Filed: Mar. 27, 2014
Latest Update: Mar. 27, 2014
Summary: MEMORANDUM OPINION AND ORDER R. DAVID PROCTOR, District Judge. The Magistrate Judge filed a Report and Recommendation on January 16, 2014, recommending that the motion to vacate, set aside, or correct sentence ("Motion") filed by Movant, Corey Trinett Simpson ("Movant"), pursuant to 28 U.S.C. 2255, be denied and dismissed with prejudice. (Doc. # 22). On March 12, 2014, Movant filed objections to the Report and Recommendation. (Doc. # 29). 1 Movant objects on a number of grounds, almost al
Summary: MEMORANDUM OPINION AND ORDER R. DAVID PROCTOR, District Judge. The Magistrate Judge filed a Report and Recommendation on January 16, 2014, recommending that the motion to vacate, set aside, or correct sentence ("Motion") filed by Movant, Corey Trinett Simpson ("Movant"), pursuant to 28 U.S.C. 2255, be denied and dismissed with prejudice. (Doc. # 22). On March 12, 2014, Movant filed objections to the Report and Recommendation. (Doc. # 29). 1 Movant objects on a number of grounds, almost all..
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MEMORANDUM OPINION AND ORDER
R. DAVID PROCTOR, District Judge.
The Magistrate Judge filed a Report and Recommendation on January 16, 2014, recommending that the motion to vacate, set aside, or correct sentence ("Motion") filed by Movant, Corey Trinett Simpson ("Movant"), pursuant to 28 U.S.C. § 2255, be denied and dismissed with prejudice. (Doc. # 22). On March 12, 2014, Movant filed objections to the Report and Recommendation. (Doc. # 29).1
Movant objects on a number of grounds, almost all of which were considered and rejected by the Magistrate Judge. Regarding these objections, Movant presents nothing warranting a departure from the Report and Recommendation. The only objection not addressed by the Magistrate Judge is that, at sentencing, Movant instructed his attorney to appeal regarding the amount of cocaine which he pled guilty to possessing. (Doc. # 29 at 3). Movant contends that his attorney failed to do so. (Id.). As noted in the Report and Recommendation, Movant has filed numerous amendments, motions to amend, and other supplemental pleadings in this case. (E.g. Doc. # 22 at 2, n.1). However, nowhere in Movant's many filings has he alleged that his attorney refused his instruction to file an appeal. The court has discretion whether to address arguments presented for the first time in objections to a Report and Recommendation. Williams v. McNeil, 557 F.3d 1287, 1291-92 (11th Cir. 2009). This court will exercise its discretion by refusing to consider Movant's newly-asserted arguments.2
Having carefully reviewed and considered de novo all the materials in the court file, the court is of the opinion that the Magistrate Judge's findings are due to be and are hereby ADOPTED and his recommendation is ACCEPTED. Movant's objections (Doc. # 29) are hereby OVERRULED. Accordingly, the petition for writ of habeas corpus is due to be denied and dismissed with prejudice.
Finally, in accordance with Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue or deny a certificate of appealability. 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). To make such a showing, a "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that "the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation omitted). Movant has failed to meet this standard. Accordingly, a certificate of appealability is hereby DENIED.
A final judgment will be entered.
