Dorta v. UNITED STATES OF AMERICA

Filing 26

ORDER ADOPTING SUPPLEMENTAL REPORT OF THE MAGISTRATE JUDGE (D.E. 22) AND DENYING MOTION FOR RECONSIDERATION (D.E. 19). Signed by Judge Joan A. Lenard on 3/19/2009. (lc2)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 06-22790-CIV-LENARD/WHITE M A C D I E L DORTA, M o v a n t, vs. U N I T E D STATES OF AMERICA, Respondent. ________________________________/ O R D E R ADOPTING SUPPLEMENTAL REPORT OF THE MAGISTRATE J U D G E (D.E. 22) AND DENYING MOTION FOR RECONSIDERATION (D.E. 19) T H I S CAUSE is before the Court on the Supplemental Report of Magistrate Judge W h ite ("Report," D.E. 22), issued on October 27, 2008. In his Report, Magistrate Judge W h ite thoroughly addresses Movant Macdiel Dorta's Motion for Reconsideration ("Motion," D .E . 19), and recommends that the Court deny the Motion. On or about December 2, 2008, M o v a n t filed his Objection to the Report ("Objections," D.E. 25). Therein, Movant fails to a rtic u la te any specific objection to the Report; in a section titled "Specific Objection to the M a g is tra te Judge's Findings," he merely repeats the conclusory statement, "It was error," f o llo w e d by the findings of the Magistrate Judge. (See id. at 5-6.) In any event, pursuant to 2 8 U.S.C. § 636(b)(1), the Court has reviewed the Report, the Objections, and the record and f in d s that, for the reasons laid out by the Magistrate Judge in his Report, the Motion should b e denied.

O n March 14, 2008, this Court entered an Order (see D.E. 18), adopting a Report by M a g is tra te Judge White recommending that Movant's Motion to Vacate Pursuant to 28 U .S .C . § 2255 be denied (see D.E. 11, the "earlier Report"). Pursuant to the Court's Order, th e Motion to Vacate Pursuant to 28 U.S.C. § 2255 was denied and the case was dismissed. (S e e D.E. 18.) On March 25, 2008, Movant filed the instant Motion, contending therein that the Court failed to consider the two affidavits attached to his Objections to the earlier Report th a t he contends support his claims of ineffective assistance of counsel. On March 31, 2008, th e Court referred the Motion to Magistrate Judge White for the limited purpose of a su p p lem en tal report and recommendation regarding the affidavits attached to Movant's O b j e c ti o n s . In the Report, Magistrate Judge White finds that the affidavits do not change the f in d in g s of the earlier Report recommending that Movant's Motion to Vacate Pursuant to 28 U .S .C . § 2255 be denied. One of the affidavits is from Movant's sister; therein, she avers th a t appellate counsel, John Weinberg, advised her that if Movant paid him an additional $ 3 0 ,0 0 0 .0 0 , he could spend more time on Movant's case, hire a private investigator, and p r e p a r e an appellate brief which would guarantee reversal of the convictions and sentences, w i th a remand for a new trial. The Court concurs with Magistrate Judge White's findings th a t there is nothing of record to suggest that appellate counsel was ineffective or that the a v e rm e n ts by Movant's sister in her affidavit are true. First, as noted by the Magistrate Judge in the earlier Report, the evidence against Movant at trial was overwhelming. (See D.E. 11

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a t 11 ("Not only was he arrested at the scene of the planned robbery of a cocaine stash house, h e and his coconspirators were tape-recorded having conversation about their cover stories. A n undercover ATF agent acted as the drug courier whom the conspirators believed to be d issatisfied and looking for someone to rob his employer. Several of [Movant]'s co co n sp irato rs testified against him at trial, and conversations in which he participated were in tro d u c e d against him at trial.").) Therefore, even if Movant's sister's affidavit were true, M o v a n t cannot establish that he was prejudiced by his counsel's alleged behavior because th e re is no reasonable probability that the outcome of his appeal would have been different. S ee Strickland v. Washington, 466 U.S. 668 (1984) (holding that, to prevail on a claim of in e f fe c tiv e assistance of counsel, Movant must establish that (1) his counsel's representation f e ll below an objective standard of reasonableness, and (2) but for the deficiency in re p re se n ta tio n , there is a reasonable probability that the result of the proceeding would have b e e n different). Second, the Court views with suspicion the post-trial, self-serving affidavit o f Movant's sister, especially as her claims are without further support in the record. M o v a n t's appellate counsel, John Weinberg, appointed pursuant to the Criminal Justice Act, f iled a brief on behalf of Movant on appeal that was denied. As pointed out by Magistrate J u d g e White in his Report, "As will be recalled, there was overwhelming evidence [ M o v a n t ]' s involvement in the offenses. Counsel raised the issue he believed to be most m e rito rio u s on appeal. Under these circumstances, [Movant] has failed to establish prejudice a r i s in g from appellate counsel's representation of [Movant]." (D.E. 22 at 3.) The Court

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con curs. A s to the second affidavit, from Movant himself, the Court agrees with Magistrate Ju d g e White that the averments contained therein are either irrelevant or are simply re ite ra tio n s of claims made in his original Motion to Vacate. These claims have already been litig a te d and rejected, and therefore add nothing of substance to his Motion for R e c o n s id e ra tio n . Accordingly, it is hereby ORDERED AND ADJUDGED that: 1. T h e Supplemental Report of Magistrate Judge Patrick A. White (D.E. 22), is s u e d on October 27, 2008, is ADOPTED. 2. D E N IE D . 3. 4. T h i s case remains CLOSED. A ll pending motions not otherwise ruled upon are hereby DENIED as moot. M o v a n t's Motion for Reconsideration (D.E. 19) filed March 25, 2008, is

D O N E AND ORDERED in Chambers at Miami, Florida this 19th day of March, 2009.

_ _ _ _ _ _ _ _ _ _______________________ _ _ _ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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