Delgado v. USA

Filing 13

MEMORANDUM ORDER adopting the magistrate judge's 11 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 7/20/2017. (bjc, )

UNITED STATES DISTRICT COURT

RUEBEN ALBERTO DELGADO, JR.,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-185

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Rueben Alberto Delgado, Jr., a federal prisoner, proceeding pro se, filed this
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
The court ordered that this matter be referred 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 denying the motion.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, 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.
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; Avila v. Quarterman, 560 F.3d
299, 304 (5th Cir. 2009). If the motion was denied on procedural grounds, the movant must show
that jurists of reason would find it debatable: (1) whether the motion raises a valid claim of the
denial of a constitutional right, and (2) whether the district court was correct in its procedural
ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. 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. 2000).
The movant has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason, or that a procedural ruling is incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. The movant has failed to make
a sufficient showing to merit the issuance of a certification of appealability.
ORDER
Accordingly, the findings of fact and conclusions of law of the magistrate judge are
correct, and the report of the magistrate judge (#11) is ADOPTED. A certificate of appealability

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will not be issued. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation.

So ORDERED and SIGNED this 20th day of July, 2017.

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