Opinion
Case No. 15-20113-Civ-COOKE/WHITE Case No. 11-20877-Cr-COOKE
03-30-2016
LAZARO GINEBRA-VERA, 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 1, 2016, Judge White issued a Supplemental Report of Magistrate Judge (ECF No. 21) recommending that: (i) Lazaro Ginebra-Vera's objections to Judge White's initial Report of Magistrate Judge (ECF No. 13) be overruled; (ii) his Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion") (ECF No. 1) be denied; (iii) a certificate of appealability be denied; and (iv) his case be closed.
Movant Lazaro Ginebra-Vera filed objections to Judge White's initial Report of Magistrate Judge on October 2, 2015, arguing that Judge White failed to consider the United States Supreme Court's recent decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015) in determining that Mr. Ginebra-Vera's Motion be denied. In response, I re-referred Mr. Ginebra-Vera's Motion to Judge White for further consideration in light of the Supreme Court's decision in Johnson (ECF No. 14). Judge White then issued a Supplemental Order to Show Cause to the United States (ECF No. 15), which the United States responded to on January 5, 2016 (ECF No. 18). Judge White then issued his Supplemental Report of Magistrate Judge on February 1, 2016, to which Mr. Ginebra-Vera filed his Objections to Magistrate Judge's Supplemental Report and Recommendation (ECF No. 22). I have considered Judge White's Supplemental Report of Magistrate Judge, Mr. Ginebra-Vera's Objections, and have made a de novo review of the record. I find Judge White's Supplemental Report of Magistrate Judge clear, cogent, and compelling.
Therefore, it is hereby ORDERED and ADJUDGED that Judge White's Supplemental Report of Magistrate Judge (ECF No. 21) is AFFIRMED and ADOPTED. Movant Lazaro Ginebra-Vera's Objections (ECF Nos. 13, 22) are OVERRULED and his Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 1) is DENIED. The Clerk is directed to CLOSE this case.
It is FURTHER ORDERED and ADJUDGED that Movant 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 March 2016.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
Lazaro Ginebra-Vera, pro se
Counsel of Record