Miller v. USA
Filing
5
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the motion to vacate be dismissed as barred by the applicable statute of limitations. Signed by Judge Marcia A. Crone on 11/29/16. (mrp, )
UNITED STATES DISTRICT COURT
JAQUINCEY DERRARD MILLER,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:16-CV-349
MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Jaquincey Derrard Miller, an inmate confined within the Bureau of Prisons, 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 Zack Hawthorn, 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 concerning this motion to vacate. The magistrate judge recommends the motion to vacate
be dismissed as barred by the applicable statute of limitations.
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 Report
and Recommendation.
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 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 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 claims are barred by
the applicable statute of limitations 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 not worthy of encouragement to proceed further. As a result, a certificate
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of appealability shall not issue in this matter.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 29th day of November, 2016.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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