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Spigner v. U.S., 1:07-CR-355-RWS-JKL-1. (2018)

Court: District Court, N.D. Georgia Number: infdco20180320a41 Visitors: 11
Filed: Mar. 19, 2018
Latest Update: Mar. 19, 2018
Summary: ORDER RICHARD W. STORY , District Judge . This case is before the Court on Movant's 28 U.S.C. 2255 motion to vacate [126], the Final Report and Recommendation ("R&R") of Magistrate Judge John K. Larkins III [127], and Movant's Objections [129]. The Court must "make a de novo determination of those portions of the [R&R] to which objection is made" and "may accept, reject, or modify, in whole or in part, the [R&R]." 28 U.S.C. 636(b)(1)(C). Portions of the R&R to which no objection is ma
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ORDER

This case is before the Court on Movant's 28 U.S.C. § 2255 motion to vacate [126], the Final Report and Recommendation ("R&R") of Magistrate Judge John K. Larkins III [127], and Movant's Objections [129].

The Court must "make a de novo determination of those portions of the [R&R] to which objection is made" and "may accept, reject, or modify, in whole or in part, the [R&R]." 28 U.S.C. § 636(b)(1)(C). Portions of the R&R to which no objection is made are reviewed only for clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per curiam).

Judge Larkins recommended that Movant's § 2255 motion be dismissed as untimely and a Certificate of Appealability be denied. [Doc. 127 at 6]. As Judge Larkins correctly explained, the one-year statute of limitations in 28 U.S.C. § 2255(0(1) expired on February 6, 2010, and Movant executed his § 2255 motion nearly eight years late, on January 2, 2018. [Id. at 3]. Movant failed to (1) argue in favor of the applicability of the one-year statute of limitations in § 2255(f)(2)-(4), (2) show that equitable tolling is justified, or (3) demonstrate actual innocence. [Id. at 3-4]. Movant's Objections do not contain any facts or legal arguments warranting a different conclusion. [Doc. 129 at 1-3].

Based on the foregoing, Movant's Objections [129] are OVERRULED; Judge Larkins's R&R [127] is ADOPTED as the Opinion and Order of the Court; Movant's § 2255 motion [126] is DISMISSED as untimely; and a Certificate of Appealability is DENIED. The Clerk is DIRECTED to CLOSE civil action number 1:18-cv-136-RWS.

SO ORDERED.

Source:  Leagle

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