Gore v. USA

Filing 17

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate be dismissed as successive. A certificate of appealability shall not issue. Signed by Judge Marcia A. Crone on 3/13/13. (mrp, )

UNITED STATES DISTRICT COURT

JERRY W. GORE,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:12-CV-209

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Jerry W. Gore, 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 as successive.
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 the issue of whether his motion to vacate is successive
is subject to debate among jurists of reason or that the issues are worthy of encouragement to
proceed further. As a result, a certificate of appealability shall not issue.
.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Sherman, Texas, this 13th day of March, 2013.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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