Perez v. Warden
Filing
27
MEMORANDUM OPINION ADOPTING and ACCEPTING the 26 Magistrate Judge's Report and Recommendation. Signed by Judge Madeline Hughes Haikala on 11/29/2018. (JLC)
FILED
2018 Nov-29 AM 10:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RENALDO DIAZ PEREZ,
Petitioner,
v.
WARDEN,
Respondent.
}
}
}
}
} Case No.: 2:17-cv-2060-MHH-TMP
}
}
}
}
MEMORANDUM OPINION
Renaldo Diaz Perez filed this petition for a writ of habeas corpus on
December 6, 2017. (Doc. 1). Mr. Perez challenges his conviction in Franklin
County Circuit Court for sexual abuse of a minor. (Doc. 1; Doc. 8-1, pp. 8, 26,
30).
The magistrate judge assigned to this case ordered Mr. Perez to explain why
the Court should not dismiss this petition. (Doc. 9). Mr. Perez responded and
explained that he did not understand the seriousness of his state court guilty plea
because of a language barrier, and he asked to be deported to Guatemala. (Doc.
22).
The magistrate judge entered a report in which he recommended that the
Court dismiss Mr. Perez’s request for habeas relief because the petition is a
successive petition (i.e., Mr. Perez previously filed a habeas petition relating to his
state court sentence), and Mr. Perez has not asked the Eleventh Circuit Court of
Appeals for permission to file a second habeas petition. The magistrate judge also
explained that this Court does not have the authority to order Mr. Perez’s
deportation. (Doc. 26).
The magistrate judge gave Mr. Perez notice of the right to object. (Doc. 26,
pp. 8-9). To date, Mr. Perez has not objected to the magistrate judge’s report and
recommendation.
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district court reviews legal conclusions in a report de novo and reviews for plain
error factual findings to which no objection is made. Garvey v. Vaughn, 993 F.2d
776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847 F.2d 745, 749
(11th Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
Based on its review of the record in this case, the Court finds no
misstatements of law in the report and no plain error in the magistrate judge’s
factual findings. Therefore, the Court adopts the magistrate judge’s report and
accepts his recommendation to dismiss Mr. Perez’s habeas petition without
prejudice.
Because Mr. Perez’s petition does not present issues that are debatable
among jurists of reason, the Court will not issue a certificate of appealability. See
2
28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a),
Rules Governing § 2254 Proceedings. Mr. Perez may ask the Eleventh Circuit
Court of Appeals to issue a certificate of appealability.
Rule 11(a), Rules
Governing § 2254 Proceedings; Fed. R. App. P. 22(b). The Court will issue a
separate dismissal order consistent with this memorandum opinion.
DONE this 29th day of November, 2018.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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