Wilmore v. United States of America

Filing 26

Order on Defendants Appeal of Magistrate Judges Order affirmed 25 Appeal/Objection of Magistrate Judge Order to District Court. Signed by Judge Robert N. Scola, Jr on 8/21/2017. (lan)

United States District Court
for the
Southern District of Florida
Herve Wilmore,
Movant
v.
United States of America,
Respondent.

)
)
) Civil Action No. 17-60278-Civ-Scola
)
)

Order on Defendant’s Appeal of Magistrate Judge’s Order
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 August 3, 2017, Judge White issued an order
denying the Movant Herve Wilmore’s motion for bond (ECF No. 21). (Order, ECF
No. 23.) Wilmore has appealed that order. (ECF No. 23.)
Wilmore is currently serving a sentence for conspiracy to defraud the
United States, conspiracy to commit wire fraud, conspiracy to commit
aggravated identity theft, wire fraud, and aggravated identity theft. (Mot. at 1,
ECF No. 1.) Wilmore filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. (Id.) In his motion for bond, Wilmore claims that he should be entitled to
release on bond during these habeas proceedings because he is not a flight risk,
has not committed a violent crime, and his motion to vacate will result in a
reduced sentence. (Mot. for Bond at 1, 4, ECF No. 21.)
A district court may reconsider a magistrate judge’s ruling on a
non-dispositive matter “where it has been shown that the magistrate judge’s
order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A) (2006); see
also Rule 4 of the Local Magistrate Judge Rules. Wilmore’s appeal states, without
more, that he is appealing Judge White’s order. (ECF No. 23.) Nonetheless, the
Court has considered the record, the Motion for Bond, and the relevant legal
authorities, and Judge White’s rulings are not clearly erroneous or contrary to
law.
“A prisoner seeking release pending habeas corpus can be granted bail
under two sets of circumstances: first, he must demonstrate a likelihood of
success on the merits of a substantial constitutional claim; second,
extraordinary and exceptional circumstances must exist which make the grant
of bail necessary to preserve the effectiveness of the habeas corpus relief sought.”
Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990) (citing Calley v.
Callaway, 496 F.2d 701, 702 (5th Cir. 1974)). “Habeas petitioners are rarely
granted release on bail pending disposition or pending appeal.” Nettles v. Jones,

No. 3:17CV337/LAC/EMT, 2017 WL 2821945, at *1 (N.D. Fla. May 31, 2017),
report and recommendation adopted, No. 3:17CV337/LAC/EMT, 2017 WL
2801028 (N.D. Fla. June 28, 2017). Wilmore has provided this Court with no
argument or evidence to meet either set of circumstances. Thus, Judge White’s
ruling clearly is not erroneous or contrary to law.
Accordingly, it is hereby ordered and adjudged that the Magistrate
Judge’s Order on Wilmore’s motion for bond (ECF No. 21) is affirmed.
Done and Ordered in Miami-Dade County, on August 21, 2017.

__________________________
Robert N. Scola, Jr.
United States District Judge