Opinion
Case No. 17-60285-Civ-COOKE/WHITE Case No. 95-06031-Cr-COOKE
02-27-2017
CLINTON BURNS, III, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION AND DENYING CERTIFICATE OF APPEALABILITY
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. 3). On February 9, 2017, Judge White issued a Report of Magistrate Judge (ECF No. 7) recommending that (i) Movant's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) be dismissed for lack of jurisdiction for failure to obtain the authorization required by 28 U.S.C. §2244(b)(3) from the Eleventh Circuit Court of Appeals, and (ii) a certificate of appealability be denied.
Movant did not file objections to the Report of Magistrate Judge, and the time to do so has passed. I have considered Judge White's Report and have made a de novo review of the record. I find Judge White's Report clear, cogent, and compelling.
It is ORDERED and ADJUDGED that Judge White's Report (ECF No. 7) 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 27th day of February 2017.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
Clinton Burns, III, pro se
Counsel of record