Melillo v. USA

Filing 17

ORDER adopting Magistrate Judge's Report and Recommendations re 13 Report and Recommendations. Certificate of Appealability: DENIED. The Clerk shall CLOSE this case. Motions Terminated: 13 REPORT AND RECOMMENDATIONS re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Michael James Melillo Recommending that the District Court DENY Michael James Melillo's Motion to vacate, set aside or correct sentence u. Signed by Judge Beth Bloom on 9/6/2018. See attached document for full details. (asl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-80489-BLOOM/Brannon
MICHAEL MELILLO,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court upon Movant Michael Melillo’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence, ECF No. [1], filed on April 18, 2017
(“Motion”).

On March 12, 2018, Magistrate Judge Hopkins issued a Report and

Recommendations (“R&R”), recommending that the Motion be denied. ECF No. [13]. Movant
filed timely objections. Objs., ECF No. [16].
The Court has conducted a de novo review of the portions of the R&R to which Movant
has objected, in accordance with 28 U.S.C. § 636(b)(1)(C), and the remainder of the R&R for
clear error. Taylor v. Cardiovascular Specialists, P.C., 4 F. Supp. 3d 1374, 1377 (N.D. Ga.
2014) (citing United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)). Specifically, Movant
raises seven objections: 1) Movant has made sufficient showing to warrant an evidentiary
hearing in this case; 2) Judge Hopkins erroneously disputes the truth of uncontroverted
statements setting forth the facts relevant to Movant’s argument regarding the voluntariness of
his plea; 3) the ineffective assistance of counsel at sentencing led to the mistaken decision to
proceed pro se; 4) Judge Hopkins omits discussion of much of Movant’s claim regarding access

Case No. 17-cv-80489-BLOOM/Brannon
to necessary materials; 5) the R&R relies on an unpublished decision to support the conclusion
that the defects in the indictment in this case do not undermine Movant’s conviction; 6) the R&R
erroneously concludes that the issues of counsel’s conflict of interest and Movant’s lack of
access to essential materials were adequately presented on appeal; and, 7) Movant objects to the
conclusion that no certificate of appealability should issue in this case based upon his
disagreement with the R&R’s substantive conclusions.
Upon review, the objections are improper because they expand upon and reframe
arguments already made and considered by Magistrate Judge Hopkins, or simply disagree with
Judge Hopkins’s conclusions. “It is improper for an objecting party to . . . submit [ ] papers to a
district court which are nothing more than a rehashing of the same arguments and positions taken
in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a
‘second bite at the apple’ when they file objections to a R & R.” Marlite, Inc. v. Eckenrod, No.
10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen.
Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). As a result,
Movant’s objections are due to be overruled.
Moreover, after careful consideration, the Court finds Judge Hopkins’s R&R to be wellreasoned and correct. Accordingly, it is ORDERED and ADJUDGED as follows:
1. Judge Hopkins’s R&R, ECF No. [13], is ADOPTED IN FULL;
2. The Motion, ECF No. [1], is DENIED;
3. The Certificate of Appealability is DENIED;
4. Any pending motions are DENIED AS MOOT; and
5. The Clerk shall CLOSE this case.

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Case No. 17-cv-80489-BLOOM/Brannon
DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of September,
2018.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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