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Bernabe v. U.S., 4:03-CR-70-01-HLM-WEJ (2016)

Court: District Court, N.D. Georgia Number: infdco20160923c63 Visitors: 4
Filed: Sep. 22, 2016
Latest Update: Sep. 22, 2016
Summary: ORDER HAROLD L. MURPHY , District Judge . This case is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, which Petitioner filed under 28 U.S.C.A. 2255 (" 2255 Motion") [50], and on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [53]. I. Standard of Review for a Report and Recommendation 28 U.S.C. 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make
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ORDER

This case is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, which Petitioner filed under 28 U.S.C.A. § 2255 ("§ 2255 Motion") [50], and on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [53].

I. Standard of Review for a Report and Recommendation

28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, 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). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir. 1990); Loconte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort, 208 F. App'x at 784. Legal conclusions, of course, are subject to de nova review even if no party specifically objects. United States v. Keel, 164 F. App'x 958, 961 (11th Cir. 2006); United States v. Warren, 687 F.2d 347, 347 (11th Cir. 1982).

II. Background

On August 15, 2016, the Clerk received Petitioner's § 2255 Motion. (Docket Entry No. 50.) In that § 2255 Motion, Petitioner seeks a sentence reduction for a minor role based on United States Sentencing Guideline 3B1.2's Amendment 794. (Id. at 3-4.)

On August 26, 2016, Judge Johnson issued his Final Report and Recommendation. (Docket Entry No. 53.) Judge Johnson recommended that the Court deny Petitioner's § 2255 Motion. (Id.)

Petitioner has not filed Objections to the Final Report and Recommendation. (See generally Docket.) The time period in which Petitioner could file Objections has expired, and the Court concludes that the matter is ripe for resolution.

III. Discussion

The Court agrees with Judge Johnson that Petitioner's sentence reduction claim is not cognizable under § 2255. (Final Report & Recommendation at 2-3.) Further, for the reasons set forth in the Final Report and Recommendation, the Court declines to issue a certificate of appealability. (Id. at 3.) The Court therefore adopts the Final Report and Recommendation, and denies Petitioner's § 2255 Motion.

IV. Conclusion

ACCORDINGLY, the Court ADOPTS the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [53], and DENIES Petitioner's § 2255 Motion [50]. The Court DECLINES to issue a certificate of appealability. Finally, the Court DIRECTS the Clerk to CLOSE the civil case associated with the § 2255 Motion: Civil Action File No. 4:16-CV-0249-HLM-WEJ.

IT IS SO ORDERED.

Source:  Leagle

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