Hernandez-Mendoza v. United States of America

Filing 9

ORDER adopting 7 Report and Recommendation and granting motion to dismiss. Signed by U.S. District Judge Karen E. Schreier on 4/19/16. Certificate of appealability is denied (DJP).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JESE HERNANDEZ-MENDOZA,
Petitioner,
vs.
UNITED STATES OF AMERICA,

5:15-CV-05077-KES
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
GRANTING MOTION TO DISMISS

Respondent.
Petitioner, Jese Hernandez-Mendoza, filed a motion under 28 U.S.C.
' 2255 to vacate, set aside, or correct sentence by a person in federal custody.
The court referred the motion to Magistrate Judge Veronica Duffy. The
Magistrate Judge ordered the parties to file briefs showing cause why the
petition should not be dismissed as untimely pursuant to 28 U.S.C. § 2255(f).
Hernandez-Mendoza did not respond. The United States responded that the
motion should be dismissed as untimely. Docket 5.
On March 29, 2016, Magistrate Judge Duffy submitted a report and
recommended that Hernandez-Mendoza’s petition be denied with prejudice as
untimely. The time for objections has passed. No objections to the report and
recommendation have been filed pursuant to 28 U.S.C. ' 2254, Rule 8(b)(3).
The court has considered the case de novo and adopts the report and
recommendation in full. Therefore, it is

ORDERED that the magistrate judge=s report and recommendation
(Docket ) is adopted in full and Hernandez-Mendez’s § 2255 motion to
vacate, set aside, or correct his sentence is denied with prejudice.
IT IS FURTHER ORDERED that based upon the reasons set forth
herein and pursuant to Fed. R. App. P. 22(b), the court finds that petitioner
has not made a substantial showing of the denial of a constitutional right. 28
U.S.C. ' 2253(c)(2). Therefore, a certificate of appealability is denied.
Dated April 19, 2016.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE