United States of America v. Rogers

Filing 18

REPORT AND RECOMMENDATION denying 16 MOTION for Certificate of Appealability filed by AAron Rogers and denying 15 Notice of Appeal, filed by AAron Rogers Objections to R&R due by 7/9/2009. Signed by Magistrate Judge Patrick A. White on 6/18/2009. (tw)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-14404-CIV-GRAHAM (99-14031-CR-MOORE) MAGISTRATE JUDGE P.A. WHITE AARON ROGERS, Movant, v. UNITED STATES OF AMERICA, Respondent. : : : : : REPORT RECOMMENDING DENIAL OF CERTIFICATE OF APPEALABILITY MOTION TO VACATE DE#s 15&16

This Cause is before the Court upon the motion of the movant for certificate of appealability pursuant to 28 U.S.C. §2253 and Fed.R.App.P. 22(b), both as amended April 24, 1996 (DE#s 15 &16). This motion has been referred to the undersigned for consideration and report (DE#17).

A certificate of appealability shall not issue unless the Court rules that upon one or more specific issues the movant has made a substantial showing of the denial of a constitutional right.

To merit a certificate of appealability, the appellant must show that reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issue he seeks to raise. See 28 U.S.C. §2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

After reevaluation of the claims, if the Court grants such a certificate it must state which specific issue or issues satisfy the requirement that the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §2253(c)(2) and (3). Review of the file in this case reveals that no such showing

has been made. In a detailed Report entered by the Undersigned

Magistrate Judge is was recommended that this motion to vacate be dismissed as time barred, and alternatively, denied on the merits. The Report was Adopted by United States District Judge Donald L. Graham.

It is therefore recommended that the Court deny the motion for certificate of appealability. (DE#15 & 16)

Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. Dated this 18th day of June, 2009.

UNITED STATES MAGISTRATE JUDGE cc: Aaron Rogers, Pro Se FCC Coleman Address of Record Attorney's of record

2