Opinion
CRIMINAL ACTION NO. 1:05-CR-477-2-CC CIVIL ACTION NO. 1:11-CV-1356-CC MOTION TO VACATE 28 U.S.C. § 2255
05-17-2012
JUAN PELAES PEREZ-URENA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the Court on the Final Report and Recommendation [Doc. No. 1595] issued by Magistrate Judge Gerrilyn G. Brill on March 27, 2012, recommending that Petitioner Juan Pelaes Perez-Urena's motion to vacate sentence and a certificate of appealability be denied. The record reflects that no objections to the Final Report and Recommendation have been filed and that the time permitted for filing any such objections has elapsed.
Petitioner did file a notice of appeal [Doc. No. 1597] from the Final Report and Recommendation, but the Final Report and Recommendation is not a final and appealable order. Perez-Priego v. Alachua Cnty. Clerk of Court, 148 F.3d 1272, 1273 (11th Cir. 1998) (citations omitted). Accordingly, Petitioner's filing of the notice of appeal did not confer jurisdiction over the case from this Court to the United Courts of Appeals for the Eleventh Circuit. See United States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir. 2002) (holding that "a premature notice of appeal does not divest the district court of jurisdiction over the case").
Having conducted a plain error review in accordance with United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), the Court finds that the Final Report and Recommendation is correct both in fact and in law. Accordingly, the Court ADOPTS the Final Report and Recommendation as the decision of this Court. The Court hereby DENIES Petitioner's motion to vacate sentence [Doc. No. 1523] and DENIES the issuance of a certificate of appealability.
Further, Petitioner's Motion for Reconsideration [Doc. No. 1497] and Request to Proceed in Forma Pauperis on Appeal [Doc. No. 1601] are DENIED as moot.
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CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE