Filed: Aug. 11, 2015
Latest Update: Aug. 11, 2015
Summary: ORDER ROGER VINSON , Senior District Judge . This cause comes on for consideration upon the magistrate judge's report and recommendation dated June 15, 2015. The parties have has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), I have made a de novo determination of those portions to which an objection has been made. The Respondent's objections relate to factual and
Summary: ORDER ROGER VINSON , Senior District Judge . This cause comes on for consideration upon the magistrate judge's report and recommendation dated June 15, 2015. The parties have has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), I have made a de novo determination of those portions to which an objection has been made. The Respondent's objections relate to factual and c..
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ORDER
ROGER VINSON, Senior District Judge.
This cause comes on for consideration upon the magistrate judge's report and recommendation dated June 15, 2015. The parties have has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), I have made a de novo determination of those portions to which an objection has been made. The Respondent's objections relate to factual and credibility determinations made by the magistrate judge after a comprehensive evidentiary hearing. The record fully supports those determinations.
Having considered the report and recommendation, the objections thereto timely filed (doc. 71), and the petitioner's response to the objections (doc. 72), I have determined that the report and recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.
2. The second amended petition for a writ of habeas corpus (doc. 22) is CONDITIONALLY GRANTED only as to Petitioner's claim (claim one) that his conviction and sentence for violating Florida Statutes sections 316.1935, 893.147, and 893.13, when his trial counsel was constitutionally ineffective by defending his case based on the legally impermissible defense of voluntary intoxication — instead of advising Petitioner to accept the State's pretrial plea offer. This violated his federal right to effective assistance of counsel. Therefore, the State shall re-offer the pretrial plea agreement to Petitioner with regard to Bay County Circuit Court Case No. 03-2363 within NINETY (90) DAYS from the date of this order. If Petitioner accepts the offer, it will be left to the state trial court to exercise its discretion in making a determination with regard to Petitioner's convictions and an appropriate sentence, taking into account all of the circumstances in the case.
3. That the remaining claims in the second amended petition for a writ of habeas corpus, claims two through five, (doc. 22) are DENIED.
4. That a certificate of appealability is DENIED as to the remaining claims in the second amended petition for a writ of habeas corpus (doc. 22) and that leave to appeal in forma pauperis is DENIED.
DONE AND ORDERED.
