Opinion
Case No. 5:10cv160/MCR/EMT.
October 25, 2011
ORDER
This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated September 6, 2011 (doc. 25). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). The court has made a de novo determination of timely filed objections (doc. 29).
Specifically, Brown cites Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2321-22 (2009), for the proposition that whether a freestanding claim of actual innocence exists is an open question, and he cites Ninth Circuit precedent which would allow such a claim if the habeas petitioner can "go beyond demonstrating doubt about his guilt, and [] affirmatively prove that he is probably innocent." Baker v. Yates, 339 Fed. Appx. 690, 692-93 (9th Cir. 2009) (internal marks omitted and concluding that the petitioner had not met this standard), cert. denied, 130 S. Ct. 3288 (2010). Brown acknowledges that Eleventh Circuit precedent does not allow for a freestanding actual innocence claim in a noncapital case, but he seeks to preserve the issue. The court reiterates here that there is no basis for concluding that the state court's adjudication of Brown's newly discovered evidence claim is contrary to or an unreasonable application of clearly established federal law. This is not a capital case, and absent a clear holding otherwise by the Supreme Court, this court is bound by Eleventh Circuit precedent, which does not recognize a freestanding innocence claim in a noncapital case. See Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1356 (11th Cir.), cert. denied, 552 U.S. 979 (2007).
Having considered the Report and Recommendation, the objections, and the record of this case, the court concludes 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 petition for writ of habeas corpus (doc. 1) is DENIED.
3. A certificate of appealability is DENIED.