Chery v. United States of America

Filing 48

ORDER Adopting 39 Report and Recommendations. Certificate of Appealability: DENIED. Closing Case. Signed by Judge Darrin P. Gayles (hs01) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 15-62623-CIV-GAYLES/WHITE MARCKENSON CHERY, Movant, v. UNITED STATES OF AMERICA, Respondent. / ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE THIS CAUSE comes before the Court on Magistrate Judge Patrick A. White’s Report of Magistrate Judge (“Report”) [ECF No. 39]. On December 10, 2015, Marckenson Chery (“Movant”) filed his Motion to Vacate pursuant to 28 U.S.C. § 2255 [ECF No. 1]. The matter was referred to Judge White, pursuant to 28 U.S.C. § 636(b)(1)(B) and Administrative Order 2003-19 of this Court, for a ruling on all pretrial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 3]. On May 29, 2016, Movant filed his amended motion to vacate, raising two new claims and abandoning the claims from his original motion to vacate [ECF No. 17]. On February 14, 2017, Judge White issued his Report recommending that Movant’s motion to vacate sentence be denied as untimely. Petitioner has filed timely objections to the Report [ECF No. 47]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). The Court, having conducted a de novo review of the record, agrees with Judge White’s well-reasoned analysis and recommendations. Accordingly, it is ORDERED AND ADJUDGED as follows: (1) Judge White’s Report and Recommendation [ECF No. 39] is AFFIRMED AND ADOPTED and incorporated into this Order by reference; (2) Movant’s Amended Motion to Vacate is DENIED; (3) no certificate of appealability shall issue; and (4) this case is CLOSED. DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of March, 2017. ________________________________ DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?