Opinion
Case No. 16-20449-Civ-COOKE/WHITE Case No. 13-20676-Cr-COOKE
04-25-2017
TERRENCE RASHOD CLARK, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT
THIS MATTER was referred to the Honorable Patrick A. White, United States Magistrate Judge, for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B),(C); S.D. Fla. Local Rule 1(f) governing Magistrate Judges, S.D. Fla. Admin. Order 2003-19; and, Rules 8 and 10 Governing Section 2255 Cases in the United States District Courts. On March 27, 2017, Judge White issued a Report of Magistrate Judge (ECF No. 42) recommending that (i) the Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) be granted, (ii) the sentence be vacated, and (iii) Movant be resentenced after preparation of an updated PSI. Movant filed Objections to the Report on April 17, 2017. (ECF No. 43). I have considered Judge White's Report, the Objections, and have made a de novo review of the record. I find Judge White's Report clear, cogent, and compelling.
It is therefore ORDERED and ADJUDGED that Judge White's Report (ECF No. 42) is AFFIRMED and ADOPTED. Accordingly, the Motion to Vacate Sentence (ECF No. 1) is GRANTED, the Movant's sentence is VACATED, and Movant shall be RESENTENCED. The Clerk is directed to CLOSE this case.
It is FURTHER ORDERED and ADJUDGED that Movant has not demonstrated 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." Miller-El v. Cockrell, 537 U.S. 322, 326 (2003); accord Lott v. Attorney Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010) (explaining that a "petitioner need not show he will ultimately succeed on appeal" in order to warrant a certificate of appealability). Accordingly, this Court DENIES a Certificate of Appealability in this case.
DONE and ORDERED in chambers, at Miami, Florida, this 25th day of April 2017.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
U.S. Probation
Terrence Rashod Clark, pro se