Bundrant v. United States of America

Filing 14

MEMORANDUM ORDER OVERRULING MOVANT'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the motion be denied and dismissed. The movant has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Signed by Judge Marcia A. Crone on 8/9/10. (mrp, )

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS CRAIG BUNDRANT, Movant, versus UNITED STATES OF AMERICA, Respondent. CIVIL ACTION NO. 1:07-CV-597 MEMORANDUM ORDER OVERRULING MOVANT'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Movant Craig Bundrant, an inmate at the Neal Unit, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255. The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends that the motion be denied and dismissed. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings and all available evidence. Movant filed objections to the magistrate judge's Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes movant's objections are without merit. For the reasons stated in the Report, movant fails to set forth a meritorious ground for relief and the motion to vacate should be denied. Additionally, this court lacks jurisdiction to entertain movant's claims concerning the execution of his sentence. Section 2255 provides the primary means of collaterally attacking a federal conviction and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Relief under this section is warranted for errors that occurred at trial or sentencing. Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241 is correctly used to attack the manner in which a sentence is executed. Tolliver, 211 F.3d at 877. Thus, movant's claims concerning the calculation of his time credits and the execution of his sentence are not properly brought in this motion to vacate sentence. Further, to entertain a habeas petition brought under 28 U.S.C. 2241, the district court must have jurisdiction over the prisoner, and the district of incarceration is the only district that has jurisdiction. See Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir. 1990). At the time he filed the above-styled action, movant was confined in the Neal Unit in Amarillo, Texas, where he remains. Thus, this court lacks jurisdiction to entertain a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. Accordingly, movant's objections should be overruled. Furthermore, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying a motion under section 2255 may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the movant need not establish that he should prevail 2 on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Here, the movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. In addition, the questions presented are not worthy of encouragement to proceed further. Therefore, the movant has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. ORDER Accordingly, Movant's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's .recommendation. SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 9th day of August, 2010. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 3

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