008) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).. Accordingly, it is hereby ORDERED as follows: 1. The magistrate judge's report and recommendation (doc. 9) is

ADOPTED and incorporated by reference in this order. 2. The § 2254 petition (doc. 1), challenging Petitioner's 2003

conviction and sentence for robbery with a weapon and false imprisonment by use of firearm, imposed by the Second Judicial Circuit, Leon County, is dismissed as untimely. DONE AND ORDERED this 12th day of May, 2010.

s/ Stephan P. Mickle
Stephan P. Mickle Chief United States District Judge

CASE NO. 4:10cv42-SPM/WCS