Miller v. USA
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. Signed by Judge Marcia A. Crone on 5/22/17. (mrp, )
UNITED STATES DISTRICT COURT
ALLEN KEITH MILLER,
UNITED STATES OF AMERICA,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:16-CV-226
MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Allen Keith Miller, 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, for consideration. The magistrate judge has submitted a
Report and Recommendation of United States Magistrate Judge recommending the motion to
vacate be denied.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. No objections were filed to the
magistrate judge’s Report and Recommendation.
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
denying this 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 may be considered in
making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
Here, the movant has not shown that any of the issues raised in the motion to vacate are
subject to debate among jurists of reason or that the issues are worthy of encouragement to
proceed further. As a result, a certificate of appealability shall not issue.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 22nd day of May, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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