Wilson v. Pope
Filing
71
ORDER denying as moot 43 Motion to Dismiss; denying as moot 54 Motion for Relief Pending Decision; adopting Report and Recommendations re 59 Report and Recommendations and Denying Petitioners 28 U.S.C. § 2254petition seeking habeas corpus relief [Docs. 1 and 5].Ordered by Judge C. Ashley Royal on 3/15/12 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DONALD PAUL WILSON,
:
:
Petitioner,
:
:
vs.
:
:
GENE POPE,
:
:
Respondent.
:
______________________________________
5:11‐CV‐176 (CAR)
HABEAS CORPUS
28 U.S.C. ' 2254
ORDER ON THE RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the United States Magistrate Judge’s Recommendation
[Doc. 59] to deny Petitioner=s 28 U.S.C. § 2254 petition seeking habeas corpus relief
[Docs. 1 and 5]. Petitioner, proceeding pro se, has filed an Objection to the
Recommendation [Doc. 61]. Having fully considered the record in this case and
making a de novo determination of the portions of the Recommendation to which
Petitioner objects, the Court finds the Objection to be without merit. Thus, the
United States Magistrate Judge’s Recommendation [Doc. 59] to deny Petitioner’s
habeas corpus petition is hereby ADOPTED and MADE THE ORDER OF THE
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COURT, and Petitioner’s petition [Docs. 1 and 5] is hereby DENIED. Having
denied Petitioner’s habeas corpus petition, the Court finds Respondent’s Motion to
Dismiss [Doc. 43] and Petitioner’s Motion for Relief Pending Decision [Doc. 54] to
be MOOT.
As an initial matter, this Court finds that Petitioner’s Notice of Appeal filed
with the Eleventh Circuit Court of Appeals [Doc. 58] does not divest the Court’s
jurisdiction to enter this Order. Generally, “the filing of a notice of appeal divests
the district court of jurisdiction over a case.” Weaver v. Florida Power & Light
Co., 172 F.3d 771, 773 (11th Cir. 1999). However, this general rule “does not apply
to collateral matters not affecting the questions presented on appeal.” Id.
Petitioner’s appeal to the Eleventh Circuit concerns an alleged “inordinate delay”
by this Court in ruling on his petition, a wholly separate and distinct issue from the
instant ruling on the merits of the petition itself. See id. Thus, this Court retains
jurisdiction to enter this Order.
In his Objection, Petitioner simply restates the arguments he made in his
original petition which, despite Petitioner’s contentions otherwise, have been fully
addressed by the Magistrate Judge in his Recommendation. As thoroughly
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explained by the Magistrate Judge, the state court’s disposal of Petitioner’s
challenges to the validity of his conviction because they failed to attack the
voluntary nature of his guilty plea or the advice he received from counsel, is
consistent with clearly established federal law. Moreover, regarding Petitioner’s
ineffective assistance of counsel claims, the record supports the state court’s
determination that counsel’s legal conclusions and recommendation to accept the
plea agreement were competent and reasonable, and Petitioner’s guilty plea was
knowing and voluntary. This Court agrees with the Magistrate Judge=s reasoning
and conclusions as set forth in the Recommendation.
Accordingly, the Recommendation to Deny Relief [Doc. 59] is ADOPTED
and MADE THE ORDER OF THIS COURT, and Petitionerʹs 28 U.S.C. § 2254
petition seeking habeas corpus relief [Docs. 1 and 5] is DENIED. Because it does
not appear that Petitioner has made a substantial showing of the denial of a
constitutional right, a certificate of appealability is DENIED. Having denied the
habeas corpus petition, the Court finds that Respondent’s Motion to Dismiss [Doc.
43] and Petitioner’s Motion for Relief Pending Decision [Doc. 54] are MOOT.
SO ORDERED, this 15th day of March, 2012.
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S/ C. Ashley Royal______
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
SSH
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