UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 13-cv-24337-BLOOM

EDDYS FARAMINAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent. / ORDER DENYING MOTION FOR RECONSIDERATION THIS CAUSE is before the Court upon a sua sponte review of the record. On December 2, 2013, Petitioner filed a Motion to Vacate Sentence pursuant to

, alleging in part ineffective assistance of counsel on the grounds, inter alia, that his counsel failed to raise the sufficiency of the evidence on direct appeal. ECF No. [1]. On October 8, 2014, Magistrate Judge Patrick A. White issued a Report of Magistrate Judge, ECF No. [10], recommending that Petitioner’s Motion to Vacate Sentence be denied. As relevant here, the Magistrate Judge concluded that Petitioner’s free-standing claim of ineffective assistance of counsel based on counsel’s failure to file a direct appeal would fail.

at 13 n.3. In doing so, the Magistrate Judge noted that Petitioner “does not allege that he instructed his counsel to file a direct appeal.”

Petitioner did not timely file objections to the Report of Magistrate Judge. ECF No. [11]. On October 28, 2014, Judge Marcia G. Cooke issued an order adopting the Report of Magistrate Judge (“Order”).

On November 6, 2014, Petitioner filed a motion for reconsideration of the Order (“the Motion”). ECF No. [15]. Case No. 13-cv-24337-BLOOM

The Motion asserts that Petitioner specifically requested of his counsel that counsel file a direct appeal and that counsel chose not to do so. /d. at 2-3. The Motion concludes that counsel’s refusal to file an appeal is per se professionally unreasonable and that prejudice must be presumed under these circumstances. /d. (citing Roe v. Flores-Ortega,

,

,

(2000)). “A ‘motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment. This prohibition includes new arguments that were previously available, but not pressed.’” Lopez v. City of West Miami, 662 Fed. App’x. 733, 737-38 (11th Cir. 2016) (quoting Wilchombe v. TeeVee Toons, Inc.,

(11th Cir. 2009)). The Motion raises an argument that was not presented in the operative motion to vacate. As such, the Court declines to consider Plaintiff's argument. Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s Motion for Reconsideration, ECF No. [15], is DENIED. The case shall remain closed. DONE AND ORDERED in Chambers at Miami, Florida, on January 27, 2023.

BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Eddys Faraminan 00103-104 D. Ray James Correctional Institution Inmate Mail/Parcels Post Office Box 2000 Folkston, GA 31537 PRO SE

Case No. 13-cv-24337-BLOOM