Barnes v. United States Of America

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 8 Amended Complaint filed by Scott W. Barnes ; adopting Report and Recommendations re 35 Report and Recommendations. Denying Amended Motion to Vacate Sentence; Certificate of Appealability: DENIED; Closing Case. Signed by Judge Robert N. Scola, Jr. on 6/8/2018. (ls) 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.

United States District Court
for the
Southern District of Florida
Scott W. Barnes, Movant,
v.
United States of America,
Respondent.

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Civil Action No. 16-62416-Civ-Scola
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Order Adopting Magistrate Judge’s Report And Recommendation
This case was referred to United States Magistrate Judge Patrick A.
White, consistent with Administrative Order 2003-19 of this Court, for a ruling
on all pre-trial, nondispositive matters and for a report and recommendation
on any dispositive matters. On March 28, 2018, Judge White issued a report,
recommending that the Court deny the amended motion to vacate on the
merits. (R. & R., ECF No. 35.) The Petitioner filed objections to the report.
(Objs., ECF No. 36, 38.) Having reviewed de novo those portions of Judge
White’s report to which Barnes properly objected and having reviewed the
remaining parts for clear error, the Court adopts the report and
recommendation in its entirety.
In his motion, Barnes claims that he was denied effective assistance of
counsel on forty-four (44) grounds. In the report, Judge White thoroughly
analyzed each ground, and correctly found that all lack merit. In his objections,
Barnes objects to Judge White’s findings and conclusions with respect to
nearly every ground; however, most of the objections are improper because
they simply expand upon arguments already made and considered by Judge
White. “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.” Marlite, Inc. v. Eckenrod, 2012 WL 3614212, at *2 (S.D.
Fla. Aug. 21, 2012) (Moreno, J.) (quoting Camardo v. Gen. Motors Hourly-Rate
Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). In addition, many
of the objections are new arguments not initially raised in the motion that the
Court therefore declines to consider. See Williams v. McNeil, 557 F.3d 1287,
1292 (11th Cir. 2009) (the District Court has discretion to decline to consider
arguments raised for the first time in objections to a magistrate’s report and
recommendation).

The Court has considered Judge White’s report, Barnes’s objections, the
record, and the relevant legal authorities. The Court finds Judge White’s report
and recommendation cogent and compelling. The Court affirms and adopts
Judge White’s report and recommendation (ECF No. 35). The Court denies the
amended motion to vacate sentence (ECF No. 8). A certificate of appealability is
denied, and the Court directs the Clerk to close this case. Any pending
motions are denied as moot.
Done and ordered, at Miami, Florida, on June 8, 2018.
_______________________________
Robert N. Scola, Jr.
United States District Judge