                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 09-10127                    Sept. 4, 2009
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                CLERK


                      D.C. Docket No. 08-80009-CV-KLR

TONY RAMON WILLIS,

                                                         Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (September 4, 2009)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:

      Tony Ramon Willis pleaded guilty to possessing cocaine base with intent to

distribute, and was sentenced to ten years’ imprisonment followed by eight years of
supervised release.

      Willis filed a 28 U.S.C. § 2255 petition seeking to vacate his sentence.

Specifically, Willis contended that his attorney’s failure to contest the sentence before

the district court or appeal the sentence constituted ineffective assistance. An

evidentiary hearing was held before a magistrate judge. The magistrate judge wrote

a report recommending that the district court deny Willis’s § 2255 petition.

      Willis disagreed with the factual findings in the report. He filed objections

contending that the factual findings were not supported by evidence introduced at the

hearing and were based on improper credibility determinations. (R.1-30 at 1-5.)

Willis then filed a motion that noted that a transcript of the hearing before the

magistrate judge was not yet filed, and asked the court to set the time for filing a

memorandum on his objections to the magistrate judge’s report within 30 days of the

filing of the transcript. (R.1-34 at 1-2). On December 2, 2008, the district court

signed an order denying the motion to set a time for filing, adopting the magistrate

judge’s      report and recommendation, and denying Willis’s § 2255 petition

(“December 2nd Order”).1 (R.1-38 at 3.) In its order, the district court stated, “the

magistrate judge stated that he found Movant’s testimony not credible. After a de

novo review of the entire record, including the report and recommendation and


      1
          This order, though signed on December 2nd, was docketed on December 4th.

                                               2
movant’s objections, this Court adopts the magistrate’s report and recommendation

. . . .” (Id.) Absent from the materials the district specifically stated reviewing was

the transcript of the hearing held before the magistrate judge. In fact, the transcript

of the hearing before the magistrate was not filed until December 4, 2008, two days

after the district court’s order.

       Willis appeals the denial of his § 2255 petition.2 He argues that the district

court erred in adopting the magistrate judge’s report and recommendation without

conducting a de novo review of the record, which should have included a review of

the transcript of the hearing before the magistrate judge. The Government agrees that

the district court improperly adopted the magistrate judge’s report and

recommendation, and asks this court to vacate the district court’s December 2nd

Order.

       When a party objects to the findings contained in a magistrate judge’s report



       2
           We granted a certificate of appealability on the following issue:

                         Whether the district court erred in failing to conduct a de
                         novo review of the record with respect to the objections that
                         Willis made to the magistrate judge’s report and
                         recommendation . . . in light of the fact that the evidentiary
                         hearing before the magistrate judge was not transcribed and
                         entered into the record until December 4, 2008, which was
                         [subsequent] to the district court’s entry of its order
                         affirming the magistrate judge’s report . . . .
(R.1-53 at 2.)

                                                   3
and recommendation, the district court must conduct a de novo review of those

findings. 28 U.S.C. § 636(b)(1). When objections are made to findings which the

magistrate judge made based upon the testimony of witnesses, we require the district

court “to review the transcript or listen to the tape-recording of those proceedings.”

LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). In this case, the district

court signed its order adopting the magistrate judge’s report and recommendation

before any transcript of the proceedings before the magistrate judge was available.

The district court erred in adopting the report and recommendation of the magistrate

judge over Willis’s objections without reviewing the transcript of the evidentiary

hearing.   We therefore vacate the December 2nd Order of the district court and

remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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