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holding that plaintiff's appeal period expired thirty days after the judgment was entered
Summary of this case from Myrtyl v. Nationstar Mortg. LLCOpinion
CASE NO. 13-60664-CIV-COHN/WHITE
01-03-2014
ALIECER ALVAREZ, Petitioner, v. MICHAEL D. CREWS, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Report of Magistrate Judge [DE 15] ("Report and Recommendation") submitted by United States Magistrate Judge Patrick A. White, regarding the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [DE 1] ("Petition") of Aliecer Alvarez. Pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the record herein, including the Petition, Petitioner's Response to Order to Respond to Limitations Period [DE 11], Respondent's Response to Order to Show Cause [DE 13], and the Report and Recommendation, and is fully advised in the premises. The Court notes that no objections to the Report and Recommendation have been filed, and the time for filing such objections has passed.
Alvarez's Petition raises a single claim challenging his convictions and sentences as entered in violation of his due process rights, in light of the recent decision of Shelton v. Sec'y, DOC, 802 F. Supp. 2d 1289 (M.D. Fla. 2011), rev'd, 691 F.3d 1348 (11th Cir. 2012), cert. denied, 133 S. Ct. 1856 (U.S. 2013). In the Report and Recommendation, Magistrate Judge White addressed the merits of Alvarez's claim, determined that the claim did not warrant relief, and recommended that the Petition be denied. DE 15 at 11. Magistrate Judge White recommended in the alternative that the Petition be denied as untimely. Id. at 4-11. Magistrate Judge White further recommended that the Court deny a certificate of appealability. Id. at 12-13.
After careful review, the Court agrees with Magistrate Judge White's reasoning, conclusion, and recommendations. The Court will accordingly deny the Petition. The Court will further deny a certificate of appealability because Alvarez has not shown under Slack v. McDaniel, 529 U.S. 473, 484 (2000), that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." In consideration of the foregoing, it is hereby
ORDERED AND ADJUDGED as follows: (1) The Report of Magistrate Judge [DE 15] is ADOPTED. (2) The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [DE 1] is DENIED. (3) Pursuant to Rule 11 (a) of the Rules Governing Section 2254 Cases, Petitioner is DENIED a certificate of appealability. The Court notes that pursuant to Rule 22(b)(1) of the Federal Rules of Appellate Procedure, Petitioner may now seek a certificate of appealability from the Eleventh Circuit. (4) The Court will enter a separate Final Judgment consistent with this Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 3rd day of January, 2014.
__________
JAMES I. COHN
United States District Judge
Copies provided to: Counsel of record via CM/ECF Aliecer Alvarez (pro se)
No. B06768
Everglades Correctional Institution
1599 S.W. 187th Avenue
Miami, FL 33194