Opinion
CASE NO. 13-23666-CIV-SEITZ/WHITE
09-02-2014
VENANCIO OSCAR PIO, Movant, v. UNITED STATES OF AMERICA, Respondent
ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE, DENYING CERTIFICATE OF APPEALABILITY, AND CLOSING CASE
THIS CAUSE is before the Court on the Report of Magistrate Judge [DE-12]. In that Report, Magistrate Judge White recommends that Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence [DE-1] be denied. Specifically, the Report recommends that Movant's first claim - that his sentence was unreasonable because he was not given a minor role reduction - be denied as procedurally barred because Movant failed to raise it on direct appeal and that Movant's second claim - that Movant had ineffective assistance of counsel at sentencing - be denied as without merit. Movant has filed Objections to the Report [DE-13]. Having considered the Report, the Movant's Objections, and the record, the Court finds that the Magistrate Judge was not clearly erroneous in his factual summary of the record and his legal conclusions correctly applied the law to the facts. Therefore, the Court will overrule the Objections, affirm the Report and deny the motion.
Movant's Objections
While Movant appears to object to the recommendation as to the first claim, a reading of his objection indicates that he has just repeated the findings of the Report without actually raising any objections to the findings. Movant's objection to the recommendation as to his second claim is simply a reiteration of the arguments raised in his motion. Movant has failed to point to an error by the Magistrate Judge. Finally, in his conclusion, Movant raises additional areas in which he alleges counsel was ineffective. Movant did not raise these claims in his Motion, nor has he provided any facts to support these additional claims of ineffective assistance of counsel. Consequently, the Court cannot consider the merits of his unsupported allegations. See Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (stating that "[c]onclusory allegations of ineffective assistance are insufficient.").
An Evidentiary Hearing is Not Required
A court need not hold an evidentiary hearing if the "files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Thus, an evidentiary hearing is not required when the contentions of a movant are affirmatively contradicted by the record or when the contentions of a movant are conclusory and unsupported by specifics. Blackledge v. Allison, 431 U.S. 63, 74 (1977). As set out in the Magistrate Judge's Report and herein, Movant's claims are without merit and thus he is not entitled to an evidentiary hearing.
The Court Will Not Issue A Certificate of Appealability
The Court will deny issuance of a certificate of appealability for Movant's motion pursuant to Rule 11 of the Rules Governing Section 2255 Cases. The Court, having established grounds for entering a "final order adverse to the applicant" on this motion, "must issue or deny a certificate of appealability." In order to obtain a certificate of appealability, Movant must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is satisfied "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Jones v. Secretary, 607 F.3d 1346, 1349 (11th Cir. 2010) (quotation omitted). Here, Movant has not made this showing.
Thus, having carefully reviewed, de novo, Magistrate Judge White's Report, the record, and Movant's objections, it is
ORDERED that:
(1) The above-mentioned Report of Magistrate Judge [DE-12] is AFFIRMED and ADOPTED, and incorporated by reference into this Court's Order;
(2) Movant's Objections [DE-13] are OVERRULED;
(3) Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence [DE-1] is DENIED.
(4) All pending motions not otherwise ruled upon in this Order are DENIED AS MOOT; and
(5) This case is CLOSED.
DONE and ORDERED in Miami, Florida, this 2nd day of September, 2014.
/s/_________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
cc: Magistrate Judge White
All Counsel of Record/Pro se parties