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, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
J. JESUS PINEDA-PINEDA

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VS.

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UNITED STATES OF AMERICA

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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