Godfrey v. United States of America

Filing 6

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate be dismissed without prejudice as successive. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 1/12/17. (mrp, )

UNITED STATES DISTRICT COURT

JAMES ALVIN GODFREY,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-199

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
James Alvin Godfrey, 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 Keith F.
Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to
applicable laws and orders of this court. The magistrate judge has submitted a Report and
Recommendation of United States Magistrate Judge recommending the motion to vacate be
dismissed without prejudice as successive.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Movant filed a notice of appeal that
the court construes as objections to the Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law.

After careful consideration, the court is of the opinion the objections are

without merit. As a prior motion to vacate was dismissed on the merits, the current filing is
successive.

ORDER
Accordingly, movant’s objections to the Report and Recommendation are OVERRULED.
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 dismissing the motion to
vacate.
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 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). To make a substantial showing, the 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 the movant, and the severity of the penalty imposed as a result of
the conviction may be considered in making this determination. See Miller v. Johnson, 200 F.3d
274, 280-81 (5th Cir. 2000).
In this case, the movant has not shown that the issue of whether his motion to vacate is
successive is subject to debate among jurists of reason. The factual and legal questions raised by
movant have been consistently resolved adversely to his position and the questions presented are

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not worthy of encouragement to proceed further. As a result, a certificate of appealability shall
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not issue in this matter.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 12th day of January, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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