Opinion
Case No. 17-21607-Civ-COOKE/WHITE 16-20548-Cr-COOKE
06-21-2017
HECTOR HERNANDEZ, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'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 May 3, 2017, Judge White issued a Report of Magistrate Judge (ECF No. 5) recommending that (i) Movant Hector Hernandez's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) be denied, (ii) no certificate of appealability issue, and (iii) this case be closed.
Movant did not timely file objections to Judge White's Report. Instead, after the deadline for filing objections, he filed a Motion for Relief from Judgment (ECF No. 7). On May 23, 2017, Judge White filed a Supplemental Report restating the conclusions he reached in his original Report. (ECF No. 8). Movant did not timely file objections to Judge White's Supplemental Report. Instead, after the deadline for filing objections, he filed a Motion to Authorize a Consecutive § 2255 Motion (ECF No. 9). In the interest of bringing this matter to a close, I will construe Movant's untimely Motions as objections to Judge White's Reports.
I have considered Judge White's Reports, Movant's objections, the relevant legal authorities, and the record. I find Judge White's Reports clear, cogent, and compelling.
It is therefore ORDERED and ADJUDGED that Judge White's Report of Magistrate Judge (ECF No. 5) 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 21st day of June 2017.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
Hector Hernandez, pro se
Counsel of record