Lowery v. USA

Filing 25

ORDER: IT IS ORDERED adopting the Amended Report and Recommendation of the Magistrate Judge as the Order of this Court;denying Movants Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255;de nying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has not made a substantial showing of the denial of a constitutional right;directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 5/30/2017. (REK)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Keith Edwin Lowery, Jr.,
Movant/Defendant,

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v.

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No. CV-16-01808-PHX-SRB(FJM)
CR-09-01516-PHX-SRB
ORDER

United States of America,

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Respondent/Plaintiff.

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Movant, Keith Edwin Lowery, filed a Motion to Vacate, Set Aside, or Correct

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Sentence pursuant to 28 U.S.C. § 2255 on June 8, 2016. The United States filed its

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response in opposition on August 12, 2016. On September 16, 2016, Movant filed a

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reply.

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The Magistrate Judge filed his original Report and Recommendation on February

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1, 2017, recommending that Movant's Motion to Vacate, Set Aside, or Correct Sentence

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be granted. On March 8, 2017, this Court referred the matter back to the Magistrate Judge

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for further briefing and consideration in light of the Supreme Court’s decision in Beckles
v. United States, 137 S.Ct 886 (2017). The Magistrate Judge filed his Amended Report
and Recommendation on May 3, 2017, changing his prior recommendation in light of

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Beckles. The Amended Report and Recommendation recommended that the Motion to

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Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 be denied. In the
Amended Report and Recommendation, the Magistrate Judge advised the parties that

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they had fourteen days from the date of service of a copy of the Amended Report and
Recommendation within which to file specific written objections with the Court. The
time to file such objections has expired and no objections to the Amended Report and

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Recommendation have been filed.
The Court finds itself in agreement with the Amended Report and
Recommendation of the Magistrate Judge.
IT IS ORDERED adopting the Amended Report and Recommendation of the
Magistrate Judge as the Order of this Court.
IT IS FURTHER ORDERED denying Movant’s Motion to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to
proceed in forma pauperis on appeal because Movant has not made a substantial showing
of the denial of a constitutional right.

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IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.
Dated this 30th day of May, 2017.

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