Opinion
Case No: 18-22622-Civ-COOKE/REID
12-18-2020
KENNY DAVIS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, and ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondent.
Kenny Davis, pro se Counsel of record
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 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254.
• This Court DENIES a Certificate of Appealability.
• The Clerk will CLOSE this case.
DONE and ORDERED in chambers, at Miami, Florida, this 18th day of December 2020.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Lisette M. Reid, U.S. Magistrate Judge
Kenny Davis, pro se
Counsel of record