Opinion
Case No. 17-23701-Civ-COOKE/WHITE 13-20577-Cr-COOKE
11-30-2017
ROBERT BENEBY, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT
THIS MATTER was referred to the Honorable Patrick A. White, United States Magistrate Judge, pursuant to 28 U.S.C. §636(b)(1)(B), Rules 8 and 10 of the Rules Governing Section 2255 Cases in the United States District Courts, and Administrative Order 2003-19 of this Court, for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters (ECF No. 2). On October 17, 2017, Judge White issued a Report of Magistrate Judge (ECF No. 4) recommending that (i) Movant's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) be denied, and (ii) no certificate of appealability issue. Movant filed his Objections on November 9, 2017 (ECF No. 5).
I have considered Judge White's Report, examined the relevant legal authorities, and conducted a de novo review of the record. I find Judge White's Report clear, cogent, and compelling.
It is therefore ORDERED and ADJUDGED that Judge White's Report of Magistrate Judge (ECF No. 4) is AFFIRMED and ADOPTED. Accordingly, the Motion to Vacate Sentence (ECF No. 1) is DENIED. The Clerk is directed to CLOSE this case.
It is FURTHER ORDERED and ADJUDGED that Petitioner has not demonstrated that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 326 (2003); accord Lott v. Attorney Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010) (explaining that a "petitioner need not show he will ultimately succeed on appeal" in order to warrant a certificate of appealability). Accordingly, this Court DENIES a Certificate of Appealability in this case.
DONE and ORDERED in chambers, at Miami, Florida, this 30th day of November 2017.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
Robert Beneby, pro se
Counsel of record