Villalobos v. Florida Department of Corrections ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA KEY WEST DIVISION CASE NO. 19-cv-10025-KING/REID PIERSON VILLALOBOS, Petitioner, v. MARK S. INCH, Secretary, Florida Department of Corrections Respondent. ________________________________/ FINAL ORDER OF DISMISSAL THIS CAUSE comes before the Court upon the May 28, 2020 Report and Recommendation (“R&R”) of Magistrate Judge Lisette M. Reid (DE 19), recommending that Petitioner’s petition for writ of habeas corpus (DE 1) pursuant to 28 U.S.C. § 2254 be denied and no certificate of appealability be issued. Petitioner moved for an extension of time to object to the R&R on June 11, 2020, which the Court granted. (DE 20, 21). Petitioner thereafter filed objections to the R&R on August 20, 2020. DE 22. The R&R correctly observed that for Petitioner to prevail in his claim of ineffective assistance of counsel, Petitioner “must demonstrate that: (1) his counsel’s performance was deficient, falling below an objective standard of reasonableness; and, (2) he suffered prejudice resulting from that deficiency.” Strickland v. Washington, 466 U.S. 668, 687 (1984); R&R at 12. Counsel is not ineffective for failing to raise non-meritorious issues. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). And “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. The R&R recommends that Petitioner has failed to show that his counsel was deficient because (among other things) petitioner failed to show that counsel had the “opportunity to investigate and/or preserve DNA evidence at the scene of the crash.” R&R at 16. Furthermore, the R&R recommends that Petitioner’s counsel used a reasonable legal strategy when deciding not to offer the evidence at trial. Id. For these reasons, Magistrate Judge Reid recommends dismissal of this case. Upon consideration of the record and the R&R, the Court finds that Magistrate Judge Reid’s well- reasoned R&R accurately states the law of the case. Accordingly, it is ORDERED, ADJUDGED, and DECREED as follows: 1. Magistrate Judge Reid’s May 28, 2020 Report & Recommendation (DE 19) be, and the same is, hereby AFFIRMED and ADOPTED as an Order of this Court. 2. Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (DE 1) is DENIED. 3. No certificate of appealability shall issue; and 4. The Clerk of Court shall CLOSE this case. DONE and ORDERED in chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 6th day of November, 2020. Jae LAWRENCE KING sf NITED STATES DISTRICT JODGE cc: All counsel of record Magistrate Judge Lisette M. Reid Clerk of Court Pierson Villalobos, pro se