Cunningham v. Department of Corrections ( 2022 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 0:19-cv-60895-GAYLES/REID PETER CUNNINGHAM, Petitioner, v. MARK INCH, Secretary, Department of Corrections, Defendant. ______________________________________/ ORDER THIS CAUSE comes before the Court on Magistrate Judge Lisette M. Reid’s Report and Recommendation (the “Report”) [ECF No. 18] regarding Petitioner Peter Cunningham’s Petition under 28 U.S.C. § 22554 by a Person in Custody Pursuant to a State Court Judgment (the “Petition”) [ECF No. 1]. On April 4, 2019, Petitioner filed his pro se Petition, pursuant to 28 U.S.C. § 2254, challenging his state court convictions and sentence following a jury verdict in Broward County Circuit Court. [ECF No. 1]. The matter was referred to Judge Reid, pursuant to 28 U.S.C. § 636(b)(1)(B) and Administrative Order 2019-2 of this Court, for a ruling on all pre-trial, non-dispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 2]. On October 20, 2020, Judge Reid issued her Report recommending that the Petition be denied and a certificate of appealability be denied. [ECF No. 18]. On November 6, 2020 and November 9, 2020, Petitioner filed Notices of Appeal to the United States Court of Appeals for the Eleventh Circuit. [ECF Nos. 19 & 20]. On November 23, 2020, the Court closed this matter for administrative purposes pending a resolution of the appeal. [ECF No. 21]. However, no appeal has been filed to date. Moreover, neither party has filed objections to the Report. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). Having reviewed the Report for clear error, the Court agrees with Judge Reid’s well-reasoned analysis and recommendation that the Petition be denied and a certificate of appealability be denied. Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows: 1. Judge Reid’s Report and Recommendation, [ECF No. 18], is AFFIRMED AND ADOPTED and incorporated into this Order by reference. 2. Petitioner Peter Cunningham’s Petition under 28 U.S.C. § 22554 by a Person in Custody Pursuant to a State Court Judgment, [ECF No. 1], DENIED. 3. No certificate of appealability shall issue. DONE AND ORDERED in Chambers at Miami, Florida, this 11th day of March, 2022. of DLs UNITED STATES DISTRICY JUDGE