Rodriguez v. USA

Filing 7

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 will not be issued. Signed by District Judge Ron Clark on 7/17/19. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSE LUIS RODRIGUEZ

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 1:16-CV-260

ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant, Jose Luis Rodriguez, an inmate currently confined at FCI Beaumont Low,
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 Giblin, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court. 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 filed pursuant to such order, along with the record, and pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge were filed by the parties.1
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.
Furthermore, 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
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The Report and Recommendation was returned undeliverable on June 12 2019 (docket entry no. 6) and mailed
again to FCI Florence, the address on the return envelope. No acknowledge of receipt has been received nor have any
objections been filed to date.

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.), cert. denied, 531 U.S. 849 (2000).
In this case, movant has not shown that any of the issues would be subject to debate among
jurists of reason. The questions presented are not worthy of encouragement to proceed further.
Therefore, movant has failed to make a sufficient showing to merit the issuance of certificate of
appealability. Accordingly, a certificate of appealability will not be issued.

So Ordered and Signed
Jul 17, 2019

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