Clark v. Schriro et al
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|Date Filed||#||Document Text|
|March 19, 2012
ORDER ACCEPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATIONS 54 : The objections are overruled to the extent indicated above. Upon this Court's de novo review of part of Ground V,10 the Court finds that counsel was not ineff ective. Accordingly, the amended petition for writ of habeas corpus (Doc. 17) is denied with prejudice, and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, in the event Petitioner files an appeal, the Court grants in part and denies in part the certificate of appealability. As to Ground V and VII, the Court finds that Petitioner has stated a claim of constitutional magnitude as to the foll owing theories ofineffective assistance of counsel: (1) "trial counsel was ineffective in failing to preserve the issue of observational evidence," (2) "defendant was not competent for the entire trial and trial counsel...failed to req uest a re-evaluation; that defendant's competency deteriorated during the trial and counsel...failed to request re-evaluation, " (3) "appellate counsel... wasineffective because he failed to raise the issue of competency in the appeal and failed to preserve the observational evidence at trial for appellate review and filed to this issue in the appeal;" and the Court grants the certificate of appealability as to these theories. The Court denies the certificate of appealability as to the remainder of Ground V and all other Grounds.. Signed by Judge James A Teilborg on 3/19/12. (LAD)
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