Orr v. USA

Filing 17

MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion be denied and dismissed. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his petition. A certificate of appealability shall not be issued. Signed by Judge Marcia A. Crone on 3/23/17. (mrp, )

UNITED STATES DISTRICT COURT
PATRICK ORR,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:13-CV-627

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Patrick Orr, an inmate at the Federal Correctional Complex in Yazoo City,
Mississippi, 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 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. No objections to
the Report and Recommendation of United States Magistrate Judge were filed by the parties.
Additionally, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief 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 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. Thus, the movant has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
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
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 23rd day of March, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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