EARVEN v. JONES

Filing 21

ORDER ADOPTING 16 REPORT AND RECOMMENDATION. The magistrate judge's report and recommendation (ECF No. 16 ) is hereby ADOPTED and incorporated by reference into this order. Petitioner's petition for writ of habeas corp us (ECF No. 1 ) is DENIED. The clerk shall enter judgment stating: "Gary Earvens petition for writ of habeas corpus is DENIED." A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Signed by SENIOR JUDGE WILLIAM STAFFORD on 10/11/2019. (rcb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

GARY EARVEN,
Petitioner,
v.

4:18cv492–WS/EMT

MARK S. INCH,
Respondent.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the court is the magistrate judge's report and recommendation (ECF
No. 16) docketed August 20, 2019. The magistrate judge recommends that
Petitioner’s petition for writ of habeas corpus be denied on failure-to-exhaust
grounds. Petitioner has filed objections (ECF No. 20) to the magistrate judge’s
report and recommendation.
Having reviewed the record in light of Petitioner’s objections, the
undersigned finds no meritorious basis for rejecting the magistrate judge’s report
and recommendation. Like the magistrate judge, the undersigned finds that
Petitioner failed to present to the state courts a federal constitutional claim based

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on the sufficiency of the evidence—or lack thereof—to support his aggravated
assault conviction. Because Petitioner thus failed to exhaust the federal due process
claim that he raises here, it is ORDERED:
1. The magistrate judge's report and recommendation (ECF No. 16) is
hereby ADOPTED and incorporated by reference into this order.
2. Petitioner’s petition for writ of habeas corpus (ECF No. 1) is DENIED.
3. The clerk shall enter judgment stating: "Gary Earven’s petition for writ of
habeas corpus is DENIED.”
4. A certificate of appealability is DENIED.
5. Leave to appeal in forma pauperis is DENIED.
DONE AND ORDERED this

11th

day of

October

, 2019.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE