SUSSMAN

v.

SECRETARY DEPT OF CORRECTIONS

This Court has considered, without hearing, the Magistrate Judge’s Report and Recommendation, ECF No. 45, and has reviewed de novo Petitioner’s objections, ECF Nos. 47 and 50. This Court has also considered, without hearing, Petitioner’s motion for leave to file a second amended habeas petition. ECF No. 46. Petitioner seeks leave to file a second amended petition to “clarify that [Inmate] Brooks had already told Sussman his testimony would support Sussman’s defense.” See ECF No. 46 ⁋ 4. In Petitioner’s objections, he states, “Brooks personally told me he never received a DR for attacking me, was very remorseful, and fully intended to testify that he attacked me, and I never tried to hit him in defense.” ECF No. 47 ⁋ 3. Neither Petitioner’s objections, ECF No. 47, nor his motion for leave to file a second amended habeas petition, ECF No. 46, changes the Magistrate Judge’s

conclusion that Petitioner has not shown that he was actually prejudiced in the DR proceedings, as set forth in the last two paragraphs of the analysis of Ground Two on pages 18-19 of the report and recommendation. Petitioner’s assertions as to what

Brooks said are still speculative. Moreover, the DR team considered evidence supporting Petitioner’s defense, specifically, Petitioner’s own statements and those of Inmate Pagano. In addition, the alleged “factual errors” described in Part A of Petitioner’s

objections, ECF No. 50, are without merit. The Magistrate Judge’s factual determinations are supported by the record. Petitioner’s arguments in Parts B through E of his objections are also without merit. The Magistrate Judge correctly

analyzed Petitioner’s due process challenges to the prison disciplinary proceedings and correctly determined that Petitioner is not entitled to federal habeas relief. To the extent Petitioner makes allegations and arguments that were not previously presented to the Magistrate Judge, this Court declines to consider

them. See Lodge v. Kondaur Capital Corp., 750 F. 3d 1263, 1274 (11th Cir. 2014) (holding that a district court does not abuse its discretion by declining to consider evidence never mentioned before or submitted to the magistrate judge); Williams v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009) (holding that a district court has discretion to decline to consider a party’s argument when that argument was not first presented to the magistrate judge); see also Barcelona v. Rodriguez, 847 F. App’x

739, 741 n.2 (11th Cir. 2021) (holding that the district court acted within its discretion in declining to consider factual allegations and arguments plaintiff presented for the first time in his objections to the report and recommendation). The

Eleventh Circuit has adopted the position of the First, Fifth, Ninth, and Tenth Circuits, that “requiring the district court to consider new arguments raised in the objections effectively would eliminate efficiencies gained through the Magistrates Act and would unfairly benefit litigants who could change their tactics after issuance

of the magistrate judge’s report and recommendation.” Williams, 557 F. 3d at 1291. Accordingly, IT IS ORDERED:

The report and recommendation, ECF No. 45, is accepted and adopted, over the Petitioner’s objections, as this Court’s opinion. Petitioner’s motion for leave to file a second amended habeas petition, ECF No. 46, is DENIED. The Clerk shall enter judgment stating, “Petitioner’s amended habeas petition challenging FDOC

DR Log Nos. 102-160772 and 102-160773, ECF No. 33, is DENIED.” A certificate of appealability is DENIED. The Clerk shall close the file. SO ORDERED on December 6, 2021.

s/Mark E. Walker Chief United States District Judge