Davis v. Florida Department of Corrections ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No: 18-22622-Civ-COOKE/REID KENNY DAVIS, Petitioner, vs. FLORIDA DEPARTMENT OF CORRECTIONS, and ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondent. ___________________________________/ ORDER ADOPTING REPORT OF MAGISTRATE JUDGE THIS MATTER was referred to the United States Magistrate Judge Lisette M. Reid under 28 U.S.C. § 636(b)(1)(B), Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts, and Administrative Order 2019-2, for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters. See ECF No. 37. On November 4, 2020, Judge Reid issued a Report recommending that this Court: 1) deny the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254; and 2) decline to issue a certificate of appealability. See ECF No. 37. Petitioner raised two objections to Judge Reid’s Report: (i) an objection to “the finding that this [Petition] is untimely;” and (ii) an objection to the recommendation that a certificate of appealability be denied. See ECF No. 38. Petitioner’s objections are without merit. First, Judge Reid did not make a finding that the proceeding was untimely. Where, as here, it is unclear whether all claims have been exhausted, a Court may conduct a de novo review of the claims asserted, which is what occurred here. Second, Petitioner’s request for a certificate of appealability is denied because Petitioner has not demonstrated that reasonable jurists would find the court’s assessment of the constitutional claims debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 326 (2003). Accordingly, it is therefore ORDERED and ADJUDGED as follows: • This Court AFFIRMS and ADOPTS Judge Reid’s Report and DENIES the e This Court DENIES a Certificate of Appealability. e The Clerk will CLOSE this case. DONE and ORDERED in chambers, at Miami, Florida, this 18th day of December 2020. Maria 8 Coes MARCIA G. COOKE United States District Judge Copies furnished to: Lisette M. Reid, U.S. Magistrate Judge Kenny Davis, pro se Counsel of record