Robinson v. United States

• Court: District Court, S.D. Florida
• Decided: June 2, 2022
• Docket: 1:20-cv-21615
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-21615-KMM

MARJORIE ROBINSON,

Movant, v.

UNITED STATES OF AMERICA,

Respondent. /

ORDER ON REPORT AND RECOMMENDATION THIS CAUSE came before the Court upon Movant Marjorie Robinson’s (“Movant”) Motion and Memorandum in Support of Motion Under 28 U.S.C. § 2255. (“Mot.”) (ECF Nos. 1, 3). The matter was referred to the Honorable Jacqueline Becerra, United States Magistrate Judge, who issued a Report and Recommendation recommending that Movant’s Motion be DENIED. (“R&R”) (ECF No. 32). Movant did not file objections and the time to do so has passed. The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). With respect to a magistrate judge’s credibility findings, “a district court may not override essential, demeanor-intensive fact finding by a magistrate judge without hearing the evidence itself or citing an exceptional justification for discarding the magistrate judge’s findings.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1250 (11th Cir. 2007). “Rejecting credibility findings made by a magistrate judge without holding a new hearing is permissible only when there is an ‘articulable basis for rejecting the magistrate’s original resolution of credibility.’” Id. (emphasis in original) (citing U.S. v. Marshall, 609 F.2d 152, 155 (5th Cir. 1980)). As set forth in the R&R, Magistrate Judge Becerra finds that (1) Movant’s ineffective assistance of counsel claimed based on her counsel’s failure to advise her of her right to withdraw her guilty plea should be denied, (2) Movant’s ineffective assistance of counsel claimed premised on her counsel’s failure to obtain a continuance of trial should be denied, and (3) the Court should

not issue a certificate of appealability. R&R at 14–20. To assist her in making these findings, Magistrate Judge Becerra held an evidentiary hearing on December 13, 2021. (ECF No. 29). In the R&R, Magistrate Judge Becerra relies heavily on Movant testimony from the evidentiary hearing, as well as the testimony of Movant’s trial counsel, Robert Nicholson (“Nicholson”). R&R at 9–12. Magistrate Judge Becerra specifically finds the testimony of Nicholson to be credible, while also finding Movant’s testimony to be unreliable. Id. at 10. The Court places great weight on Magistrate Judge Becerra’s findings because they are based upon credibility determinations with respect to Movant and Nicholson’s testimony that have not been at all rebutted by Movant. Amlong, 500 F.3d at 1250 (“[A] district court may not override essential, demeanor-intensive fact finding by a magistrate judge without

hearing the evidence itself or citing an exceptional justification for discarding the magistrate judge’s findings.”). As a result, the Court agrees with Magistrate Judge Becerra’s well-reasoned findings in the R&R. Accordingly, UPON CONSIDERATION of the Motion, the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the R&R (ECF No. 32) is ADOPTED. It is FURTHER ORDERED that: 1. Movant Marjorie Robinson’s Motion and Memorandum in Support of Motion Under 28 U.S.C. § 2255 (ECF Nos. 1, 3) is DENIED; 2. No certificate of appealability shall issue; 3. The Clerk of Court is instructed to CLOSE this case; and 4. All pending motions, if any, are DENIED AS MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this27@ day of June, 2022.

MICHAEL MOORE UNITED STATES DISTRICT JUDGE

ce: All counsel of record