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Alexander Beriguete v. United States of America

December 12, 2011

ALEXANDER BERIGUETE, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.



ORDER DENYING MOTION FOR RECONSIDERATION

THIS MATTER is before me upon Petitioner Alexander Beriguete's Motion for Reconsideration of Order Denying Motion to Vacate Order Adopting Report and Recommendations. (ECF No. 37). Mr. Beriguete contends that reconsideration is proper because he was never given the opportunity to defend his Petition for Writ of Habeas Corpus. The "purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). A motion for reconsideration must demonstrate why the court should reconsider its prior decision and "set forth facts or law of a strongly convincing nature to induce" the court to reverse its prior decision. Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1276 (11th Cir. 2005). Courts generally grant motions for reconsideration when there is "(1) an intervening change in controlling law, (2) the availability of new evidence, and (3) the need to correct clear error or manifest injustice." Id.

As stated in prior orders, the record indicates that the Honorable Judge Patrick A. White issued a Report and Recommendation on September 24, 2010, recommending that the motion to vacate be denied as the claims raised were unsupported by the record or without merit. (ECF No. 28). Beriguete did not object to Judge White's Report. On November 22, 2010, Judge White's Report and Recommendation was affirmed and adopted (ECF No. 29), Beriguete's motion to vacate sentence was denied and the case was closed. On December 15, 2010, the Clerk filed a Notice of Undeliverable Mail indicating that neither the Report and Recommendation nor the order adopting the same were delivered to Beriguete. On April 20, 2011, Beriguete's mailing zip code was updated. On May 21, 2011, the case was reopened and the Clerk was instructed to serve Beriguete with a certified copy of Judge White's Report and Recommendation to the appropriate address. (ECF No. 32). In that order, Beriguete was instructed to file his objections to the Report and Recommendation by June 13, 2011. On July 29, 2011, two months after the case was reopened, I adopted Judge White's Report and Recommendation without objection. (ECF No. 33). The docket reflects that both the order reopening the case and the order adopting the Report and Recommendation was mailed to Beriguete at Reg No. 65175-004, Federal Medical Center, P.O. Box 14500, Lexington, Kentucky 40512-4500. Even assuming, arguendo, that Beriguete had objected to the Report and Recommendation, he would not be entitled to habeas corpus relief because a review of the criminal proceedings reveals that Beriguete was not denied a fundamentally fair trial or due process of the law. The Court has provided Mr. Beriguete numerous opportunities to file his objections to Judge White's September 24, 2010 Report and Recommendation. The Court's ruling is both procedurally and legally proper. Accordingly, I hereby ORDER and ADJUDGE that Mr. Beriguete's Motion for Reconsideration (ECF No. 37) is DENIED.

Copies furnished to:

Patrick A. White, U.S. Magistrate Judge Counsel of record Alexander Beriguete Reg. No. 65175-004 Federal Medical Center/Card P.O. Box 14500 Lexington, KY 40512-4500

20111212

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