Mena v. USA

Filing 10

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate, set aside or correct sentence be denied. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 4/6/17. (mrp, )

UNITED STATES DISTRICT COURT

MICHAEL STEVEN MENA,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 1:16-CV-110

MEMORANDUM ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant, Michael Steven Mena, a prisoner formerly

confined at USP Beaumont,

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 Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends this motion to vacate, set aside, or correct sentence filed
pursuant to 28 U.S.C. § 2255 be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. No
objections to the Report and Recommendation have been filed to date.1

1

A copy of the Report and Recommendation was returned “undeliverable” on March 10, 2017 (docket entry
no. 9).

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 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 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, 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 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).

2

In this case, the movant has not shown that the issues 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 at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 6th day of April, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

3