Jenkins v. United States of America
MEMORANDUM ORDER adopting the magistrate judge's 23 Report and Recommendation. As a result, a certificate of appealability shall not issue in this matter. Signed by Judge Thad Heartfield on 6/5/2012. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MICHAEL BOYD JENKINS
UNITED STATES OF AMERICA
CIVIL ACTION NO. 1:10-CV-125
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant, Michael Boyd Jenkins, a federal prisoner, 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, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends the motion to vacate, set aside, or correct sentence be
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. No
objections to the Report and Recommendation of United States Magistrate Judge were filed by
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
in this case in accordance with the Magistrate Judge’s recommendations.
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. 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).
In this case, the movant has not shown that the issues of concern are subject to debate
among jurists of reason or worthy of encouragement to proceed further. As a result, a certificate
of appealability shall not issue in this matter.
SIGNED this the 5 day of June, 2012.
United States District Judge
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