Murphy v. United States Of America

Filing 9

ORDER Adopting 8 Report, Dismissing Motion to Vacate and Closing Case. Signed by Senior Judge Patricia A. Seitz on 10/20/2020. See attached document for full details. (pa00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 20-CV-22828-SEITZ/REID
(11-CR-20652-SEITZ)

JOSE MURPHY,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
________________________________________/
ORDER ADOPTING REPORT, DISMISSING MOTION TO VACATE
AND CLOSING CASE
THIS CAUSE is before the Court on the Report of the Magistrate Judge [DE 8] recommending that the
Movant’s Motion to Vacate pursuant to 28 U.S.C. § 2255 [DE 1] be dismissed. The Report makes the
recommendation because the Movant failed to comply with the Order that directed him to file a second amended
Motion to Vacate. Movant has not objected to the Report and the time for doing so has elapsed. Having
conducted a de novo review of the record, the Court finds that the Report correctly recommends that the
Movant’s Motion be dismissed pursuant to Fed. R. Civ. P. 41(b) for failing to comply with the Court’s orders.
Movant Jose Murphy is currently serving a 12-month prison sentence for the revocation of his
supervised release in Case No. 11-20652-CR-SEITZ. In the underlying criminal case, Murphy pled guilty to
one count of carjacking in violation of 18 U.S.C. 2119 and was sentenced to 110 months’ imprisonment and
three (3) years of supervised release. [See DE 23, 25, 36, Case No. 11-20652-CR-SEITZ].
On June 2, 2020, Murphy filed a Motion to Vacate his sentence in the underlying criminal case, and on
July 10, 2020, filed an Amended Motion to Vacate [DE 1, 3]. The Magistrate Judge determined that Murphy’s
Amended Motion to Vacate was insufficiently pled because he failed to provide supporting facts for his claims.
The Magistrate Judge ordered the Movant to submit a second amended motion on or before August 17, 2020
and cautioned that failure to comply with that Order would result in dismissal of the action [DE 6 at 7]. The
Movant failed to file a second amended Motion to Vacate as ordered. Thus, the Report recommends that the

Amended Motion to Vacate be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failing to
comply with the Court’s order and to properly litigate the case [DE 8 at 3].
Having conducted a de novo review of the Magistrate Judge’s Report and the record as a whole, it is
clear that the Movant failed to file a second amended Motion to Vacate by August 17, 2020, as ordered.
Furthermore, as of the date of this Order, Movant has still not filed a Second Amended Motion to Vacate
correcting the deficiencies noted in the Magistrate Judge’s July 15, 2020 Order. Nor has Movant filed any
objections to the Report’s recommendation that his Motion to Vacate be dismissed pursuant to Fed. R. Civ. P.
41(b). Therefore, it is
ORDERED THAT
(1) The Report of the Magistrate Judge [DE 8] is AFFIRMED AND ADOPTED, and incorporated by
reference into this Court’s Order;
(2) Movant’s Amended Motion to Vacate [DE 3] is DISMISSED, pursuant to Fed. R, Civ. P. 41(b).
(3) This case is CLOSED.
DONE AND ORDERED in Miami, Florida, this 20th day of October, 2020.

________________________________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE

cc:

Magistrate Judge Reid
All Counsel of Record

2