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Angel Balbuena v. United States of America

November 30, 2011

ANGEL BALBUENA, MOVANT
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Patrick A. White, U.S. Magistrate Judge

ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION AND ISSUING CERTIFICATE OF APPEALABILITY AS TO CERTAIN CLAIMS

THIS MATTER was referred to the Honorable Patrick A. White, United States Magistrate Judge, pursuant to Administrative Order 2003-19 of this Court, for a ruling on all pre-trial, nondispositive matters and for a Report and Recommendation on any dispositive matters. On November 1, 2011, Judge White issued a Report and Recommendation (ECF No. 21) recommending that (i) the Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) be denied, and (ii) this case be closed. Mr. Balbuena filed objections to the Report on November 23, 2011. (ECF No. 22). I have considered Judge White's Report and Recommendation, and the objections thereto, and have made a de novo review of the record. I find Judge White's Report and Recommendation clear, cogent, and compelling.

It is ORDERED and ADJUDGED that Judge White's Report and Recommendation (ECF No. 21) is AFFIRMED and ADOPTED. Accordingly, the Motion to Vacate Sentence (ECF No. 1) is DENIED. The Clerk is directed to CLOSE this case.

It is FURTHER ORDERED and ADJUDGED that, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, a Certificate of Appealability shall issue as to claims 1 and 5 (as numbered in Judge White's Report). As to these issues, "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).

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