Webster v. Singletary

Filing 56

ORDER denying 50 Motion to Vacate ; Adopting 51 Report and Recommendations. Signed by Chief Judge K. Michael Moore on 2/19/2021. See attached document for full details. (tsr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 0:97-cv-07216-KMM
FREDERICK WEBSTER,
Petitioner,
v.
SECRETARY OF FLORIDA
DEPARTMENT OF CORRECTIONS,
Defendant.
/
ORDER ON REPORT AND RECOMMENDATION
THIS CAUSE came before the Court upon pro se Petitioner Frederick Webster’s
(“Petitioner”) Motion to Vacate Void Judgment. (“Mot.”) (ECF No. 50). The Court referred the
matter to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and
Recommendation recommending that the Motion be DENIED. (“R&R”) (ECF No. 51). Petitioner
filed objections. (“Objs.”) (ECF No. 55). The matter is now ripe for review. As set forth below,
the Court ADOPTS the R&R.
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The Court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore required if a party
files “a proper, specific objection” to a factual finding contained in the report. Macort v. Prem,
Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that the objection be sufficiently
specific and not a general objection to the report” to warrant de novo review. Id.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a state criminal conviction in 1997. (“2254 Mot.”) (ECF No. 1). The Court denied

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the petition as untimely, and the United States Court of Appeals for the Eleventh Circuit affirmed.
(ECF Nos. 15, 17, 28). In 2008, Petitioner filed a motion to vacate pursuant to Rule 60 of the
Federal Rules of Civil Procedure. (“First Rule 60 Mot.”) (ECF No. 29). The Court denied that
motion as well. (ECF No. 30). In 2014, Petitioner filed a second motion to vacate. (“Second Rule
60 Mot.”) (ECF No. 34). The Court construed the Second Rule 60 Motion as an unauthorized
successive § 2254 petition and denied for lack of jurisdiction. (ECF Nos. 37, 42). Petitioner
appealed, but the Eleventh Circuit dismissed the appeal, finding that any motion brought under
Rule 60(b) was time-barred and Petitioner’s argument that the Court failed to account for statutory
tolling was barred by the law of the case doctrine. (ECF No. 49). The Eleventh Circuit further
found that, in any event, Petitioner failed to make the requisite showing of actual innocence. Id.
In the Motion, Petitioner argues that the Court failed to consider new evidence of his actual
innocence in deeming the § 2254 Petition time-barred, and that such new evidence entitled
Petitioner to equitable tolling. See generally Mot.
As set forth in the R&R, Magistrate Judge Reid finds that the Motion is meritless. See
generally R&R. Specifically, Magistrate Judge Reid finds that Petitioner’s argument that the
Court, in 1997, failed to consider new evidence of actual innocence is the same argument Petitioner
made in the Second Rule 60 Motion. Id. at 3. Magistrate Judge Reid notes that not only did the
Eleventh Circuit find the claim to be untimely and barred by the law of the case doctrine, but that
even if the Court had failed to the alleged new evidence, Petitioner failed to make the requisite
showing of actual innocence to entitle him to relief. Id. at 3–4. Further, Magistrate Judge Reid
finds that Petitioner failed to successfully argue that the judgment in question is void under Rule
60(b)(4) because Petitioner has not established that (1) the Court lacked jurisdiction to enter the
judgment denying the First Rule 60 Motion as time-barred, or (2) Petitioner was denied due

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process. Id. at 4–5. Accordingly, Magistrate Judge Reid recommends that the Motion be denied.
Id. at 5. This Court agrees.
In the Objections, Petitioner merely re-hashes the arguments presented in his myriad
motions to vacate judgment, including the instant Motion. See generally Mot. Objections are
improper if they expand upon and reframe arguments already made and considered by the
magistrate judge, or simply disagree with the magistrate judge’s conclusions.

See Melillo v.

United States, No. 17-CV-80489, 2018 WL 4258355, at *1 (S.D. Fla. Sept. 6, 2018); see also
Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012)
(citations omitted) (“It is improper for an objecting party to . . . submit [ ] papers to a district court
which are nothing more than a rehashing of the same arguments and positions taken in the original
papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at
the apple’ when they file objections to a R & R.”). Because Petitioner has not properly objected
to the R&R, “the [C]ourt need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Keaton v. United States, No. 14-21230-CIV, 2015 WL
12780912, at *1 (S.D. Fla. May 4, 2015). The Court finds no clear error here.
Accordingly, UPON CONSIDERATION of the Motion, the R&R, the pertinent portions
of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND
ADJUDGED that Magistrate Judge Reid’s Report and Recommendation (ECF No. 51) is
ADOPTED and Petitioner’s Motion to Vacate Judgment (ECF No. 50) is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of February, 2021.

K MI
K. MICHAEL MOORE
MICHAEL
CHIEF UNITED STATES DISTRICT JUDGE
c: All counsel of record

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