Mosley v. United States ( 2022 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 20-CV-24386-RAR/BECERRA CARRINGTON KENNETH MOSLEY, Movant, v. UNITED STATES OF AMERICA, Respondent. ____________________________________/ ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION THIS CAUSE comes before the Court upon United States Magistrate Judge Jacqueline Becerra’s Report and Recommendation [ECF No. 27] (“Report”), filed on May 11, 2022. The Report recommends that the Court deny Petitioner’s Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [ECF No. 7] and that no certificate of appealability should issue. Report at 16–17. When a magistrate judge’s “disposition” has properly been objected to, district courts must review the disposition de novo. FED. R. CIV. P. 72(b)(3). However, when no party has timely objected, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged Congress’s intent was to only require a de novo review where objections have been properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). In any event, the “[fJailure to object to the magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (Sth Cir. 1982)). Because the parties have no objections to the Report, the Court did not conduct a de novo review of Magistrate Judge Becerra’s findings. Rather, the Court reviewed the Report for clear error. Finding none, it is ORDERED AND ADJUDGED as follows: 1. The Report [ECF No. 27] is AFFIRMED AND ADOPTED. 2. Petitioner’s Amended Motion to Vacate [ECF No. 7] is DENIED. 3. Any request for a certificate of appealability is DENIED. 4. All pending motions are DENIED as moot. 5. The Clerk is directed to CLOSE the case. DONE AND ORDERED in Fort Lauderdale, Florida, this 27th day of May, 2022. {oouro A. RUIZ I UNITED STATES DISTRICT JUDGE ce: counsel of record Page 2 of 2