Opinion
CASE NO. 4:07cv477-SPM/WCS.
January 7, 2010
ORDER
THIS CAUSE comes before the Court for consideration of the magistrate judge's report and recommendation (doc. 14) dated March 12, 2009. Petitioner has filed an objection (doc. 15) pursuant to Title 28, United States Code, Section 636(b)(1). Having considered the objection, I have determined that the report and recommendation should be adopted.
To attack a guilty plea based on ineffective assistance of counsel, a petitioner must show that but for the incompetent advice of counsel, he would not have pleaded guilty and, instead, would have insisted on going to trial. Stano v. Dugger, 921 F.2d 1125, 1149-51 (11th Cir. 1991). Petitioner's first claim fails because he has not established that he told his lawyer that he was tricked into giving the mouth swab. Additionally, even if Petitioner had told his lawyer and a motion to suppress been filed, Petitioner's DNA would not have been suppressed because the DNA could inevitably be obtained by legitimate means. Nix v. Williams, 467 U.S. 431, 441-45 (1984). Petitioner has not shown that he would have insisted on going to trial with the DNA evidence. Accordingly, his first claim fails.
With regard to Petitioner's second and third claims, those claims are based on an issue of state law that cannot lead to habeas corpus relief from this court. Branan v. Booth, 861 F.2d 1508 (11th Cir. 1989). Moreover, Petitioner has not shown that his lawyer's failure to raise the issue caused him to enter a guilty plea instead of going to trial, since he was aware of the issue at the time he entered his guilty plea. Based on the foregoing, it is
ORDERED AND ADJUDGED:
1. The magistrate judge's report and recommendation (doc. 14) is ADOPTED and incorporated by reference in this order.
2. The 28 U.S.C. § 2254 petition, challenging the judgment and twenty year sentenced imposed by the Circuit Court of the Third judicial Circuit, in and for Taylor County, Florida, case number 2000-263-CF, is denied.
DONE AND ORDERED