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Wellington L. Farmer v. Edwin Buss

December 1, 2011

WELLINGTON L. FARMER, PETITIONER,
v.
EDWIN BUSS, RESPONDENT.



The opinion of the court was delivered by: Richard Smoak United States District Judge

ORDER

Before me is the Magistrate Judge's Third Report and Recommendation (Doc. 43). Respondent has filed objections (Doc. 46) and Petitioner has replied (Doc. 48). Petitioner has also objected (Doc. 52). I have considered all de novo.

Respondent's Objections

Respondent objects to the Magistrate Judge's finding concerning the exclusion of two black prospective jurors. The Report and Recommendation states that "the trial court's conclusion based upon the record and evidence in front of it was not only erroneous, it was objectively unreasonable." (Doc. 43, p. 47-48). I find that this section of the Report and Recommendation contains a typographical error. Rather than referring to the trial court, the document should have referred to the Rule 3.850 court. This is clear from the sentence following the one in question. Taken together the two sentences should read:

"The 3.850 court's conclusion based on the record and evidence in front of it was not only erroneous, it was objectively unreasonable.

Despite the Rule 3.850 court's unreasonable determination, while Mr. Farmer's Point Three implicates the Due Process Clause, it is not identical to the claim Mr. Farmer raises in the instant habeas proceeding." (Doc. 43, p. 48 (underlined text indicates my alteration)).

I do not accept the Report and Recommendation to the extent that it indicates that the trial court committed error. It is clear from the record that the trial court's decision to exclude a potential black juror whose husband was a witness, and another potential black juror who knew Petitioner on a first name basis was proper. The trial court's decision has not been rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

The Report and Recommendation found that Petitioner's claim failed because it was procedurally defaulted. I agree with this conclusion which serves as an independent basis for denying relief. The discussion regarding the trial court's conclusions are, thus, not relevant to the ultimate conclusion of the Report and Recommendation.

Petitioner's Objections

Petitioner disputes the Magistrate Judge's conclusions but does not raise any actionable error.

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation is adopted and incorporated by reference in this Order with the exceptions discussed in the Order.

2. The 28 U.S.C. ยง2254 petition for writ of habeas corpus ...


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