Williams v. United States of America

Filing 24

REPORT OF MAGISTRATE JUDGE. Recommending 1. The Order Adopting the Report and Recommendation (DE#12) should be vacated. 2. The Objections to the Report and Recommendation (DE#11) should be reviewed, and a new Order then entered. 3. The petitioners motion for certificate of appealability and notice of appeal should then be denied as moot. (DE#17&18). Objections to R&R due by 5/8/2009. Signed by Magistrate Judge Patrick A. White on 4/17/2009. (tw)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-14332-CIV-GRAHAM (03-14033-CR-MIDDLEBROOKS) MAGISTRATE JUDGE P.A. WHITE KYLE EBRITE WILLIAMS, Movant, v. UNITED STATES OF AMERICA, : : : : REPORT OF MAGISTRATE JUDGE

Respondent. : ______________________________ The pro-se petitioner, Kyle Ebrite Williams has filed a notice of appeal (DE#17), and a motion for certificate of appealability (DE#18. The motions have been referred to the Undersigned

Magistrate Judge. (DE#21).

The history of this case is as follows: The petitioner filed a motion to vacate his judgment and sentence in case no. 03-14033Cr-Middlebrooks. A Report was entered on February 3, 2009,

recommending that the motion, assigned case no. 08-14332-civ-Graham be denied. The petitioner filed objections to the Report and Recommendation, entered on February 25, 2009. An Order was entered on that same date, adopting the Report and Recommendation and denying the motion to vacate. (DE#12). In the Order, United States District Judge Donald Graham stated that the time had passed for filing objections. The petitioner then refiled his objections to the Report on March 11, 2009, with a motion to set aside the order

adopting the Report and recommendation, pursuant to Rule 60(b). This was denied by Judge Graham on March 18, 2009.

The petitioner has filed a notice of appeal and certificate of appealability stating that his objections were timely filed (DE#17 and 18).

Close review of the pleadings reveals that, although the petitioner's objections were docketed on February 25, 2009, he signed the objections on February 11, 2009.1 (DE#11 at 7).

Therefore the petitioner's initial objections to the Report and Recommendation were timely filed.

It is therefore recommended as follows:

1.

The Order Adopting the Report and Recommendation (DE#12)

should be vacated.

2.

The Objections to the Report and Recommendation (DE#11)

should be reviewed, and a new Order then entered.

3.
1

The petitioner's motion for certificate of appealability

A pro se prisoner's pleading is deemed filed when delivered to prison officials, for purposes of the AEDPA one-year limitation period. Adams v. United States, 173 F.3d 1339, (11 Cir. 1999). 2

and notice of appeal should then be denied as moot. (DE#17 & 18)

Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.

Dated this 17th

day of April, 2009.

______________________________ UNITED STATES MAGISTRATE JUDGE cc: Kyle Ebrite Williams, Pro Se Reg. No. 74793-004 FCI-Forth Worth Address of Record

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