Opinion
Criminal Case No. 12-cr-65-JMH
09-22-2017
UNITED STATES OF AMERICA, Plaintiff, v. NATHANIEL GARNER, Defendant.
MEMORANDUM OPINION & ORDER
***
Defendant Nathaniel Garner has filed a pro se motion under 28 U.S.C. § 2255 [DE 825], to which the United States has filed a Response [DE 838] and in further support of which Defendant has filed a Reply [DE 843]. The motion was referred to the Magistrate Judge for a Report and Recommendation. Magistrate Judge Edward B. Atkins has now filed a Report and Recommendation [DE 865]. Defendant does not raise objections to the Magistrate Judge's recommendation that the Court consider his request for relief under 18 U.S.C. § 3582 rather than 28 U.S.C. § 2255.
No objections to the Report and Recommendation have been filed within the fourteen day period provided for in 28 U.S.C. § 636(b)(1). Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Further, the Court concludes that the Report and Recommendation is well supported by the law cited by the magistrate judge and the facts averred in the Petition. Consequently and in the absence of any objections from Defendant Garner, this Court adopts the well-articulated and detailed reasoning set forth in the Report and Recommendation as its own.
Finally, "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Defendant must be able to show that reasonable jurists could find in his favor, and the "question is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). Having carefully considered the matter, this Court concludes that there is no call for a certificate to issue in this matter
Accordingly, IT IS ORDERED:
(1) that the Magistrate Judge's Report and Recommendation [DE 865] is ACCEPTED and ADOPTED as the Court's decision;
(2) that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [DE 825] is DENIED; and
(3) that no certificate of appealability will issue.
This the 22nd day of September, 2017.
Signed By:
Joseph M . Hood
Senior U.S. District Judge