Perez v. USA
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate, set aside or correct sentence should be dismisses as barred by the applicable statute of limitations. A certificate of appealability shall not be issued. Signed by Judge Thad Heartfield on 1/3/17. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA
CIVIL ACTION NO. 1:16cv309
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Jason Perez filed the above-styled motion to vacate, set aside or correct sentence. The court
referred the matter to the Honorable Zack Hawthorn, United States Magistrate Judge, for
consideration pursuant to applicable orders of this court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this case. The magistrate judge recommends the motion to vacate, set
aside or correct sentence be dismissed as barred by the applicable statute of limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and
Accordingly, the proposed 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 this motion to vacate, set aside or correct sentence.
In addition, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a
certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of
appealability requires a movant to make a substantial showing of the denial of a federal
constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323,
328 (5th Cir. 2004). In making a 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. Slack, 529 U.S. at 483-84; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a
certificate of appealability should be resolved in favor of the movant. See Miller v. Johnson, 200
F.3d 274, 280- 81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In this case, the movant has not shown that the issue of whether the motion to vacate is barred
by the applicable statute of limitations to vacate is subject to debate among jurists of reason. In
addition, the questions presented are not worthy of encouragement to proceed further. As a result,
a certificate of appealability shall not be issued.
SIGNED this the 3 day of January, 2017.
United States District Judge
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