Garland v. State of Florida

Filing 80

ORDER ADOPTING REPORT OF MAGISTRATE JUDGE 52 AND DISMISSING WITHOUT PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS 1 . Signed by Judge Joan A. Lenard on 4/29/2011. (dpv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-61558-CIV-LENARD/WHITE
ANTHONY D. GARLAND,
Petitioner,
vs.
WALTER A. MCNEIL,
Respondent.
________________________________/
ORDER ADOPTING REPORT OF MAGISTRATE JUDGE (D.E. 52) AND
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (D.E. 1)
THIS CAUSE is before the Court on the Report and Recommendation of Magistrate
Judge Patrick A. White (“Report,” D.E. 52), issued on January 13, 2010, recommending this
Court dismiss without prejudice Petitioner’s Anthony D. Garland’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition,” D.E. 1), filed on September 30,
2008. Petitioner raises eight claims for relief in his Petition. The Report finds Petitioner has
not exhausted claims one, two, three, four and six in the state forum. (Report at 4.) As to
claims five, seven and eight, the Report finds that those claims have never been raised in
state court and therefore are procedurally barred due to state law procedural default. (Id. at
6-7.) Ultimately, the Report recommends dismissal without prejudice of the Petition and
counsel the Petitioner to return promptly to this Court after all state court remedies have been
exhausted.
Petitioner filed his Objections to the Report (“Objections,” D.E. 55) on February 1,

2010. The Objections do not address the grounds for dismissal set forth in the report, namely
Petitioner’s failure to exhaust claims in state court and procedural default. The Objections
are therefore without merit. After an independent review of the Report, the Objections, the
Petition and the record, it is hereby ORDERED AND ADJUDGED that:
1.

Consistent with this Order, the Report and Recommendation of Magistrate
Judge Patrick A. White (D.E. 52), issued on January 13, 2010, is ADOPTED;

2.

Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(D.E. 1), filed on September 30, 2008, is DISMISSED WITHOUT
PREJUDICE;

3.

All other pending motions are DENIED AS MOOT;

4.

This case is now CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of April,
2011.
____________________________________
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE

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