Garavito-Garcia v. United States of America

Filing 25

ORDER adopting 24 Report and Recommendations: Accordingly, the Court hereby adopts the Report and Recommendation, and, for the reasons therein, dismisses the petition with prejudice. In addition, because petitioner has not made a substantial sho wing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. Moreover, the Court certifies that any appeal from this Order would not be taken in good faith, as petitioner's claim lacks a ny arguable basis in law or fact, and therefore permission to proceed in forma pauperis is also denied. See 28 U.S.C. § 1915(a) (3); see also Seimon v. Emigrant Savs. Bank (In re Seimon), 421 F.3d 167, 169 (2d Cir. 2005). The Clerk to enter judgment. (Signed by Judge Jed S. Rakoff on 12/16/2019) (jwh) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x
RAFAEL ANTONIO GARAVITO-GARCIA,
Petitioner,

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _ __µ~-d-tr.-DATE FTI.ED:
17-cv-5798 (JSR) (SLC)

-v-

12-cr-839-1 (JSR)
ORDER

UNITED STATES OF AMERICA,
Respondent.
-------------------------------------x
JED S. RAKOFF, U.S.D.J.

On November 13, 2019, the Honorable Sarah L. Cave, United
States Magistrate Judge, issued a Report and Recommendation in
the above-captioned matter recommending that petitioner Rafael
Antonio Garavito-Garcia's (1) motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255

(the "Habeas

Motion") and (2) subsequent motions to amend the Habeas Motion
be both denied. Petitioner has failed to file any objection to
the Report and Recommendation, and, for that reason alone, has
waived any right to review by this Court. See Thomas v. Arn, 474
U.S. 140, 147-48 (1985); Mario v. P

&

C Food Markets, Inc., 313

F.3d 758, 766 (2d Cir. 2002); Spence v. Superintendent, Great
Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). In
abundance of caution, the Court has reviewed the underlying
record de novo and finds itself in complete agreement with
Magistrate Judge Cave's Report and Recommendation.

Accordingly, the Court hereby adopts the Report and
Recommendation, and, for the reasons therein, dismisses the
petition with prejudice. In addition, because petitioner has not
made a substantial showing of the denial of a constitutional
right, a certificate of appealability will not issue. See 28
U.S.C. § 2253. Moreover, the Court certifies that any appeal
from this Order would not be taken in good faith, as
petitioner's claim lacks any arguable basis in law or fact, and
therefore permission to proceed in forma pauperis is also
denied. See 28 U.S.C. § 1915(a) (3); see also Seimon v. Emigrant
Savs. Bank (In re Seimon), 421 F.3d 167, 169 (2d Cir. 2005). The
Clerk to enter judgment.
SO ORDERED.

Dated:

New York, NY
December JC,, 2019