Elawyers Elawyers
Washington| Change

Diaz v. U.S., 2:06-CR-11-RWS-JCF-1. (2017)

Court: District Court, N.D. Georgia Number: infdco20170920b29 Visitors: 3
Filed: Sep. 19, 2017
Latest Update: Sep. 19, 2017
Summary: ORDER MOTION TO VACATE 28 U.S.C. 2255 RICHARD W. STORY , District Judge . This matter is before the Court on the Final Report and Recommendation of Magistrate Judge J. Clay Fuller ("R&R"), recommending that Movant's Federal Rule of Civil Procedure 60(b) motion (Doc. 264) be denied as an impermissibly second or successive 28 U.S.C. 2255 motion. (Doc. 266; see Doc. 265). Movant objects. (Doc. 268). In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determ
More

ORDER

MOTION TO VACATE 28 U.S.C. § 2255

This matter is before the Court on the Final Report and Recommendation of Magistrate Judge J. Clay Fuller ("R&R"), recommending that Movant's Federal Rule of Civil Procedure 60(b) motion (Doc. 264) be denied as an impermissibly second or successive 28 U.S.C. § 2255 motion. (Doc. 266; see Doc. 265). Movant objects. (Doc. 268).

In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate [judge]," 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record" in order to accept the recommendation. Fed. R. Civ. P. 72, advisory committee note, 1983 Addition, Subdivision (b). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court has conducted a de nova review of those portions of the R&R to which Plaintiff objects and has reviewed the remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

It is undisputed that Movant previously filed a § 2255 motion that was dismissed as time-barred and a second § 2255 motion that was dismissed as impermissibly second or successive. (See R&R). In his objections, Movant asks the Court to at least review the merits of his claims, but the Court lacks jurisdiction to do so without authorization from the Eleventh Circuit, which Movant has not obtained. Movant's objections (Doc. 268) are OVERRULED.

The Court ADOPTS the Magistrate Judge's Final Report and Recommendation (Doc. 266) as the Opinion and Order of this Court; DISMISSES Movant's motion (Doc. 264); and DENIES Movant a certificate of appealability.

SO ORDERED.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer