Filed: Mar. 19, 2014
Latest Update: Mar. 19, 2014
Summary: ORDER JOHN J. O'SULLIVAN, Magistrate Judge. THIS MATTER is before the Court on the Request for Hearing on Writ of Garnishment (DE# 71, 12/27/13) and the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14). Having reviewed the applicable filings and the law, it is ORDERED AND ADJUDGED that the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14) is DENIED. On November 26, 2013, the Court entered an amended judgment which included restit
Summary: ORDER JOHN J. O'SULLIVAN, Magistrate Judge. THIS MATTER is before the Court on the Request for Hearing on Writ of Garnishment (DE# 71, 12/27/13) and the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14). Having reviewed the applicable filings and the law, it is ORDERED AND ADJUDGED that the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14) is DENIED. On November 26, 2013, the Court entered an amended judgment which included restitu..
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ORDER
JOHN J. O'SULLIVAN, Magistrate Judge.
THIS MATTER is before the Court on the Request for Hearing on Writ of Garnishment (DE# 71, 12/27/13) and the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14). Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that the Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74, 1/31/14) is DENIED. On November 26, 2013, the Court entered an amended judgment which included restitution in the amount of $161,583.40. See Amended Judgment in a Criminal Case (DE# 67 at 5, 11/26/13). The government has commenced garnishment proceedings in an effort to satisfy the restitution owed. The defendant seeks to hold the garnishment proceedings in abeyance "pending the disposition of his collateral attack on his conviction and sentence." Defendant's Motion to Hold Garnishment Proceeding in Abeyance (DE# 74 at 2, 1/31/14).1 The government objects to the relief requested because "[n]one of the grounds raised in the habeas petition have merit." Government's Response to Defendant's Request for a Hearing and Motion to Hold Garnishment Proceedings in Abeyance (DE# 78 at 4, 2/12/14). The undersigned notes that the defendant merely states that he has collaterally attacked his conviction and sentence and does not assert that he has a particularly strong likelihood of success on the merits of his habeas motion.2 The filing of a habeas motion is a common occurrence and absent additional grounds is insufficient to warrant the stay of garnishment proceedings to enforce this Court's restitution order. It is further
ORDERED AND ADJUDGED that the Request for Hearing on Writ of Garnishment (DE# 71, 12/27/13) is GRANTED. Section 3205(c)(5) allows a judgment debtor to file written objections to an answer to a writ of garnishment and to request a hearing within 20 days after receipt of the answer. 28 U.S.C. § 3205(c)(5). Section 3205(c)(5) provides that "[t]he party objecting shall state the grounds for the objection and bear the burden of proving such grounds." Id. The defendant's request for hearing states that "the writ of garnishment was issued in error and that he is otherwise exempt from garnishment of the property the writ is directed at based on Court Order." Request for Hearing on Writ of Garnishment (DE# 71 at 1, 12/27/13). Accordingly, this matter is set for an evidentiary hearing before the undersigned on Monday, March 31, 2014 at 3:00 PM at the C. Clyde Atkins United States Courthouse, 301 North Miami Avenue, 5th Floor, Miami, Florida 33128.
DONE AND ORDERED.
