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Diago v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
May 31, 2017
CASE NO. 17-21643-CIV-GAYLES/WHITE (S.D. Fla. May. 31, 2017)

Opinion

CASE NO. 17-21643-CIV-GAYLES/WHITE

05-31-2017

ERICK JAVIER DIAGO, Movant, v. UNITED STATES OF AMERICA, Respondent.


ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE

THIS CAUSE comes before the Court on Magistrate Judge Patrick A. White's Report of Magistrate Judge ("Report") [ECF No. 5]. Petitioner filed a pro se motion to vacate pursuant to 28 U.S.C. §2255 attacking the constitutionality of his sentence and/or requesting that his conviction not be classified as a crime of violence (the "Motion") [ECF No. 1]. The matter was referred to Judge White, pursuant to 28 U.S.C. § 636(b)(1)(B) and Administrative Order 2003-19 of this Court, for a ruling on all pretrial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 3]. Judge White's Report recommends that the Court deny the Motion to the extent it was brought pursuant to §2255, or, in the alternative, dismiss the Motion for lack of exhaustion to the extent it was brought pursuant to §2241. Petitioner has failed to timely object to the Report.

A district court may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections "pinpoint the specific findings that the party disagrees with." United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006).

This Court finds no clear error with Judge White's well-reasoned analysis and agrees that the Motion must be denied or dismissed.

Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows:

(1) Judge White's Report and Recommendation [ECF No. 5] is AFFIRMED AND ADOPTED and incorporated into this Order by reference;

(2) the Motion [ECF No. 1], when viewed as a Motion pursuant to 28 U.S.C. §2255 is DENIED;

(3) the Motion [ECF No. 1], when viewed as a Motion pursuant to 28 U.S.C. §2241 is DISMISSED for lack of exhaustion;

(4) no certificate of appealability shall issue; and

(5) this case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of May, 2017.

/s/_________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE


Summaries of

Diago v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
May 31, 2017
CASE NO. 17-21643-CIV-GAYLES/WHITE (S.D. Fla. May. 31, 2017)
Case details for

Diago v. United States

Case Details

Full title:ERICK JAVIER DIAGO, Movant, v. UNITED STATES OF AMERICA, Respondent.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Date published: May 31, 2017

Citations

CASE NO. 17-21643-CIV-GAYLES/WHITE (S.D. Fla. May. 31, 2017)