Semien v. United States of America

Filing 9

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate be dismissed without prejudice for want of prosecution. The movant has not shown that any of the issues raised in the motion to vacate are subject to debate among jurists of reason, or that the procedural ruling was incorrect. A Certificate of Appealability shall not issue. Signed by Judge Marcia A. Crone on 8/3/09. (mrp, )

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

ERWIN EUGENE SEMIEN, Movant, versus UNITED STATES OF AMERICA, Respondent.

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CIVIL ACTION NO. 1:08-CV-890

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Erwin Eugene Semien, proceeding pro se, filed 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, for consideration. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge recommending the motion to vacate be dismissed without prejudice for want of prosecution. The court has received the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. No objections were filed to the magistrate judge's Report and Recommendation. ORDER Accordingly, 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 dismissing this motion to vacate. In addition, the court is of the opinion movant is not entitled to a certificate of appealability. An appeal from a judgment denying post-conviction collateral relief may not

proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability 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). To make a substantial showing, the movant need not establish that he would prevail 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. If the petition was dismissed on procedural grounds, the movant must show that jurists of reason would find it debatable: (1) whether the motion to vacate raises a valid claim of the denial of a constitutional right and (2) whether the district court was correct in its procedural ruling. Id. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability should be 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 in the motion to vacate are subject to debate among jurists of reason, or that the procedural ruling was incorrect. As a result, a certificate of appealability shall not issue. . SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 3rd day of August, 2009.

________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

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