Francois v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 20-60062-CIV-COHN/MAYNARD

(CASE NO. 18-60130-CR-COHN) EMMANUEL RODOLE FRANCOIS,

Movant, v. UNITED STATES OF AMERICA,

Respondent.

/ ORDER ADOPTING REPORT OF MAGISTRATE JUDGE THIS CAUSE is before the Court upon the Report Recommending Denial of Motion to Vacate Sentence Under § 2255 [DE 35] (“Report”) submitted by United States Magistrate Judge Shaniek M. Maynard regarding Movant Emmanuel Rodole Francois’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct [DE 1] (“Motion”). The Court has reviewed the Motion, the Report, and the record in this case, and is otherwise advised in the premises. The Court notes that Movant did not file objections to the Report, and the deadline for doing so has passed.

In the Report, Judge Maynard concludes that Movant is entitled to no relief. First, with respect to Movant’s counsel’s failure to file a direct appeal, Judge Maynard found the claim untimely. DE 35 at 11-12. Alternatively, Judge Maynard concluded that the ineffective assistance of counsel claim fails on the merits because Movant cannot establish either that a rational defendant in his position would want to appeal or that Movant reasonably demonstrated to his counsel that he was interested in appealing. See Roe v. Flores-Ortega, 528 U.S. 470 (2000); DE 35 at 16-17. Judge Maynard found Movant’s second claim for relief under Rehaif v. United States untimely as well. DE 35 at 18-19. Judge Maynard also concluded that the second claim fails on the merits because it is procedurally barred. Id. at 20. Judge Maynard concluded that Movant cannot demonstrate cause for not challenging whether the Government had to satisfy the mens rea requirement as to the status element of 18 U.S.C. § 922(g) on direct appeal and prejudice resulting from the omission, or that he is actually innocent. Id. at 20-22.

The Court agrees with Judge Maynard’s analysis and conclusions and adopts the Report in full. The Court will further deny a certificate of appealability because Movant has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Accordingly, it is

ORDERED AND ADJUDGED as follows:

1. The Report Recommending Denial of Motion to Vacate Sentence Under §

2255 [DE 35] is ADOPTED in its entirety; 2. The Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

[DE 1] is DISMISSED with prejudice; 3. Pursuant to Rule 11 of the Rules Governing Section 2255 Cases, Movant is hereby DENIED a certificate of appealabilty because Movant has failed to make a substantial showing that he was denied a constitutional right. The Court notes that pursuant to Rule 22(b)(1) of the Federal Rules of Appellate Procedure, Movant may request issuance of a certificate of appealability from the Eleventh Circuit; and 4. The Clerk of Court is directed to CLOSE this case and DENY as moot all pending motions.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 2nd day of November, 2021.

JAMES |. COHN

Unifed States District Judg Copies provided to:

Magistrate Judge Shaniek M. Maynard Counsel of record via CM/ECF Pro se parties via U.S. mail to address on file