Pineda-Pineda v. USA

Filing 8

ORDER adopting 6 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Ron Clark on 2/15/17. (tkd, )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION J. JESUS PINEDA-PINEDA § VS. § UNITED STATES OF AMERICA § CIVIL ACTION NO. 1:13cv679 ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION J. Jesus Pineda-Pineda, proceeding pro se, filed the above-styled motion to vacate, set aside or correct sentence. The court referred the matter to the Honorable Keith F. Giblin, United States Magistrate Judge, for consideration pursuant to applicable orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this case. The Magistrate Judge recommends the motion to vacate, set aside or correct sentence be denied. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and Recommendation. ORDER Accordingly, the proposed 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 denying this motion to vacate, set aside or correct sentence. In addition, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of appealability requires a movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). In making a 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. Slacke, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the movant. See Miller v. Johnson, 200 F.3d 274, 28081 (5th Cir. 2000). In this case, the movant has not shown that the issue of whether his motion to vacate is meritorious is subject to debate among jurists of reason. Nor has he shown that the merits of his grounds for review are subject to debate. In addition, the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not be issued. So Ordered and Signed Feb 15, 2017

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?