Opinion
Case No.: 1:19-cv-22027-UU/REID Case No.: 1:15-cr-20531-UU-1
09-05-2019
STEPHEN TELEMAQUE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Copies provided: Stephen Telemaque, pro se
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION
This Cause is before the Court upon Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (D.E. 1) (the "Motion").
THE COURT has considered the Motion and is otherwise fully advised in the premises.
This matter was referred to Magistrate Judge Lisette M. Reid, who, on August 8, 2019, issued a Report (the "Report") (D.E. 6) recommending that the Motion be dismissed for lack of jurisdiction because Petitioner filed a prior § 2255 motion, which was denied on the merits and is currently pending appeal, and has not obtained permission from the Eleventh Circuit Court of Appeals to file a successive § 2255 motion. D.E. 6 at 5. Thus, the Report states, this Court is without jurisdiction to entertain the instant Motion. Id. Petitioner, who was given fourteen days to file objections to the Report, did not file objections. See LoConte v. Dugger, 847 F.2d 145 (11th Cir. 1988), cert. denied, 488 U.S. 958 (1988) (holding that failure to file timely objections bars the parties from attacking factual findings on appeal).
Case No. 1:18-cv-23516-UU. Although Petitioner's appeal of his first § 2255 motion is still pending, this Court may properly dismiss the instant § 2255 motion as successive. United States v. Terrell, 141 F. App'x 849, 852 (11th Cir. 2005) (per curiam) (refusing to construe movant's second § 2255 as a motion to amend his initial § 2255 where the district court's denial of his initial § 2255 motion was pending appeal). --------
Upon de novo review, the Court agrees with Magistrate Judge Reid's recommendations and concurs in all her findings. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Report, D.E. 6, is RATIFIED, ADOPTED, and AFFIRMED. It is further
ORDERED AND ADJUDGED that the Motion, D.E. 1, is DISMISSED. It is further
ORDERED AND ADJUDGED that this case is CLOSED.
DONE AND ORDERED in Chambers in Miami, Florida this 5th day of September, 2019.
/s/_________
URSULA UNGARO
UNITED STATES DISTRICT JUDGE Copies provided:
Stephen Telemaque, pro se